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This case arises out of the nuclear reactor accident that occurred at the Three-Mile Island Power Plant on March 28, 1979. This 3rd Circuit decision was rendered more than 20 years after the incident and after a complicated procedural history that included multiple filings by thousands of plaintiffs in both state and federal court. Congressional amendment of a statute finally allowed all of the cases to be consolidated in federal court. The main issue decided on appeal was the district court’s exclusion of expert testimony, based on the gatekeeping standards of Daubert, which restricted plaintiffs’ ability to show that they were exposed to radiation sufficient to cause injury.
The other issue on appeal was the award of sanctions for violations of pre-trial discovery requirements and orders. As this is an eDiscovery blog, I will be addressing the discovery and sanctions issues rather than the voluminous and complex scientific matters that arose in this nearly 200 page decision.
Timeliness had been a continuing problem in the litigation, nicely illustrated by the promulgation of nearly a dozen case management orders. To combat this problem the exceedingly lenient court ordered the drafting of a final case management order, which would not be altered absent extreme and compelling circumstances. This order indicated that plaintiffs’ expert reports were to be submitted by March 1, 1995. Despite the March 1st deadline, the plaintiffs continued to supplement and submit reports without leave of court for over a year. The District Court split the baby, and decided to admit the untimely reports that were submitted between March 1, 1995 and January 5, 1996 but not those submitted after that date. This was done because the court found that exclusion of all the untimely filed reports “would result in the effective dismissal of much of the Plaintiffs’ case” and would be, “unduly harsh” to the Trial Plaintiffs who had nothing to do with their counsel’s disregard of court orders. The plaintiffs appealed the court’s exclusion of those reports and supplements filed after January 5, 1996.
Federal Rule of Civil Procedure 37(b)(2)(B) authorizes the District Court to sanction a party’s failure to comply with a discovery order by “prohibiting that party from introducing designated matters into evidence. Although exclusion of evidence for violation of a discovery order is considered an “extreme sanction,” the trial court’s exclusion of testimony for failure of counsel to adhere to a pretrial order will only be disturbed if there is a clear abuse of discretion.
In evaluating whether a District Court properly exercised its discretion in applying the sanction of exclusion under Rule 37 the Circuit Court weighs: (1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule would disrupt the orderly and efficient trial of the case or of other cases in the court, and (4) bad faith or willfulness in failing to comply with the district court’s order.
The 3rd Circuit found that (1) Defendants would be prejudiced by the admission late reports because they would have insufficient time to prepare cross-examination; (2) Defendants are unable to cure the prejudice because the court is unwilling postpone the trial date; (3) waiver of the Rule 37 sanctions would disrupt the orderly trial of this case as well as a multitude of other cases on the court’s docket; and (4) Plaintiffs repeated violation of numerous orders of this court, failure to seek leave of court before filing untimely reports, and “covert” filing of additional reports as exhibits to a variety of unrelated motions rather than “overtly” making supplemental filings, rises to the level of bad faith.
Since discovery was open for nearly a decade the Trial Plaintiffs’ counsel could hardly complain that they did not have adequate time to provide the desired reports, nor could they claim that the exclusion of the late reports in response to their practice of continually ignoring District Court deadlines caught them by surprise. The 3rd Circuit found plaintiffs’ counsel’s failure to comply with the deadlines imposed by the District Court to be inexcusable. So inexcusable, that monetary sanctions were also issued.
Michael Tucker Jr. received his B.A. in Political Science from The College of New Jersey. He will receive his J.D. from Seton Hall University School of Law in 2011. After graduation, Michael will be clerking for a trial judge in the Superior Court of New Jersey.
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