American Sporting Goods v. United States

                             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