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Giesmann v. American HomePatient, Inc.

United States District Court, E.D. Missouri, Eastern Division

June 22, 2017

RADHA GIESMANN, MD, P.C., individually and on behalf of all other similarly-situated persons, Plaintiff,
v.
AMERICAN HOMEPATIENT, INC., Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant American HomePatient, Inc.'s Motion to Strike the Declarations of Robert Biggerstaff and Radha Geismann, M.D. (ECF No. 110).[1] The motion is fully briefed and ready for disposition.

         I. Background

         Plaintiff Radha Geismann M.D., P.C. ("Dr. Geismann") filed a class action Complaint, alleging that Defendant American HomePatient, Inc. ("Defendant") violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA"), by sending unsolicited facsimile advertisements to Dr. Geismann and to members of the putative class. (Compl. ¶¶ 10-12, ECF No. 3) Geismann also brings a claim for conversion under Missouri common law. (Compl. ¶¶ 53-64) Currently pending are a Motion for Class Certification filed by Plaintiff Dr. Geismann (ECF No. 97) and a Motion to Strike the Declaration of Robert Biggerstaff ("Biggerstaff'), attached as exhibit 8 to the Memorandum in Support of Motion for Class Certification. (ECF Nos. 110, 98-9)

         Defendant contends that Biggerstaff was not disclosed in Plaintiffs expert disclosures under Rule 26(a)(2). Defendant argues that the testimony was submitted for the first time with the motion to certify the class, such that the Declaration should be stricken. In the Biggerstaff Declaration, he states that he will be able to find fax transmission logs in the SQL database linked to Defendant's RightFax Server using RightFax Server Version 10 software at some point in the future. (Biggerstaff Decl. ¶¶ 10-16, ECF No. 98-9) Defendant asserts that the Declaration should be stricken pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure because Biggerstaff was disclosed four months after the expert witness disclosure deadline had passed; the Declaration does not meet Fed.R.Civ.P. 26(a)(2)'s requirements for expert witness disclosures; and the Declaration is based on insufficient facts and data in contravention of Rule 702 of the Federal Rules of Evidence.

         In response, Plaintiff asserts that the Biggerstaff Declaration was submitted in response to Defendant's Rule 30(b)(6) witness testimony and does not provide expert testimony. Thus, Plaintiff argues that the Court should deny Defendant's Motion to Strike the Declaration of Robert Biggerstaff.

         II. Legal Standard

         Under Rule 37 of the Federal Rules of Civil Procedure:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), 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. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

Fed. R. Civ. P. 37(c)(1). "Rule 37 does not provide for mandatory sanctions, and the district court may find that a party's failure to include a witness in the initial Rule 26(a)(1) disclosures was substantially justified or harmless." Davis v. U.S. Bancorp, 383 F.3d 761, 765 (8th Cir. 2004) (citations omitted). "The offending party has the burden to demonstrate that the failure to disclose was substantially justified or harmless." Seubert v. FFE Tramp. Servs., Inc., No. 4:11CV01651 AGF, 2013 WL 827547, at *1 (E.D. Mo. Mar. 6, 2013) (citation omitted).

         Under Rule 37, a district court considers the following factors when determining whether a failure to disclose under Rule 26(a) may be deemed substantially justified or harmless: '"(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness.'" Mayhall v. Berman & Rabin, P.A., No. 4:13CV0175 AGF, 2014 WL 272348, at *1 (E.D. Mo. Jan. 24, 2014) (quoting Rodrick v. Wal-Mart Stores E., L.P.,666 F.3d 1093, 1096-97 (8th Cir. 2012) (internal citations and quotations omitted)). "When a party fails to disclose in compliance with Rule 26(a) 'the district court has wide ...


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