Slip Op. 00-135
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: RICHARD W. GOLDBERG, JUDGE
AMERICAN SPORTING GOODS,
Plaintiff,
v. Court No. 95-05-00627
UNITED STATES,
Defendant.
ORDER
In this Customs classification case, plaintiff has moved in
limine to exclude the testimony of two of defendant’s experts,
Mary Carrillo and Susan Sheridan, and to compel a detailed
summary of the testimony of defendant’s third expert witness,
Marian Samarin.
On February 9, 1998, plaintiff served defendant with an
interrogatory asking defendant to identify its expert witnesses.
On April 13, 1998, defendant responded that it had not yet
identified its witnesses. Although discovery closed on June 30,
2000, defendant did not identify its expert witnesses until
September 26, 2000, in compliance with an Order by the Court
governing preparation of the Pretrial Order. On October 4, 2000,
after plaintiff’s counsel voiced objections to the surprise
witnesses, the government formally served its supplemental
response to plaintiff’s interrogatory regarding expert witnesses.
CIT Rule 26(e)(1) requires parties “seasonably to supplement
the response [to a request for discovery] with respect to any
question addressed to ... the identity of each person expected to
be called as an expert witness at trial ... .” Because the
supplemental response was delivered almost thirty-two months
after the interrogatory was served, more than three months after
discovery had already closed, and only two weeks before the start
of trial, and because there are no mitigating circumstances to
justify such a delay, defendant’s supplemental response was not
seasonable within the meaning of CIT Rule 26(e)(1).
Contrary to defendant’s contention, the Court has the
authority to impose sanctions for a violation of Rule 26(e)(1)
without first issuing a separate order.1 This authority is well
established in the federal courts. See Thibeault v. Square D
Co., 960 F.2d 239, 245 (1st Cir. 1992); Bradley v. United States,
866 F.2d 120, 124 n.6 (5th Cir. 1989). In choosing the
appropriate sanction for defendant’s violation of Rule 26(e)(1),
the Court is guided by the four-factor test stated in Outley v.
City of New York, 837 F.2d 587, 590 (2d Cir. 1988) (quoting
1
Because the Federal Rules were amended in 1993 to
explicitly allow preclusion for this type of discovery violation,
the Court consults pre-amendment caselaw.
Murphy v. Magnolia Elec. Power Ass’n, 639 F.2d 232, 235 (5th Cir.
1981)). In particular, the Court is convinced that serious
prejudice to the plaintiff would result from its lack of
opportunity to prepare to meet the testimony of these surprise
witnesses. See Thibeault, 960 F.2d at 246-47. Moreover, because
the Court has already declined to grant the full length of a
continuance the parties had previously requested in a consent
motion, it does not wish to see the defendant achieve that
continuance by means of its own lack of diligence. Accordingly,
plaintiff’s motion to exclude the testimony of Ms. Carrillo and
Ms. Sheridan is granted.
Plaintiff also moved to compel a more detailed summary of
Ms. Samarin’s testimony, but rescinded this claim at the pretrial
conference subject to the proviso that her testimony be confined
to the topics listed in Schedule G-2 of the Pretrial Order. For
this reason, plaintiff’s motion in this regard is moot, and is
denied.
Therefore, upon consideration of plaintiff’s motion in
limine to exclude testimony of defendant’s experts Ms. Carrillo
and Ms. Sheridan, and to compel a detailed summary of Ms.
Samarin’s testimony; and upon all other papers; and upon due
deliberation, it is hereby
ORDERED that defendant’s motion to preclude the testimony of Ms.
Carrillo and Ms. Sheridan at the trial of this action is GRANTED;
and it is further
ORDERED that plaintiff’s motion to compel a detailed summary
of Ms. Samarin’s testimony is DENIED.
SO ORDERED.
Judge Richard W. Goldberg
Date: October 19, 2000
New York, New York
ERRATUM
American Sporting Goods v. United States, Court No. 95-05-00627,
Slip-Op. 00-135, dated October 19, 2000
Page 4, Line 1: “...that defendant’s motion...” should be
“...that plaintiff’s motion...”
October 26, 2000