The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Case No. CIV-23-680-D
)
ELI JARJOURA, D.D.S., )
)
Defendant. )
)
ORDER
Before the Court is The United States of America’s Motion to Strike Defendant’s
Expert Witness List [Doc. No. 27]. The Court also addresses Defendant Eli Jarjoura’s
Daubert Motion to Exclude Certain Opinions of Bruce Horn [Doc. No. 33]. For the reasons
set forth below, the former motion is denied. The latter is deferred.
Background
This case arises out of a civil complaint filed by Plaintiff, the United States, alleging
Defendant Eli Jarjoura, D.D.S. (“Dr. Jarjoura”) dispensed Schedule IV controlled
substances to patients without a legitimate medical purpose and outside the course of usual
professional practice in violation of the Controlled Substances Act, 21 U.S.C §§ 829,
842(a)(1) [Doc. No. 1]. Plaintiff seeks statutory penalties.
On July 30, 2024, the Court issued an order extending pretrial deadlines [Doc. No.
13]. On November 4, 2024, Plaintiff filed its expert witness list [Doc. No. 18] in
compliance with the Court’s order.
Defendant was required to submit his final list of expert witnesses and serve any
expert reports to Plaintiff by November 18, 2024. The parties agreed privately, in writing,
to extend the deadline to November 22, 2024. Plaintiff did not, however, receive any report
from Defendant concerning Defendant’s expert at that time.1
Between November 26 and December 5, Plaintiff emailed Defendant’s counsel three
separate times and left a voice message concerning the missing report.
On December 6, 2024, Plaintiff avers that Defendant’s counsel spoke with
Plaintiff’s counsel by phone. According to Plaintiff, Defendant’s counsel alleged that
certain discovery deficiencies prevented Defendant from providing the report. In an email,
Plaintiff stated the government would seek to strike Defendant’s expert.
On December 9, 2024, Defendant’s counsel emailed Plaintiff. In that email,
Defendant stated his opposition to the instant motion and asserted that discovery
deficiencies would need to be resolved before Defendant could depose Plaintiff’s
witnesses.
Daubert and dispositive motions were due by January 3, 2025. Discovery is set to
close February 5, 2025. Defendant timely filed a Daubert motion [Doc. No. 33]. Plaintiff
filed a motion for partial summary judgment [Doc. No. 35].
Analysis
Fed. R. Civ. P. 26 provides “A party must make [ ] disclosures at the times and in
the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). Rule 37(c)(1) bars the use
1 Defendant initially listed two expert witnesses on his witness list [Doc. No. 21], but has
since agreed to withdraw Tammy L. Lambert, Pharm. D., Ph.D.
of a witness or information that was not disclosed as required by Rule 26(a), unless the
offending party can carry the burden of establishing that the failure to comply with the Rule
is either substantially justified or harmless. Kern River Gas Transmission Co. v. 6.17 Acres,
156 F. App’x 96, 101 (10th Cir. 2005); Cohlmia v. Arden Health Services, LLC, 254 F.R.D.
426, 429-430 (N.D. Okla 2008).
The determination of whether a Rule 26(a) violation is justified or harmless is
entrusted to the broad discretion of the district court. Woodworker's Supply, Inc. v.
Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). “The decision to exclude
evidence is a drastic sanction.” Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 604
(10th Cir. 1997). The following factors are relevant: (1) prejudice or surprise to the party
against whom the report is offered; (2) ability of the party to cure the prejudice; (3) extent
to which introducing such testimony would disrupt the trial; and (4) the moving party’s bad
faith or willfulness. Woodworkers Supply, Inc., 132 F.3d at 993.
In his response to the instant motion, Defendant does not justify failing to comply
with the Court’s deadline. Defendant instead argues that its prepared report was not sent to
Plaintiff because the report responds to allegations filed by the Oklahoma State Board of
Dentistry in a separate complaint [Def. Res. at 1, 5 of 9]. Defendant further argues that
Plaintiff here refused to produce the complaint in that separate case [Def. Res. at 1 of 9],
that Plaintiff failed to respond to “basic interrogatories” needed for the report [Def. Res. at
4-6 of 9], and, to cure the admitted prejudice to Plaintiff, Defendant “respectfully
request[ed] this Court [ ] extend the deadline to provide an expert witness [ ] report….”
[Def. Res. at 7 of 9].
In support of his argument, Defendant extensively cited Plaintiff’s alleged discovery
deficiencies [see Def. Res. at 2 of 9]. Defendant did not, however, attach an exhibit to his
response. Without citations to an attached record, the Court is unable to address the merit
of Defendant’s argument. Furthermore, even if discovery progressed as Defendant argues,
the Court should “not excuse non-compliance with Rule 26 by one party for the reason that
the other party may not have fully complied with discovery requests,” because a party’s
appropriate “recourse [is] a motion to compel.” Jacobson v. Deseret Book Co., 287 F.3d
936, 954 (10th Cir. 2002).
Rule 26(a)(2) requires that expert reports “contain a complete statement of all
opinions to be expressed.” Fed. R. Civ. P. 26(a)(2)(B). If, as Defendant contends, discovery
deficiencies caused Defendant’s expert to provide irrelevant information, a party is “under
a continuing duty to supplement the expert report if there are additions or changes to what
has been previously disclosed” (Jacobson, 287 F.3d at 951-52 (citing Fed. R. Civ. P.
26(a)(2)(C), 26(e)(1)))—a party should not, however, ignore deadlines altogether.
Balancing the four factors outlined in Woodworkers Supply, as well as the requested,
drastic remedy of striking an expert witness, the Court finds that extending relevant
deadlines is the more prudent course of action. Moreover, the trial date will likely already
be extended because of Plaintiff’s motion for partial summary judgment.
The United States of America’s Motion to Strike Defendant’s Expert Witness List
[Doc. No. 27] is therefore DENIED. Still, despite the denial of Plaintiff’s motion, the Court
does not take Defendant’s noncompliance with relevant deadlines lightly.?
IT IS THEREFORE ORDERED that Defendant will deliver his expert report to
Plaintiff within seven days of this order, or by January 28, 2025. Defendant is further
directed to give notice to the Court when the report is furnished to Plaintiff. Defendant Eli
Jarjoura’s Daubert Motion to Exclude Certain Opinions of Bruce Horn [Doc. No. 33] is
DEFERRED until the Court rules on the United States of America’s Motion for Partial
Summary Judgment with Brief in Support [Doc. No. 35].
IT IS SO ORDERED this 21 day of January 2025.
Md
TIMOTHY D. DeGIUSTI
Chief United States District Judge
? Failure to comply with the deadlines set forth herein may subject Defendant to appropriate
sanctions.