United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge
Dr. Ravi Gupta filed a motion to compel plaintiff Jessie
Rivera to comply with Federal Rule of Civil Procedure
26(a)(2)(B)(v) by producing a complete list of depositions or
trials at which his expert, Dr. Finley Brown Jr., had
testified in the last four years, and to produce Dr. Brown
for a second deposition concerning his prior testimony. (Dkt.
#79.) The court granted that motion in part, reserved in
part, and directed further briefing by the parties. (1/8/18
Order (dkt. #89).) Having now reviewed the supplement,
plaintiff's brief accompanying that supplement, and
defendant's response, the court will deny any further
relief, and specifically deny defendant's subsequent
request to strike Dr. Gupta.
detailed in defendant's brief in support of his motion to
compel, Dr. Brown initially listed six cases for which he
previously provided testimony. For some of those cases, Dr.
Brown failed to provide the full name of the case or the
court. During his deposition, Dr. Brown also acknowledged
that the list was incomplete, but claimed he did not maintain
a list of cases for which he had previously provided
testimony and simply listed six cases that he remembered.
After his deposition, in response to a letter from
defendant's counsel, plaintiff provided a supplement list
of an additional five cases, without identifying the courts
involved. The supplement was not, however, signed by Dr.
court then ordered that Dr. Brown review his records and
provide a complete list of past testimony consistent with
Rule 26. As detailed in plaintiff's supplemental brief,
Dr. Brown refused to comply further without additional
payment. The court agrees with plaintiff's assessment
that such a demand is not reasonable given that he was
required to provide the necessary disclosures as part of his
original retainer. In light of Dr. Brown's refusal to
comply, plaintiff's counsel took their own extensive
steps to further supplement the list of cases for which Dr.
Brown has provided deposition or trial testimony in the last
four years. (See Pl.'s Suppl. Br. (dkt. #91)
3-4).) The revised list now contains twelves cases, with the
case name, court and law firm that retained Dr. Brown's
services, along with deposition and trial testimony
transcripts for six of the cases. (Pl.'s Suppl. Br., Ex.
1 (dkt. #91-1).)
nevertheless presses for exclusion of Dr. Brown's
testimony from trial under Federal Rule of civil Procedure
37(c)(1) in his supplemental brief. Failure to comply with
Rule 26(a)(2) may result in the offending party not being
allowed to introduce that expert witness's testimony as
“evidence on a motion, at a hearing, or at a
trial.” See Fed. R. Civ. P. 37(c)(1). Indeed,
exclusion of the witness's testimony is “automatic
and mandatory” unless the offending party can establish
“that its violation of Rule 26(a)(2) was either
justified or harmless.” Keach v. U.S. Trust
Co., 419 F.3d 626, 639 (7th Cir. 2005) (quoting
David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th
exceptions apply here. While Dr. Brown refused to comply with
Rule 26, this is not plaintiff's fault and
plaintiff's counsel has taken their own steps to
substantially comply with the disclosure requirements.
Moreover, plaintiff has acknowledged that “Dr. Brown
has made the majority of his income serving as an expert
witness, has been retained twenty to thirty times a year,
almost always by a plaintiff, and he has testified at
deposition six to twelve (or more) times per year and at
trial up to four times a year.” (Pl.'s Suppl. Br.
(dkt. #91) 6.) The supplemental disclosure, coupled with the
production of deposition and trial transcripts, which are not
required under Rule 26, and plaintiff's stipulation is
sufficient to ameliorate any prejudice to defendant.
Regardless, plaintiff has amply justified his inability to
comply any further. If upon review of the supplemental
disclosure, including the trial transcripts, defendant seeks
additional stipulations or other relief, the court would
entertain such a motion.
the court will deny defendant's motion to strike Dr.
Brown's testimony as a sanction under Rule 37.
IT IS ORDERED that defendant Dr. Ravi Gupta's motion to
strike plaintiff's expert Dr. Finley Brown, Jr. (dkt.
##79, 93) is DENIED.
 The court shares plaintiff's
counsel's apparent frustration with Dr. Brown, not least
of which because the lawyers acting as plaintiff's
counsel were themselves recruited by this court to represent
plaintiff on a pro bono basis, and have clearly
devoted significant resources to that representation,
including fronting the costs of this expert. If counsel for
plaintiff could direct the court to some authority for
sanctioning Dr. Brown, the court would be willing to
entertain such a motion. Regardless, by agreeing to act as an
expert in this matter and accepting a sizeable retainer for
his services, Dr. Brown has subjected himself ...