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United States District Court for the District of Columbia Denied Plaintiffís Motion to Strike Defendantsí Expert as an Excessively Harsh Remedy
Robinson v. District of Columbia
In Robinson v. District of Columbia, the United States District Court for the District of Columbia denied a motor vehicle accident plaintiffís motion to strike municipal defendantsí accident reconstruction expertís testimony for the defendantsí failure to disclose certain bases of their expertís opinion by the Courtís deadline. Writing for the Court, Judge James E. Boasberg held that a majority of the information that defendants failed to disclose by the Courtís deadline was ultimately provided to the plaintiff prior to the expertís deposition. The defendantsí failure to provide this information by the Courtís disclosure date did not, therefore, prejudice the plaintiffís case. The Court did find, however, that the plaintiff was prejudiced by the defendantsí failure to disclose the expertís accident reconstruction models prior to deposition. The Court held that striking the expertís testimony was too harsh a penalty for the defendantsí actions, and instead permitted the plaintiff to reopen the expertís deposition to inquire further about the defendantsí accident models.
This case arose out of a motor vehicle accident involving Arnell Robinson and an unmarked District of Columbia Police Department police car on March 6, 2009. Mr. Robinson died in the collision, and his mother, Caroline Robinson (ďPlaintiffĒ), filed suit against the Metropolitan Police Department officer involved in the accident, as well as the District of Columbia (collectively, ďDefendantsĒ). Over the course of the partiesí litigation, Plaintiff and Defendants made multiple requests that deadlines for expert reports and expert discovery be extended. Ultimately, the designations for Defendantsí experts were due on June 28, 2013, and depositions of Defendantsí experts were to take place by May 1, 2014. Defendants retained Wendell Cover to evaluate and reconstruct the motor vehicle collision. Defendants provided a copy of Mr. Coverís report to Plaintiff on February 21, 2015, but failed to make Mr. Cover available for deposition by the May 1, 2014, deadline. Plaintiff filed a motion to strike Mr. Coverís report and testimony on the grounds that Defendants failed to make him available for deposition. The Court denied Plaintiffís motion, and ordered that Mr. Cover be deposed in early June 2014. Mr. Cover arrived at his deposition with photographs, diagrams, and at least two (2) models that required proprietary software to view. Shortly after the deposition, Plaintiff filed another motion to strike premised upon Defendantsí alleged failure to provide the bases and reasons for Mr. Coverís opinion. Specifically, Plaintiff argued that Defendants failed to obey disclosure requirements by not providing Mr. Coverís curriculum vitae or a list of cases in which he was involved by the June 28, 2013, court-mandated deadline, and by not providing Mr. Coverís photographs and models prior to his deposition.
The Court denied Plaintiffís motion to strike, holding that such a penalty was too draconian for Defendantsí alleged discovery failures. The Court noted that FED. R. CIV. P. 26 governed Defendantsí disclosure requirements, which included the substance of the expertís opinions and ďbasis and reasons for them.Ē Id. Federal Rule of Civil Procedure 37, in turn, permits the imposition of sanctions for failure to comply with discovery, unless the failure was ďsubstantially justified or is harmless.Ē FED. R. CIV. P. 37. The Court acknowledged that Defendants failed to provide Plaintiff with Mr. Coverís curriculum vitae by the Courtís disclosure deadline, but likewise observed that Plaintiff ultimately received Mr. Coverís curriculum vitae several weeks in advance of his June 2014 deposition. The Court held that there was no harm to Plaintiff because Plaintiff was not prejudiced by Defendantsí failure to disclose Mr. Coverís curriculum vitae by June 28, 2013 given Plaintiffís counsel received the document several weeks in advance of the deposition. Similarly, Plaintiff received Mr. Coverís list of cases several weeks prior to his deposition, and was therefore not prejudiced by Defendantsí failure to abide by the June 28, 2013 deadline. The Court did find, however, that Defendantsí failure to disclose Mr. Coverís diagrams and models prior to deposition did prejudiced Plaintiff because Plaintiffís counsel was unable to consult her experts prior to re-deposing Mr. Cover. The Court held that striking Mr. Cover as Defendantsí expert was too harsh a penalty, and found that Plaintiff could reopen Mr. Coverís deposition for two (2) additional hours regarding the accident reconstruction models.
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