Canavati v. Costco Wholesale Corporation

Background

The court’s scheduling order set deadlines for disclosing experts and completing expert discovery. The parties obtained one short extension, but they did not ask the court for another. Instead, they treated September 6, 2019, as a later disclosure deadline. The court credited that date for purposes of this order because it found the parties had acted in good faith, although their action was improper.

Dr. James B. Reynolds did not examine Rania Canavati until September 12, and Canavati did not provide his written report to Costco until September 18. Costco moved to exclude his testimony.

Legal standard

Federal Rule of Civil Procedure 26 requires parties to disclose expert witnesses and provide a written report containing the expert’s opinions and the reasons for them at the time and in the order set by the court. Under Rule 37, a party that fails to make the required disclosure generally may not use the witness at trial unless the failure was substantially justified or harmless. The party facing exclusion bears the burden of showing substantial justification or harmlessness.

Court’s analysis

The court held that Canavati had not met that burden. She offered no adequate reason for waiting until September 18 to provide Dr. Reynolds’s report. The court noted that Dr. Reynolds examined her after the September 6 deadline and that counsel should have anticipated the time needed to retain an expert and arrange a medical examination.

The court also found the delay harmful to Costco. Dr. Reynolds opined that Canavati’s lower-back pain would persist and would more likely than not require surgery within 10 to 20 years. He also identified an injury to her right sacroiliac joint that had not previously been disclosed. The court found that Costco should not have been required to anticipate these opinions and that it had not sought its own examination or expert on possible future treatment based on the information available earlier.

The court rejected reopening discovery as a solution because doing so would significantly delay the trial and disrupt the case schedule. It found that Canavati had not shown that the late disclosure was substantially justified or harmless.

Disposition

The court GRANTED Costco’s motion to exclude the testimony of Dr. Reynolds. It cautioned both parties that they could not unilaterally change the case schedule and were expected to follow the court’s orders and deadlines.