United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER, UNITED STATES DISTRICT JUDGE
AT&T Mobility, LLC, the City of Dallas, Texas, and Alan
Jarvis move pursuant to Fed.R.Civ.P. 37(c)(1) to strike the
late designation of expert witnesses by plaintiff Thomas
Landell Davidson (“Davidson”) and to prevent
these witnesses from testifying in any hearing or at trial.
Davidson has not responded to the motion. For the reasons
that follow, the court grants the motion in part and denies
it in part.
scheduling order in this case required that the parties
designate expert witnesses and otherwise comply with Rule
26(a)(2) by October 10, 2017. On December 19, 2017, two
months after the deadline, Davidson filed his designation of
expert witnesses and designation of potential witnesses. On
January 1, 2018 Davidson filed his first amended designation
of potential witnesses. Among these three documents, Davidson
designates as experts eleven medical professionals and two
employees of the law firm that represents him. According to
the designations, these experts will testify “regarding
the medical treatment of the Plaintiff” and “the
reasonable and necessary attorneys' fees incurred by the
Plaintiff, ” respectively. P. Desig. of Expert
Witnesses 1. Davidson did not move for leave or seek to
modify the scheduling order before belatedly filing these
[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.
37(c)(1). In evaluating whether a violation of Rule
26 is substantially justified or harmless, the court examines
four factors: (1) the importance of the evidence; (2) the
prejudice to the opposing party of including the evidence;
(3) the possibility of curing such prejudice by granting a
continuance; and (4) the explanation for the party's
failure to disclose. Hoffman v. L & M Arts, 2013
WL 81578, at *1-2 (N.D. Tex. Jan. 8, 2013) (Fitzwater, J.).
“Implicit in Rule 37(c)(1) is that the burden is on the
party facing sanctions to prove harmlessness.”
Current v. Atochem N. Am., Inc., 2001 WL 36101282,
at *2 (W.D. Tex. Sept. 18, 2001); see also Companion
Prop. & Cas. Ins. Co. v. Opheim, 92 F.Supp.3d 539,
544 (N.D. Tex. 2015) (Fish, J.) (“Because [the party
facing sanctions] failed to demonstrate that its failure to
designate Bourneuf as an expert witness was either
‘substantially justified or . . . harmless, ' . . .
the court must exclude the relevant paragraphs of the
declaration from evidence.”); Red Dot Bldgs. v.
Jacobs Tech., Inc., 2012 WL 2061904, at *3 (E.D. La.
June 7, 2012) (“Exclusion of the evidence is mandatory
and automatic unless the party demonstrates substantial
justification or harmlessness.”).
maintain that they will be prejudiced by the delay required
to prepare for the late-designated expert witnesses, in
addition to the increased legal costs. Because Davidson has
not responded to the motion to strike, he has not
demonstrated that his failure to comply with Rule 26(a) was
substantially justified or harmless. Moreover, Davidson has
made no other attempt to explain his late expert
designations, either through seeking leave of court or
otherwise. The court therefore grants the motion to strike as
to all experts except the law firm witnesses who will testify
concerning attorney's fees and nontaxable expenses.
Davidson has not responded to defendants' motion, the
court declines to exclude his witnesses on attorney's
fees and related nontaxable expenses, despite the failure to
timely designate them.
This court has typically treated the designation of
attorney's fee experts differently from other experts. In
most instances, as in the present case, Rule 54(d) provides
that attorney's fees are decided by the court on motion
filed after the entry of judgment. Attorneys who represent
parties against whom such fees are sought are not surprised
by expert testimony because they can usually expect that
opposing counsel will attempt to prove his attorney's
fees and because they are themselves experts on the subject.
Because the matter is handled by motion and usually decided
on affidavits, the court can cure any prejudice that a party
may face from a tardy designation by continuing submission of
the attorney's fee issue if the party needs additional
time to obtain its own expert.
Wright v. Blythe-Nelson, 2001 WL 804529, at *6 (N.D.
Tex. July 10, 2001) (Fitzwater, J.) ...