---
title: "Late Service of Psychology Expert Witness’ Report Might Cause Severe Prejudice"
meta:
  "og:description": "Late service of psychology expert witness' report might prolong the trial when his testimony is not critical to the case"
  "og:title": "Late Service of Psychology Expert Witness’ Report Might Cause Severe Prejudice"
  author: "Expert Witness Profiler"
  description: "Late service of psychology expert witness' report might prolong the trial when his testimony is not critical to the case"
---

# Late Service of Psychology Expert Witness’ Report Might Cause Severe Prejudice

Posted on September 23, 2024 by Expert Witness Profiler

Plaintiff, Rudolph Mills filed this action against Defendant, Steuben Foods, Inc., alleging employment discrimination based on race after numerous complaints about shocking and wildly inappropriate racial slurs used against him by supervisors and managers.

Defendants moved, pursuant to [Fed.R.Civ.P. 16(f)(1)(C)](https://www.law.cornell.edu/rules/frcp/rule_16), [26(a)(2)(A)](https://www.law.cornell.edu/rules/frcp/rule_26), (D), [37(c)(1)(C)](https://www.law.cornell.edu/rules/frcp/rule_37), for an order striking the expert report of [ Mark D. Lerner, PhD](https://expertwitnessprofiler.com/expert-witness/Mark-Lerner/1560510). Alternatively, Defendants requested the Court award Defendants’ expenses which may be incurred to counter Lerner’s opinions, including any costsDefendants incur in connection with taking Lerner’s deposition.

Plaintiff e-mailed Defendants a copy of a Confidential Psychological Report prepared by Lerner who was also expected to testify concerning Plaintiff’s alleged psychological and emotional distress Plaintiff suffered as a result of the alleged discriminatory conduct of Defendants. According to the report, Lerner examined Plaintiff on December 9, 2023 and issued the report on December 10, 2023.

Plaintiff’s opposition is based on Plaintiff’s assertion that a dispute between Plaintiff’s counsel and one of Plaintiff’s other expert which “resulted in [a] delay of production of the expert report” does not warrant striking Lerner’s report and preclusion.

## **Psychology Expert Witness**

[Mark D. Lerner, Ph.D.](https://expertwitnessprofiler.com/expert-witness/Mark-Lerner/1560510) is a clinical and forensic psychologist with over 35 years of experience helping people through challenging times. He sees individuals, couples, and families in his office in Melville, New York, and works with clients virtually online.

Moreover, as chairman and CEO of The National Center for Emotional Wellness, Inc., Lerner provides practical information, training, and support for organizations, corporations, educational institutions, healthcare providers, and emergency responders worldwide.

[Get the full story on challenges to Mark Lerner’s expert opinions and testimony with an in-depth Challenge Study.](https://app.expertwitnessprofiler.com/login?eId=1560510)

## **Discussion by the Court**

The Court held that this reason for non-compliance fails to explain why Plaintiff’s counsel failed to secure a different psychological expert, presumably Lerner, prior to the deadline for Rule 26(b)(2) expert disclosure.

To begin with, Plaintiff’s delay is not harmless as failing to strike Lerner’s report and preclude his expert testimony would necessitate granting Defendants an opportunity to secure a rebuttal expert who would need to interview Plaintiff thereby further prolonging the trial. Specifically, Lerner’s testimony would be limited to the question of Plaintiff’s damages, not Defendants’ liability, and, as such, is not critical to Plaintiff’s case. Moreover, the Defendants will be severely prejudiced by having the jury hear unrebutted expert testimony that Defendants’ racial slurs caused Plaintiff to suffer emotional distress.

Finally, the Court saw that Plaintiff also failed to establish good cause required by Rule 16(b), for excusable neglect.

Defendants also requested the Court, pursuant to Rule 37(c)(1)(A), award Defendants’ expenses in connection with taking Lerner’s deposition, or alternatively, pursuant to Rule 16(f) or Rule 37(c)(1)(A), Defendants’ expenses incurred in connection with bringing the instant motion.

The Court decided that responsibility for the late service of Lerner’s report is solely attributable to Plaintiff’s counsel’s complete disregard of the deadline for service of Plaintiff’s expert report. Therefore, such responsibility should be assigned to Plaintiff’s counsel, Seamus P. Barrett, Esq. and the Derek Smith Law Group, PLLC, and not Plaintiff, should the Court award Defendants’ attorneys fees incurred in making the instant motion pursuant to Rule 16(f)(1)(C).

## **Held**

The Court granted the Defendants’ motion to strike and preclude the report of Plaintiff’s expert Mark D. Lerner.

## **Key Takeaways:**

The party that failed to comply with its discovery obligations bears the burden of proving that its failure was both substantially justified. Plaintiff’s delay is not harmless as failing to strike Lerner’s report and preclude his expert testimony would necessitate granting Defendants an opportunity to secure a rebuttal expert who would need to interview Plaintiff thereby further prolonging the trial.

Moreover, harmlessness means an absence of prejudice. However, Defendants will be severely prejudiced by having the jury hear unrebutted expert testimony that Defendants’ racial slurs caused Plaintiff to suffer emotional distress

## **Case Details:**

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