MAYBE SANCTIONS LATER.
In the case of Quillen v. Allstate Insurance Co., No. 1:14cv15, 2015 WL 5474675 (W.D.N.C. September 17, 2015), a U.S. Magistrate Judge laid out some simple steps to require the opposing party to disclose its expert's report.
In Quillen, the plaintiffs timely disclosed their expert but not their expert's report. The defendant filed a motion for sanctions to strike the plaintiffs' amended complaint with prejudice, or alternatively to exclude the expert in question from testifying at trial.
The Magistrate Judge declined the invitation to sanction by dismissal with prejudice of the plaintiffs' amended complaint. He laid out the reasons.
First, the defendant effectively deprived the Court of the opportunity to impose a lesser sanction because the defendant which complained about the undisclosed expert report had not filed a motion to compel production of the report as a first step.
Second, before imposing sanctions, a Court should warn the offending parties in advance of the consequences of their failure to comply with the Pretrial Order before the sanction of dismissal with prejudice should be imposed. This warning was required in the eyes of the Court by letting the offending parties know that their noncompliance amounted to bad faith. Here, there was no such prior warning by the Court. But there was now.
The Magistrate Judge also imposed a prior warning requirement in this particular case on "the lesser sanction of excluding" the expert's testimony.
The Court denied the defendant's now-obviously-premature motion for sanctions but required the plaintiffs to produce a compliant expert report within two weeks from the date of decision. In this order, the plaintiffs received all the warning they could reasonably expect of the consequences of a future failure to comply.
Please Read The Disclaimer. ©2015 by Dennis J. Wall, author of Litigation and Prevention of Insurer Bad Faith (3d ed. Thomson Reuters West in 2 Volumes, with 2015 Supplements). All rights reserved.
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