Friday, May 19, 2017

Expert’s Failure to Provide Report Should be Addressed as Discovery Dispute, not Daubert Motion​

The court denied plaintiffs' motion to strike the expert disclosure of a defendant's employee because plaintiffs did not attempt to resolve the issue as a discovery matter. "While [defendant's vice President of Engineering] certainly appears to have direct and personal knowledge of some of the facts in the case, the opinions offered in his Disclosure fall in the realm of expert opinions subject to Rule 26(a)(2)(B). . . . Despite being aware of possible Rule 26 violations [3 months ago], Plaintiffs do not appear to have made any effort to obtain a written report through conference with Defendants or by bringing the matter to [the magistrate judge]. Instead, they waited nearly five weeks to file their Motion and raise these issues for the first time. Had they timely raised the issue when they learned of it at deposition -- and before the close of discovery [2 1/2 months ago] -- they might have been able to obtain an expert report and conduct additional investigation or depositions. Plaintiffs may not delay in challenging a Rule 26 violation and then seek the most extreme of sanctions in a Daubert motion filed after the proper time for challenging discovery violations has expired."

Rossi et al v. Darden et al, 1-16-cv-21199 (FLSD May 17, 2017, Order) (Altonaga, USDJ)

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