Caballero et al v. Hospital Espanol Auxilio Mutuo de Puerto Rico, Inc. et al, No. 3:2007cv01665 - Document 70 (D.P.R. 2010)
Court Description: OPINION AND ORDER denying re 63 Joint MOTION for Protective Order filed by Sindicato de Aseguradores de Impericia Medica (SIMED), Hospital Espanol Auxilio Mutuo de Puerto Rico, Inc., Fermin Hernandez-Abad Signed by Chief Mag. Judge Justo Arenas on 2/8/2010.(nydi)
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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 RITA CABALLERO, et al., 5 6 Plaintiffs 7 v. 8 HOSPITAL ESPAà OL AUXILIO MUTUO DE PUERTO RICO, INC., et al., 9 10 CIVIL 07-1665 (JA) Defendants 11 12 OPINION AND ORDER 13 14 15 16 This matter is before the court on motion for protective order filed by the defendants on October 5, 2009. (Docket No. 63.) Plaintiffs opposed to the defendants motion on October 14, 2009 and in addition requested that the 17 18 defendants expert witness testimony be excluded. (Docket No. 64.) On 19 November 10, 2009, the defendants replied. (Docket No. 67.) Having considered 20 the arguments of the parties and for the reasons set forth below, the defendants 21 motion for protective order is GRANTED and plaintiffs motion to strike is DENIED. 22 23 I. BACKGROUND 24 On June 12, 2009, the pre-trial conference was held and the scheduling 25 order was then issued. According to the scheduling order the parties had until 26 October 31, 2009, to complete all discovery. Plaintiffs expert witnesses were 27 28 scheduled to be deposed in Boston on September 3-5. Plaintiffs experts were 1 CIVIL 07-1665 (ADC) 2 2 3 also supposed to be deposed on September 12, 2009, at 9:30 a.m. On that same 4 5 day, at 2:00 p.m., Dr. Wilfredo Nieves-Colomer (expert witness for the 6 defendants) was also scheduled to be deposed. The scheduling order specified 7 that the dates of September 15, 23 and 24 were reserved to depose the hospital s 8 expert Dr. Manuel Quiles and the defendants joint economics expert Dr. Ramón 9 10 Cao. (Docket No. 57.) 11 On October 5, 2009, the defendants filed Joint Motion for Protective 12 Order . (Docket No. 63.) In their motion the defendants request that the court 13 eliminate the fees demanded by both of plaintiffs expert witnesses, Dr. Christian 14 15 Arbeláez and Dr. Richard Sullivan, for the cancellation of their depositions. The 16 depositions of plaintiffs expert witnesses were scheduled for September 4 and 5, 17 2009. 18 (Id. at 1, ¶ 1.) The defendants claim that the depositions were involuntarily cancelled due to situations that were beyond their control. (Id. at 3, 19 20 ¶ 8.) 21 On October 14, 2009, plaintiffs opposed the defendants request and moved 22 for the exclusion of their expert witness, Dr. Nieves-Colomer, for not making a 23 timely and full disclosure as required by Rule 26(a)(2) of the Federal Rules of Civil 24 Procedure. (Docket No. 64, at 1, ¶ 1.) Plaintiffs also claim that the defendants 25 26 27 28 have not allowed them to depose Dr. Nieves-Colomer. (Id. at 11, ¶ 1.) 1 CIVIL 07-1665 (ADC) 3 2 3 On November 10, 2009, the defendants replied explaining once again the 4 5 reason why the depositions of both Dr. Arbeláez and Dr. Sullivan were cancelled. 6 (Docket No. 67, at 1-3.) As to the request to exclude Dr. Nieves-Colomer as an 7 expert witness, the defendants claim they were allowed by the plaintiffs to make 8 the disclosures after December 22, 2008. (Id. at 3, ¶ 7.) The defendants state 9 10 that on January 30, 2009, Dr. Nieves-Colomer s expert report was notified to 11 plaintiffs. (Id.) As to the other disclosures that were pending, the defendants 12 claim that plaintiffs were informed that they were going to be furnished on a later 13 date. (Id.) 14 15 According to the defendants, on June 12, 2009 the disclosures that were 16 pending were personally notified to the plaintiffs. (Id.) The defendants argue that 17 even though the disclosures were not made on or before December 22, 2008, 18 they were nevertheless produced opportunely. (Id. ¶ 8.) The defendants 19 20 therefore request that plaintiffs motion be denied. (Id. at 4, ¶ 11.) II. ANALYSIS 21 22 A. Protective Orders 23 Federal Rule of Civil Procedure 26(c) confers broad discretion on the trial 24 court to decide when a protective order is appropriate and what degree of 25 26 protection is required. Baker v. Liggett Group, Inc., 132 F.R.D. 123, 125 (D. 27 Mass. 1990) (quoting Seattle Times v. Rhinehart, 467 U.S. 20, 36 (1984)). The 28 1 CIVIL 07-1665 (ADC) 4 2 3 court may issue a protective order upon motion by [a] party or any person from 4 5 whom discovery is sought . . . [accompanied by] a certification that the movant 6 has in good faith conferred or attempted to confer with other affected parties in 7 an effort to resolve the dispute without court action. Fed. R. Civ. P. 26(c). 8 Rule 26(c) also requires a showing of good cause by the movant. Pub. 9 10 Citizen v. Liggett Group, Inc., 858 F.2d 775, 779 (1st Cir. 1988); Multi-Core, Inc. 11 v. S. Water Treatment Co., 139 F.R.D. 262, 263 (D. Mass. 1991). Whether or 12 not good cause exists for the entry of such an order must depend on the facts 13 and circumstances of the particular case. Mompoint v. Lotus Dev. Corp., 110 14 15 F.R.D. 414, 418 (D. Mass. 1986). In other words, [a] finding of good cause must 16 be based on a particular factual demonstration of potential harm, not on 17 conclusory statements. Baker v. Liggett Group, Inc., 132 F.R.D. at 125 (quoting 18 Anderson v. Cryovac, Inc., 805 F.2d 1, 7 (1st Cir. 1986)). 19 20 After the movant meets these requirements, [t]he court may, for good 21 cause cause, issue an order to protect a party or person from annoyance, 22 embarrassment, oppression, or undue burden or expense . . . . Fed. R. Civ. P. 23 26(c). 24 The defendants in this case request that a protective order be entered in 25 26 order to eliminate the fees demanded by both of plaintiffs expert witnesses, 27 Dr. Arbeláez and Dr. Sullivan, for cancelling their depositions. According to the 28 1 CIVIL 07-1665 (ADC) 5 2 3 defendants the depositions, which were scheduled to be taken on September 4 4 5 and 5, 2009 at Boston, Massachusetts, had to be cancelled due to tropical storm 6 Erika. 7 depositions were cancelled plaintiffs were kept informed of the emergency every 8 (Docket No. 63, at 1, ¶ 1.) The defendants claim that before the few hours as the reports from the National Hurricane Center ( NHC ) were being 9 10 posted. (Id.) The defendants claim that during a conference call all of the parties 11 agreed that the most reasonable thing to do was to cancel the depositions and 12 reschedule them. (Id. at 2-3, ¶ 7.) 13 After the depositions were cancelled, the defendants claim that they 14 15 received an email from plaintiffs counsel on September 16, 2009, informing them 16 that Dr. Arbeláez and Dr. Sullivan were demanding $1,200 and $800, 17 respectively, for the cancellation of their depositions. (Id. at 1, ¶ 2.) 18 The defendants admit that the tropical storm eventually did not enter Puerto 19 20 Rico, weakened and was reclassified as a tropical depression. Nevertheless, the 21 defendants argue that when the decision-making took place, in order to determine 22 whether or not the depositions were going to be cancelled, the scenario was not 23 positive for Puerto Rico. (Id. at 3, ¶ 10.) The defendants contend that it was not 24 possible for them to reschedule the travel arrangements and reservations exactly 25 26 27 28 the way they originally were. (Id.) 1 CIVIL 07-1665 (ADC) 6 2 3 Plaintiffs on the other hand argue that the defendants are responsible for 4 5 canceling the depositions and are liable for the fees demanded by Dr. Arbeláez 6 and Dr. Sullivan. (Docket No. 64, at 5, ¶ 22.) Plaintiffs claim that they called the 7 defendants to inform them to try at all costs to keep the scheduled depositions, 8 and were also explained that there would be a cost associated with the 9 10 cancellation of the depositions. (Id. at 3, ¶¶ 10 & 11.) According to plaintiffs the 11 National Oceanic Atmospheric Agency Record ( NOAA ) issued a Tropical 12 Depression Erika Advisory 9" on September 3, 2009, at approximately 5:00 p.m. 13 (Id. at 4, ¶ 16.) Plaintiffs sustain that the advisory stated that the tropical storm 14 15 would only affect Puerto Rico in a very limited area on the southwest tip of the 16 island, that flight operations were not disrupted and that the Luis Muñoz-MarÃn 17 International Airport serving San Juan did not close. (Id. ¶¶ 16 & 17.) Plaintiffs 18 claim that they were given no choice but to cancel the depositions despite their 19 20 willingness to go forward with them. (Id. ¶ 18.) 21 Federal Rule of Civil Procedure 26(b)(4)(C)(i) places a financial burden of 22 deposing a testifying expert on the party that conducts the deposition. Fed. R. 23 Civ. P. 26(b)(4)(C)(i). Additionally, courts have generally found that the party 24 taking the deposition is required by Rule 26(b)(4)(C)(i) to pay for preparation 25 26 time. 27 Fleming v. United States, 205 F.R.D. 188, 190 (W.D. Va. 2000); Collins v. Vill. of 28 Lent v. Fashion Mall Partners, 223 F.R.D. 317, 318 (S.D.N.Y. 2004); 1 CIVIL 07-1665 (ADC) 7 2 3 Woodridge, 197 F.R.D. 354, 307 (N.D. Ill. 1999); Emmeneger v. Bull Moose Tube 4 5 Co., 33 F. Supp. 2d 1127, 1136 (E.D. Mo. 1998). However, [t]he provisions 6 about payment in Rule 26(b)(4)(C) are subject to the condition unless manifest 7 injustice would result. Thus the court can decline to require payment in some 8 deserving cases. 8A The Late Charles Alan Wright, Arthur R. Miller & Richard L. 9 10 Marcus, Federal Practice and Procedure Civ. § 2034. 11 [T]he manifest injustice exception is a stringent standard. Harris v. San 12 José Mercury News, Inc., 235 F.R.D. 471, 473 (N.D. Cal. 2006) (citing Reed v. 13 Binder, 165 F.R.D. 424, 427 (D.N.J. 1996) (quoting Gorlikowski v. Tolbert, 52 14 15 F.3d 1439, 1444 (7th Cir. 1995)). To apply the exception, the court must find 16 . . . that requiring [the defendants] to pay a deposition fee . . . would create 17 an undue hardship. Harris v. San José Mercury News, Inc., 235 F.R.D. at 473 18 (quoting Edin v. The Paul Revere Life Ins. Co., 188 F.R.D. 543, 547 (D. Ariz. 19 20 1999)). In making the determination of undue hardship, the court must weigh 21 the possible hardships imposed on the respective parties . .. [and] balance the 22 need for doing justice on the merits between the parties . . . against the need for 23 maintaining orderly and efficient procedural arrangements. Harris v. San José 24 Mercury News, Inc., 235 F.R.D. 471, 473 (quoting Reed v. Binder, 165 F.R.D. at 25 26 27 28 427-28) (quoting Gorlikowski v. Tolbert, 52 F.3d at 1444). 1 CIVIL 07-1665 (ADC) 8 2 3 The court finds that plaintiffs request that the defendants pay the fees 4 5 demanded by Dr. Arbeláez and Dr. Sullivan is unwarranted. The fees demanded 6 by the plaintiffs expert witnesses for canceling the depositions cannot be 7 considered as preparation costs. Therefore, the defendants cannot be ordered to 8 pay the fees requested. Furthermore, another reason why the defendants are not 9 10 responsible for paying the fees requested by plaintiffs expert witnesses is that 11 they have shown good cause as to why the depositions were canceled. As the 12 defendants pointed out, the depositions were canceled due to the imminence of 13 a tropical storm. It is clear that in light of the circumstances the defendants 14 15 decision to cancel the depositions was not arbitrary but rather logical and 16 reasonable. Although plaintiffs believe that the defendants proffered reason does 17 not justify canceling the depositions the court finds that it is. 18 As the defendants have explained, the tropical storm was going to affect 19 20 Puerto Rico on September 3 and 4, 2009. Both of defendants counsel had their 21 flights scheduled for September 3, 2009. On September 2, 2009, counsel for the 22 defendants decided to cancel the depositions because according to a bulletin from 23 the NHC the tropical storm, although weakened, still sustained winds of 40 mph 24 and was projected to remain over or near the island causing significant rain and 25 26 27 28 floods. As a direct consequence of cancelling the depositions, counsel for the 1 CIVIL 07-1665 (ADC) 9 2 3 defendants had to absorb the costs of suspending all of their travel arrangements 4 5 (flight, hotel, etc.). 6 B. Failure to Make Disclosures 7 Rule 26(a)(2) of the Federal Rules of Civil Procedure requires parties to 8 disclose the identity of their expert witnesses as well as their experts' reports in 9 10 accordance with scheduling orders issued by the trial court. Morel v. Daimler- 11 Chrysler Corp., 259 F.R.D. 17, 19-20 (D.P.R. 2009) (citing Fed. R. Civ. P. 12 26(a)(2)); see Laplace-Bayard v. Batlle, 295 F.3d 157, 161-62 (1st Cir. 2002). 13 An expert's complete report is due at a specific time during the discovery period 14 15 in order to allow opposing counsel to depose the expert, if desired, and to allow 16 the opposing party's expert witness time to respond to the opinions expressed in 17 the report, also within the discovery period, so that the plaintiff's counsel will also 18 have an opportunity to explore those opinions before the end of discovery and the 19 20 deadline for the filing of dispositive motions. Griffith v. E. Me. Med. Ctr., 599 F. 21 Supp. 2d 59, 63-64 (D. Me. 2009); see Thibeault v. Square D Co., 960 F.2d 239, 22 244 (1st Cir. 1992). An expert can always supplement his or her opinions after 23 submitting a report, should the need arise. What the expert cannot do is dictate 24 the timing and progress of the case; that is a matter solely within the court's 25 26 27 28 control. Griffith v. E. Me. Med. Ctr., 599 F. Supp. 2d at 64. 1 CIVIL 07-1665 (ADC) 10 2 3 When the automatic discovery provisions of Rule 26(a) and 26(e) are 4 5 violated . . . subsection (c) of Rule 37 comes into play. Ortiz-López v. Sociedad 6 Española de Auxilio Mutuo y Beneficiencia de P.R., 248 F.3d 29, 33 (1st Cir. 2001) 7 (citing Fed. R. Civ. P. 37(c)). Subsection (c) of Rule 37 provides, in relevant part, 8 that if a party that without substantial justification fails to disclose information 9 10 required by Rule 26(a) or 26(e)(1) [, that party] shall not, unless such failure is 11 harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion 12 any witness or information not so disclosed. Ortiz-López v. Sociedad Española 13 de Auxilio Mutuo y Beneficiencia, 248 F.3d at 33 (citing Fed. R. Civ. P. 37(c)(1)). 14 15 Thus, Rule 37(c)(1) clearly contemplates stricter adherence to discovery 16 requirements, and harsher sanctions for breaches of this rule, and the required 17 sanction in the ordinary case is mandatory preclusion. Griffith v. E. Me. Med. 18 Ctr., 599 F. Supp. 2d at 64 (quoting Lohnes v. Level 3 Commc ns, Inc., 272 F.3d 19 20 49, 60 (1st Cir. 2001)). 21 [T]he burden of proving substantial justification or harmlessness for an 22 untimely disclosure falls on the offending party. Alves v. Mazda Motor of Am., 23 Inc., 448 F. Supp. 2d 285, 293 (D. Mass. 2006) (citing Saudi v. Valmet-Appleton, 24 Inc., 219 F.R.D. 128, 132 (E.D. Wis. 2003) ( The party to be sanctioned must 25 26 show that its violation of Rule 26(a) was either substantially justified or 27 harmless. ). 28 Besides being able to preclude as evidence any witness or 1 CIVIL 07-1665 (ADC) 11 2 3 information not so disclosed, the court may impose other appropriate sanctions 4 5 . . . [which] may include any of the actions authorized under subparagraphs (A), 6 (B), and (C) of subdivision (b)(2) of this Rule. Ortiz-López v. Sociedad Española 7 de Auxilio Mutuo y Beneficiencia de P.R., 248 F.3d at 34 (quoting Fed. R. Civ. P. 8 37(c)). The objective of Rule 26(a) is to promote full disclosure of the facts and 9 10 prevent trial by ambush, because opposing counsel cannot adequately cross- 11 examine without advance preparation. Morel v. Daimler-Chrysler Corp., 259 12 F.R.D. at 20 (citing Macaulay v. Anas, 321 F.3d 45, 50, 52 (1st Cir. 2003)). 13 The expert disclosure requirements are not merely aspirational, and courts 14 15 must deal decisively with a party's failure to adhere to them. Griffith v. E. Me. 16 Med. Ctr., 599 F. Supp. 2d at 64 (quoting Lohnes v. Level 3 Commc'ns, Inc., 272 17 F.3d at 60). Therefore, [f]ormal disclosure of experts is not pointless. Vigilant 18 Ins. v. E. Greenwich Oil Co., 234 F.R.D. 20, 24 (D.R.I. 2006) (quoting Musser v. 19 20 Gentiva Health Servs., 356 F.3d 751, 757 (7th Cir. 2004)). The purpose of the 21 expert disclosure rules is to facilitate a fair contest with the basic issues and 22 facts disclosed to the fullest practical extent. Poulis-Minott v. Smith, 388 F.3d 23 354, 358 (1st Cir. 2004) (quoting Lohnes v. Level 3 Commc ns, Inc., 272 F.3d at 24 60 (quoting Thibeault v. Square D Co., 960 F.2d at 244). [P]reclusion of expert 25 26 27 28 testimony is a grave step, not to be undertaken lightly[.] Primus v. United 1 CIVIL 07-1665 (ADC) 12 2 3 States, 389 F.3d 231, 235 (1st Cir. 2004) (quoting Thibeault v. Square D Co., 960 4 5 F.2d at 247). 6 Rules 26(a) and 37(c)(1) seek to prevent the unfair tactical advantage that 7 can be gained by failing to unveil an expert in a timely fashion, and thereby 8 potentially deprive a plaintiff of the opportunity to depose the proposed expert, 9 10 challenge his credentials, solicit expert opinions of his own, or conduct expert- 11 related discovery. Poulis-Minott v. Smith, 388 F.3d at 358 (quoting Lohnes v. 12 Level 3 Commc ns, Inc., 272 F.3d at 60). However, Rule 37(c)(1) allows the 13 court to admit belatedly proffered expert evidence if the proponent's failure to 14 15 reveal it was either substantially justified or harmless. Id. In deciding whether 16 to exclude expert testimony under Rule 37(c)(1), the court considers the history 17 of the litigation, the party's need for the expert testimony, the party's justification 18 for late disclosure, and any prejudice to the opposing party caused by the late 19 20 disclosure. Santiago-DÃaz v. Lab. ClÃnico y de Referencia del Este & Sara López, 21 M.D., 456 F.3d 272, 276-77 (1st Cir. 2006) (quoting Macaulay v. Anas, 321 F.3d 22 at 51). 23 24 Plaintiffs in this case have requested that the testimony and report of the defendants expert witness, Dr. Nieves-Colomer, be excluded from trial for failing 25 26 to comply with the order entered by this court on October 14, 2008, which 27 required the parties to make all expert disclosures by December 22, 2008. 28 1 CIVIL 07-1665 (ADC) 13 2 3 (Docket No. 64, at 8-9, ¶ 37.) Plaintiffs believe that the defendants untimely 4 5 disclosures regarding their expert witness is neither justified nor harmless. (Id.) 6 According to plaintiffs on December 22, 2008, they received an email from the 7 defendants requesting a brief extension of time until January, 15, 2009, to make 8 their disclosures. (Id. at 6, ¶ 26.) Plaintiffs state that even though they gave in 9 10 11 12 13 to the defendants request the disclosures were not made as agreed. (Id. at 6, ¶ 28.) The disclosures, plaintiffs state, were made on January 30, 2009. (Id.) However, plaintiffs claim that the disclosures made by the defendants were 14 15 incomplete since they only consisted of a report by Dr. Nieves-Colomer. (Id.) 16 Plaintiffs also claim that no extension of time was requested by the defendants, 17 nor did they offer any excuse justifying the additional delay. (Id.) Plaintiffs claim 18 that the disclosures made by the defendants regarding Dr. Nieves-Colomer did not 19 20 contain a curriculum vitae, the list of cases in which he has testified nor a 21 schedule of fees. (Id. at 6-7, ¶ 29.) Plaintiffs claim that it was not until June 12, 22 2009, that the defendants finally provided them with both the curriculum vitae 23 and the case list. (Id.) However, according to the plaintiffs the list furnished by 24 the defendants failed to comply with Rule 26. (Id.) 25 26 Plaintiffs list in detail the deficiencies in the disclosures made by the 27 defendants. According to plaintiffs the disclosures made by the defendants failed 28 1 CIVIL 07-1665 (ADC) 14 2 3 to provide the following information: (1) the identity of the lawyers involved in 4 5 the cases in which Dr. Nieves-Colomer has testified; (2) a statement of the 6 compensation to be paid to Dr. Nieves-Colomer; (3) conclusions regarding the 7 topics which Dr. Nieves-Colomer is expected to testify; (4) the basis and reasons 8 for Dr. Nieves-Colomer conclusions; (5) the data and/or information that was 9 10 considered by Dr. Nieves-Colomer in forming his conclusions; (6) exhibits that 11 could be used to summarize or support Dr. Nieves-Colomer s testimony. (Id. at 12 9-10.) 13 Plaintiffs also claim that to this date the defendants have not allowed them 14 15 to depose Dr. Nieves-Colomer. According to plaintiffs they were not able to 16 depose Dr. Nieves-Colomer as scheduled because he had experienced a bout of 17 kidney stones exacerbation. (Id. at 7, ¶ 32.) Plaintiffs were only able to depose 18 Dr. Pedro RodrÃguez-BenÃtez on September 12, 2009, as well as Dr. Manuel A. 19 20 Quiles-Lugo on September 15, 2009. (Id. at 7, ¶¶ 30 & 33.) Plaintiffs claim that 21 on September 16, 2009, their attorney suggested to the defendants that he could 22 stay in Puerto Rico until September 18, 2009, to depose Dr. Nieves. (Id. at 7-8, 23 ¶ 34.) However, plaintiffs state that on September 17, 2009, counsel for the 24 defendants informed them that Dr. Nieves-Colomer could not be deposed because 25 26 27 28 he was still under medication. (Id. at 8, ¶ 35.) Plaintiffs claim that to this date 1 CIVIL 07-1665 (ADC) 15 2 3 they have not received any proposals from the defendants to depose Dr. Nieves4 5 Colomer in Puerto Rico. (Id. at 8, ¶ 36.) 6 The defendants admit that they requested a brief extension of time from the 7 plaintiffs in order to make the disclosures regarding Dr. Nieves-Colomer. (Docket 8 No. 67, at 3, ¶ 7.) The defendants also admit that the expert report was notified 9 10 to plaintiffs on January 30, 2009. (Id.) The defendants however claim that on 11 that same date plaintiffs were informed that Dr. Nieves-Colomer s qualifications, 12 list of cases and fees were going to be furnished on a later date. (Id.) The 13 defendants also do not deny that the pending disclosures were made on June 12, 14 15 2009. (Id.) Despite of this the defendants contend that even though the 16 disclosures were made in a later date plaintiffs cannot allege that it has caused 17 them an undue prejudice because they were produced opportunely, considering 18 that the deposition was scheduled for September, 2009. (Id. at 3, ¶ 8.) The 19 20 defendants further argue that during the status conference that was held on June 21 12, 2009, plaintiffs made no objections regarding this matter. 22 defendants also contend that it is not correct that they have failed to allow the 23 plaintiffs to depose Dr. Nieves-Colomer. (Id. ¶ 9.) According to the defendants 24 (Id.) The on the day that Dr. Nieves-Colomer was supposed to be deposed he suffered from 25 26 27 28 a medical condition that persisted for more than a week. (Id. at 3-4, ¶ 9.) The 1 CIVIL 07-1665 (ADC) 16 2 3 defendants claim that Dr. Nieves-Colomer s deposition could have been 4 5 rescheduled for the days that plaintiffs attorney was staying in Puerto Rico. (Id.) 6 The defendants have failed to comply with a basic discovery rule even 7 though plaintiffs gave them additional time to make the disclosures regarding 8 Dr. Nieves-Colomer. The defendants were supposed to make their disclosures on 9 10 or before December 22, 2008, as ordered by this court. Nevertheless, plaintiffs 11 gave the defendants until January 15, 2009, to make the disclosures but they 12 failed to do so. It was not until January 30, 2009, that the defendants without 13 any justification for their additional delay disclosed Dr. Nieves-Colomer s expert 14 15 report. The disclosures that were pending were made five months later on June 16 12, 2009. The defendants surprisingly do not even offer a hint of justification for 17 doing so. 18 Although the defendants might have informed plaintiffs that the disclosures that were pending were going to be made on a later date, it does not 19 20 mean that they were implicitly authorized to do so. 21 Notwithstanding the defendants unexcused reasons for not complying with 22 the Rule 26, the court finds that the exclusion of Dr. Nieves-Colomer s testimony 23 is not an appropriate sanction. Even though the defendants actions might be 24 unjustified they are nevertheless harmless. The plaintiffs will not be materially 25 26 prejudiced since no trial date has been set. To the court s understanding besides 27 the deposition of Dr. Nieves-Colomer, the depositions of Dr. Arbeláez and 28 1 CIVIL 07-1665 (ADC) 17 2 3 Dr. Sullivan also remain to be taken. Furthermore, the defendants indicate that 4 5 they have not been able to produce Dr. Cao s report due to plaintiffs failure to 6 produce information regarding Mr. Miranda s pension plans and annuities. This 7 information the defendants believe is vital since according to them it was used by 8 plaintiffs economic expert for the preparation of his report. 9 10 The defendants understand that this information needs to become available 11 to their expert so that he can take it into account before rendering a report. 12 Therefore, the defendants still can 13 provide the required disclosures without causing any undue delay. Plaintiffs request that the testimony of the defendants 14 15 16 17 18 expert witness be excluded is denied. III. CONCLUSION In view of the above, the defendants motion for protective order is GRANTED. The plaintiffs request to exclude the testimony and report of the 19 20 21 22 23 24 25 26 27 28 defendants expert witness is DENIED. At San Juan, Puerto Rico, this 8th day of February, 2010. S/ JUSTO ARENAS Chief United States Magistrate Judge
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