United States District Court, D. New Hampshire
TONY F. SOLTANI, ESQ.
COREY M. BELOBROW, ESQ.
LANDYA MCCAFFERTY UNITED STATES DISTRICT JUDGE
Plaintiff, Lynette Maryea, is a former inmate at the Strafford County House of Corrections. Maryea brings state and federal claims arising from injuries she sustained when another inmate assaulted her. Before the court is defendants’ motion to exclude two expert witnesses Maryea disclosed after the deadline for doing so had passed. Maryea objects.
Defendants move to exclude the opinions of two of Maryea’s experts: Dr. Mark Koris and Stephen Powers. Defendants state that both experts and their reports were not disclosed until September 17, 2015, more than three months after the deadline in the scheduling order. In response, Maryea concedes that she did not disclose either expert or provide their reports until after the deadline in the scheduling order, but she argues that her failure to do so is substantially justified and harmless.
Federal Rule of Civil Procedure 26 requires a party to “disclose to the other parties the identity of any witness it may use at trial to present [expert opinion testimony].” Fed.R.Civ.P. 26(a)(2)(A). “If a party fails to provide information or identify a witness as required by Rule 26(a) . . ., 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.” Fed.R.Civ.P. 37(c)(1).
Thus, under Rule 37, “the baseline rule is that the required sanction in the ordinary case is mandatory preclusion” of late-disclosed information. Harriman v. Hancock Cty., 627 F.3d 22, 29 (1st Cir. 2010) (alteration and quotation marks omitted). In determining whether the court should impose that sanction, the First Circuit has suggested considering several factors, including “the sanctioned party’s justification for the late disclosure; the opponent-party’s ability to overcome its adverse effects (i.e., harmlessness); the history of the litigation; the late disclosure’s impact on the district court’s docket; and the sanctioned party’s need for the precluded evidence.” Id. (citing Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 79 (1st Cir. 2009) (further citations omitted)). “[I]t is the obligation of the party facing sanctions for belated disclosure to show that its failure to comply with the Rule was either justified or harmless and therefore deserving of some lesser sanction.” Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001).
Here, none of these factors suggests that this court should eschew the “baseline rule” and impose a remedy other than precluding the challenged witnesses.
Maryea argues that her late disclosure is substantially justified because: (1) her experts rely on information from her deposition, the transcript of which was not available until after her expert disclosure deadline, and (2) both of her experts experienced medical issues, which “precluded them from working during the months leading up to and following the disclosure deadline.” Pl.’s Obj. (doc. no. 10) at ¶ 6. The court finds both of these justifications unpersuasive.
Even assuming Maryea’s deposition transcript was unavailable until after the deadline for the disclosure of experts,  the lack of access to the deposition transcript does not justify the late disclosure. Maryea does not state she was unavailable to her experts or proffer reasons why her experts could not interview her, rather than wait for her deposition transcript.
With regard to the health of her experts, Maryea offers no reason why, in light of her experts’ health issues, she did not seek to amend the discovery plan to accommodate these delays. See, e.g., Fortin v. Town of Wells, Civ. No. 09-179-P-S, 2009 WL 3327200, at *3 n.2 (D. Me. Oct. 13, 2009) (“If the party legitimately needs more time [to designate expert witnesses], a motion to amend the scheduling order must be submitted, before the deadline set by the scheduling order.”). Indeed, Maryea did not raise any issues concerning her expert disclosure until three months after the deadline, and then disclosed her experts and their undated ...