*1 Before the Court are Defendant's Motion[1] and Supplemental Motion[2] to Strike Late Disclosures. For the reasons explained below, Defendant's Motions are GRANTED in part and DENIED in part.

Defendant has moved to strike (among other things) medical records and bills that Plaintiff's counsel only recently disclosed.[3] Defendant's principal argument is that approximately seven years of records and bills were improperly withheld from Plaintiff's Initial Disclosures and Plaintiff's Responses to Defendant's Interrogatories and Requests for Production.[4] For a full understanding of the issues in dispute, the Court provides a more extensive factual background than would normally be necessary.

A. Pre-Complaint Background

According to Plaintiff's Complaint, Plaintiff was injured when a vehicle driven by Brightson Hughes, a “negligent and drunk underinsured motorist,” collided with Plaintiff's vehicle.[5] The accident occurred on June 3, 2010.[6] Plaintiff did not report any injury at the scene of the accident.[7] Within approximately a month of the accident, Plaintiff saw her primary care doctor.[8] On July 9, 2010, Plaintiff gave a recorded statement to her insurance company, ANPAC (the Defendant in this case). In that statement, Plaintiff told Defendant that her primary care doctor “said everything's okay.”[9]

Plaintiff stated she began having headaches, neck pain, and lower back pain after the accident.[10] On July 1, 2010, Plaintiff began receiving chiropractic treatment at the Arkansas Center for Physical Medicine and Rehabilitation (“APMR”).[11] She visited APMR fifty-four times between July 1, 2010 and August 10, 2011.[12] Her medical bills from APMR arising from treatment during that period (including a December 2011 lien fee) totaled $7,965.45.[13] After her August 10, 2011 visit, Plaintiff did not receive treatment at APMR for over two years.[14] On September 9, 2013, Plaintiff returned to APMR and resumed treatment.[15] Between September 9, 2013 and December 16, 2013, Plaintiff visited APMR five times and incurred an additional $822 in medical bills.[16]

*2 On December 24, 2013, Plaintiff, represented by counsel, Mr. Don Chaney,[17] submitted a claim for underinsured motorist benefits to Defendant.[18] Plaintiff's counsel informed Defendant that Plaintiff had reached an agreement with Mr. Hughes to settle for his policy limit of $25,000.[19] Plaintiff's counsel requested Defendant's permission to settle with Mr. Hughes and proceed with an underinsured motorist claim.[20] As part of the December 24, 2013 claim, Plaintiff's counsel sent Defendant medical records and bills arising from her visits to APMR between July 1, 2010 and August 10, 2011.[21] The summary of medical bills stated that Plaintiff's total medical bills were $7,965.45.[22] Plaintiff's counsel did not include records and bills arising from her visits between September 9, 2013 and December 16, 2013.[23] On January 30, 2014, Defendant, acting in its capacity as the underinsured motorist auto insurance carrier, consented to Plaintiff's settlement with Mr. Hughes for the $25,000 primary policy limit.[24] Defendant also offered $5,000 to resolve Plaintiff's underinsured motorist claim.[25]

Plaintiff continued receiving treatment at APMR after her counsel submitted the underinsured motorist claim.[26] From January 27, 2014 to May 19, 2014, Plaintiff visited APMR five times and incurred an additional $598 in medical bills.[27] On July 24, 2014, Plaintiff's counsel sent a letter to Defendant rejecting Defendant's $5,000 settlement offer and demanding the policy limit of $50,000.[28] Despite asking for more compensation, and despite the fact that Plaintiff had over eight months of additional medical records and bills at that point,[29] Plaintiff's counsel stated in the July 24, 2014 letter that the demand for the policy limit was based on the medical evidence “which we previously sent to you,”[30] which presumably referred to Plaintiff's December 24, 2013 claim packet. There is no evidence that Plaintiff's counsel provided Defendant with, or even told Defendant about, any specific medical records or bills arising from treatment after August 10, 2011.

In his July 24, 2014 letter, Plaintiff's counsel also requested a “detailed written explanation for the basis” for Defendant's $5,000 offer.[31] On July 29, 2014, Defendant responded.[32] Defendant advised that the $5,000 settlement offer was “based on your client's injury, medical treatment, facts of the loss, and the information you provided our office.”[33] Defendant invited Plaintiff's counsel to call and discuss the $5,000 offer.[34] Plaintiff's counsel did not call.[35] It would be well over a year until Plaintiff's counsel followed up on Defendant's July 29, 2014 letter.

*3 On September 25, 2015, Plaintiff's counsel sent a letter renewing the policy limit demand of $50,000.[36] During the approximately fourteen-month gap in correspondence (July 29, 2014 through September 25, 2015), Plaintiff did not visit APMR or otherwise incur any medical expenses.[37] Shortly after Plaintiff's counsel sent the September 25, 2015 letter demanding the $50,000 policy limit, Plaintiff briefly resumed treatment at APMR. She visited APMR on October 1, 2015 and October 8, 2015 and incurred an additional $229 in medical expenses.[38] After the October 8, 2015 visit, Plaintiff did not receive treatment for over three years.[39]

From late 2015 to early 2017, the parties communicated several times about the claim. On July 5, 2016, Defendant requested itemized medical bills from Plaintiff's counsel.[40] Plaintiff's counsel did not send documentation of the medical expenses incurred after Plaintiff's August 10, 2011 visit to APMR. On November 11, 2016, Defendant sent Plaintiff's counsel a letter asserting that Plaintiff was adequately compensated by the $25,000 settlement with Mr. Hughes, but again offered $5,000 to settle the underinsured motorist claim.[41] Plaintiff again rejected the offer.[42]

Why, by 2016, had Plaintiff's counsel not provided Defendant with any medical records or bills arising from treatment after August 10, 2011? Maybe Plaintiff's counsel failed to obtain them. Maybe Plaintiff's counsel obtained them and failed to turn them over. Either way, that seems to be a big problem. According to a declaration from a non-lawyer staff member[43] working for Plaintiff's counsel, the Chaney Law Firm “obtained records in 2016 from APMR for dates of service from September 2013 to October 8, 2015, but our staff failed to incorporate these records within the summary of records master document.”[44] At the hearing on the pending motions to strike,[45] Plaintiff's counsel stated that his office “had received a supplement that went into 2015 but it was mishandled internally and that supplement did not get put into the summary.”[46]

On April 24, 2017, Plaintiff's counsel sent an email to Defendant's counsel stating “[m]y assistant advises that updated treatment records were provided to ANPAC ... which they apparently did not send to you.”[47] Defendant's counsel responded by saying he did “not recall seeing anything indicating continued treatment....”[48] Defendant's counsel did note that perhaps he “could have missed it” (meaning the supplemental records), but that his assistant would “let [him] know” if he had.[49] At the hearing on the pending motions, Plaintiff's counsel said he “thought [ANPAC] got it” but clarified that he was “not saying they got it” because he “can't prove that it was sent.”[50] A non-lawyer staff member working for Plaintiff's counsel stated in a declaration that “[o]n December 14, 2017, we requested updated medical records” from APMR, but she did not state whether the records were received.[51] There is nothing to indicate that, as of the end of 2017, Plaintiff's counsel had sent Defendant any medical records or bills arising from treatment after August 2011.

*4 On December 14, 2018—approximately a month and a half before filing the Complaint in this case—Plaintiff resumed treatment at APMR after a three-year hiatus. From December 14, 2018 to January 4, 2019, Plaintiff visited APMR six times and incurred an additional $1,442 in medical expenses.[52] A non-lawyer staff member working for Plaintiff's counsel says that on January 17, 2019, she “requested again updated medical records” from APMR, but then (because of illnesses and death in her family) “failed to follow up when [she] did not receive records as promptly as [she] should have.”[53]

B. Post-Complaint Background

On January 31, 2019, Plaintiff's counsel filed the Complaint in this case.[54] The Complaint made no specific mention of the treatment Plaintiff received at APMR aside from an exam performed by Dr. Steven Bennett on August 5, 2010.[55] The Complaint stated a traditional breach of contract claim.[56] It also contained a “wrongful action in performance of the policy” claim and a “bad faith” claim.[57] Among other things, the Complaint alleged that the failure of Defendant to settle Plaintiff's claim was part of “institutional business practices” to “artificially reduce claim payouts.”[58]

Between the filing of the Complaint and the submission of Plaintiff's Initial Disclosures, Plaintiff visited APMR seventeen times and incurred $2,556 in additional medical bills.[59] During that period, Plaintiff also received an MRI at 360 Imaging on July 8, 2019.[60] Plaintiff's counsel submitted Plaintiff's Initial Disclosures on August 8, 2019.[61] Federal Rule of Civil Procedure 26(a)(1) governs initial disclosures. Among other things, it requires parties to disclose “a copy—or a description by category and location—of all documents ... that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses....”[62] Parties must also disclose “a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying ... the documents or other evidentiary material ... on which each computation is based....”[63] Although Plaintiff's Initial Disclosures did reference “past and future medical bills,”[64] which might indirectly imply that the medical bills may be supplemented, Plaintiff's Initial Disclosures did not otherwise provide or reference any medical records or bills except those incurred prior to August 10, 2011.

After the Initial Disclosures were submitted, Plaintiff continued to receive treatment at APMR. Between the date of the Initial Disclosures on August 8, 2019 and Plaintiff's September 18, 2019 Responses to Defendant's Interrogatories and Requests for Production, Plaintiff visited APMR six times and incurred $1,008 in additional medical bills.[65] Plaintiff also received treatment at Mocek Spine Clinic on September 11, 2019.[66]

*5 In its first set of Interrogatories and Requests for Production, Defendant asked:

Plaintiff's Response stated as follows: “Plaintiff sees Dr. Christopher Pittman, her primary care physician, and Dr. Steven Bennet, D.C. Please see the attached medical records for the frequency, nature, and date of treatments. Dr. Pittman's records have been requested.”[68] Defendant also requested that Plaintiff produce “all medical and hospital records” that would support the allegations of each injury in the Complaint,[69] along with “copies of all documents relating to the damages and injuries allegedly sustained by Plaintiff.”[70] Plaintiff's Responses to both Requests for Production simply said “[p]lease see attached.”[71] The documents attached related only to medical records and bills arising from treatments between July 1, 2010 and August 10, 2011.[72]

Defendant deposed Plaintiff on November 20, 2019. Plaintiff's counsel did not, at any time prior to that deposition, provide any medical records or bills to Defendant incurred from treatment after August 10, 2011.[73] Nor did Plaintiff's counsel tell Defendant that there were any additional medical records or bills from APMR that Plaintiff intended to provide.[74] This is despite the fact that, apparently, Plaintiff's counsel's law firm requested supplemental records and bills from APMR in January of 2019[75] and again in the fall (August/September) of 2019.[76]

*6 The Final Scheduling Order, which was issued by the Court on July 25, 2019, set the discovery deadline as January 15, 2020.[77] On January 2, 2020, Defendant filed a motion for summary judgment on the issues of bad faith and wrongful action in the performance of the policy.[78] Defendant explained that it was not moving “for summary judgment on Plaintiff's breach of contract claim at this time as it believes that the question of the damages Plaintiff sustained is one for the jury.”[79] On January 9, 2020, Plaintiff's counsel filed a motion to extend the time to respond to the motion for summary judgment and to extend the January 15, 2020 discovery deadline set in the Final Scheduling Order.[80] The extensions motion stated that “Plaintiff needs an extension of time to file her Response [to the summary judgment motion] to obtain additional discovery from ANPAC, which is needed before Plaintiff can be prepared to file her Response.”[81] The motion made no mention of needing an extension so that Plaintiff could provide Defendant with supplemental discovery, especially not discovery unrelated to the summary judgment issues. The Court granted the extensions motion in part, extending the discovery deadline to February 14, 2020.[82]

On January 31, 2020, Plaintiff's counsel sent Defendant an email attaching “supplemented medical records and bills from APMR, Mocek Spine Clinic and Little Rock Surgery Center.”[83] The attachment contained documents detailing Plaintiff's previously-undisclosed medical treatment, bills, and records dating from September 9, 2013 to January 31, 2020.[84] So, instead of thirteen months of medical records and bills, the new disclosures meant that medical records and bills spanning over 115 months would now be at issue. The new disclosures “increas[ed] the medical bills being claimed in this case from $8,808.88 to $15,673.33,” and the medical travel expenses “from $115.00 to $213.27.”[85] They also vastly increased the number and content of medical records in the case. On February 13, 2020, Defendant filed a motion to strike these disclosures, arguing that these disclosures should have been made as part of the Initial Disclosures or the Responses to Interrogatories and Requests for Production, and that they constituted untimely supplementation.[86]

On February 14, 2020, Plaintiff's counsel sent Defendant an email[87] attaching a preliminary expert report from Elliott S. Flood[88] and an MRI report from Dr. David Harshfield dated February 7, 2020 (the MRI appears to have occurred on February 7, 2020 as well).[89] But the Final Scheduling Order had set the deadline for disclosure of expert witnesses and disclosure of their reports as November 18, 2019. And Plaintiff's counsel had never asked for and never received any extension of this deadline. On February 21, 2020, Defendant filed a supplemental motion to strike these disclosures, arguing that “the Court did not intend to extend the discovery cutoff so as to allow plaintiff to disclose additional experts not previously disclosed prior to November 18, 2019.”[90]

*7 On February 24, 2020, the Court issued a notice of hearing on the motions to strike set for March 5, 2020.[91] On the day before the hearing, Plaintiff's counsel sent an email to the Court attaching a sworn declaration by a non-lawyer staff member who works for him.[92] The Court has already referenced this declaration at several points above. In the declaration, the non-lawyer staff member took responsibility for the delayed disclosure of the medical records and bills, stating that her aunt, uncle, and grandmother died in 2019, and that “[she] was not as diligent as [she] should have been to follow up in supplementing medical records, given the outside circumstances affecting [her] life.”[93] She noted that she was out of the office a lot in October and November of 2019, due to her grandmother being diagnosed with Stage IV adenocarcinoma, the terminal illness of her aunt, and the death of her uncle by a heart attack.[94]

C. Hearing on the Motions to Strike

Several relevant pieces of information came out at the hearing. First, Defendant's counsel acknowledged that he knew well before the January 2020 disclosures that Plaintiff was continuing to receive medical treatment between 2011 and 2020.[95] Defendant proceeded as if the only medical records and bills that would be relied upon would be those from before August 2011 because he was “not going to argue with [Plaintiff's law firm] about what they give [him],” but rather he was “going to hold them to that disclosure.”[96]

Second, Plaintiff's counsel all but admitted that he did not review the medical records and bills (and summaries of the records and bills) sent as part of the Initial Disclosures.[97] Nor did he review the medical records and bills (and summaries of the records and bills) sent as part of the Responses to Defendant's Interrogatories and Requests for Production.[98] Plaintiff's counsel seems to have relied entirely on non-attorney staff to ensure the records, bills, and summaries were accurate and comprehensive.[99] Plaintiff's counsel maintained that “somewhere somebody in [his] office dropped the ball.”[100]

Third, Defendant's counsel appears to have conceded that there is a way to mitigate the prejudice to Defendant if the Court were to allow in the contested medical bills and records. The Court asked Defendant's counsel what he would need to “mitigate whatever prejudice” would arise if the late disclosures were allowed.[101] Defendant's counsel stated he would need:

Plaintiff's counsel stated that he had “no objection” to a “Rule 26 report,” that Defendant's counsel “can depose anybody he wants to,” and that he would “cooperate with deposing them.”[103]

The Eighth Circuit has held that “[t]he purpose of our modern discovery procedure is to narrow the issues, to eliminate surprise, and to achieve substantial justice.”[104] Federal Rule of Civil Procedure 26(a)(1) requires a party to “provide to the other parties ... a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims.”[105] Rule 26(a)(2) requires a party to “disclose to the other parties the identity of any witness it may use at trial to present evidence.”[106]

Additionally, Rule 26(e) requires a party who has responded to an interrogatory or request for production to supplement or correct its disclosure or response “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”[107] With regard to experts, “the party's duty to supplement extends both to information included in the [expert's] report and to information given during the expert's deposition.”[108] Supplementations “should be made at appropriate intervals during the discovery period, and with special promptness as the trial date approaches.”[109]

Rule 26(g) requires a party's attorney to sign disclosures under Rule 26(a)(1) and discovery responses.[110] By signing a disclosure or discovery response, the signing attorney “certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry,” the disclosure “is complete and correct as of the time it is made.”[111] Rule 26(g) also states:

Rule 37(c)(1) provides an enforcement mechanism for violations of the Rule 26(a) and 26(e) disclosure requirements:

“When a party fails to provide information or identify a witness in compliance with Rule 26(a) or (e),” a district court “may exclude the information or testimony as a self-executing sanction.”[114]

Though “failure to disclose in a timely manner is equivalent to failure to disclose”[115] and Rule 37(c)(1) explicitly provides for exclusion of untimely disclosures, the Eighth Circuit has cautioned that “the exclusion of evidence is a harsh penalty and should be used sparingly.”[116] A district court may use its “wide discretion” under Rule 37(c)(1) to “fashion a remedy or sanction as appropriate for the particular circumstances of the case.”[117] In “fashioning a remedy, the district court should consider, inter alia, the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony.”[118]

Defendant's first motion to strike asks the Court to sanction Plaintiff by “[s]triking the late disclosures and preclud[ing] Plaintiff from calling any witness or introducing documents” first disclosed in Plaintiff's January 31, 2020 disclosures.[119] Defendant states that, prior to the January 31, 2020 supplemental disclosures, Plaintiff's counsel had only disclosed medical records and bills arising from treatments between July 1, 2010 and August 10, 2011. Defendant notes that most of the nearly seven years of previously-undisclosed medical records and bills “existed prior to the date of [Plaintiff's] Initial Disclosures and [Plaintiff's] answers to Defendant's Interrogatories and Requests for Production of Documents.”[120] And the records that did not exist during those discovery intervals were created months before the January 31, 2020 disclosures.[121] Defendant argues that the late disclosures violate Rule 26.[122]

Defendant's second motion to strike asks the Court to strike the preliminary expert report of Elliot S. Flood and the MRI report from Dr. David Harshfield that were first disclosed on February 14, 2020.[123] Defendant argues that, since the expert disclosure deadline of November 18, 2019 was never extended, Mr. Flood's testimony and report should be excluded. Defendant also argues that Dr. Harshfield is not “a physician [that] plaintiff just happened to see” for medical treatment nearly a decade after the accident occurred.[124] At the March 5, 2020 motions hearing, Defendant argued that Dr. Harshfield's report “was done for litigation.”[125]

A. Defendant's Initial Motion to Strike Late Disclosures (Doc. 25)

*10 With regard to Defendant's first motion to strike, the Court agrees that Plaintiff violated Rule 26. Plaintiff violated Rule 26(a) because her counsel did not disclose the records and bills that existed prior to the date of Plaintiff's Initial Disclosures and prior to her answers to Defendant's Interrogatories and Requests for Production of Documents. Plaintiff also violated Rule 26(e) because her counsel did not supplement “in a timely manner” the incomplete responses in order to disclose the omitted and additional medical documents. Indeed, until January 31, 2020, Plaintiff's counsel did not even tell Defendant of the existence of the almost seven years’ worth of records and bills.

Plaintiff's counsel appears to believe that his January 31, 2020 supplemental disclosures were timely because they were within the extended discovery deadline. That argument fails for two reasons. First, a supplemental disclosure can be held untimely even if it is made before the close of discovery.[126] In the circumstances of this case, holding back all of these records and bills until after almost all discovery had been completed is not consistent with the Rule requiring timely supplementation. Second, Plaintiff's counsel knew that the January 15, 2020 discovery deadline was only extended to allow more time for a specific and limited set of depositions (mainly a few Rule 30(b)(6) depositions) and factual discovery related to those depositions.[127] It was not extended so that Plaintiff's counsel could dump almost seven more years of medical records and bills on Defendant after nearly all of the discovery and depositions had been completed in this case.

Even though the incomplete disclosures and untimely supplementation violate Rule 26, the Court must still apply the Eighth Circuit's four-factor test for determining whether the automatic exclusion provisions of Rule 37(c)(1) should apply, or if the Court should fashion a less-harsh sanction. The Court will now proceed to consider: (1) the “importance of the information,” (2) the “reason for noncompliance,” (3) the “surprise and prejudice to the opposing party,” and (4) the “extent to which allowing the information ... would disrupt the order and efficiency of the trial.”[128]

Plaintiff's medical records and bills are the most crucial evidence Plaintiff has for proving the existence of her injury and compensatory damages. In light of that fact, the Court believes that the exclusion of nearly seven years of medical records and bills would be unduly harsh.[129] The “importance of the information” weighs heavily on the Court and leads it to conclude that, on balance, the Court should use its discretion under Rule 37(c) to fashion a less severe remedy.[130]

*11 Plaintiff's counsel's explanation—that “somewhere somebody in [his] office dropped the ball”—is not a valid reason for noncompliance. The buck stops with Plaintiff's counsel; he dropped the ball. Many times. For years. He dropped the ball in the claims process, when he failed to turn over any medical records or bills arising from treatment after August 2011. He dropped the ball in 2016, when he did not ensure that the records his law firm received from APMR were included in the master summary of Plaintiff's records and bills. He dropped the ball when he failed to follow up after learning in 2017 that Defendant's claims adjuster might not have all the medical bills and records. He dropped the ball when he decided not to review the content of the Initial Disclosures or the content of the attachments to the Responses to the Interrogatories and Requests for Production—and thus failed to learn that no bills or records after August 2011 had been specifically identified or provided. He dropped the ball after those disclosures, when he failed to follow up on the necessary supplementation during the fall and winter of 2019. He dropped the ball throughout the entire litigation by not mentioning once to the other side that there would be nearly a decade of medical records and bills, not just a year and a half. It is one thing not to provide the actual records and bills themselves, but in this case Plaintiff's counsel never even mentioned his intent to disclose them prior to the January 2020 document dump.

Instead of taking responsibility for these failures, Plaintiff's counsel seemed more than happy to have his non-lawyer staff member take the blame for the late disclosures. But she is not a lawyer. Ultimately, it is Plaintiff's counsel's responsibility to delegate, supervise, and follow up on all matters in his cases. Especially because the non-lawyer staff member had lost her aunt, uncle, and grandmother in a very short period of time, and had also been out with the flu,[131] Plaintiff's counsel had a responsibility to ensure his cases were properly tended to. He did not.

Considering the central importance of the medical records and bills to Plaintiff's underinsured motorist claim and to proving the amount of compensatory damages, it is hard to fathom how this error could have persisted for so long if it truly was a good faith mistake. But the Court is not interested in playing detective. Whether the error was one of wildly poor management, substantial carelessness, intentional malfeasance, or some combination of the above, the error is still glaring and problematic.[132] Whatever the reason may be, Plaintiff's counsel's noncompliance with Rule 26 was and is inexcusable. Given the importance of the evidence at issue, as discussed above, the Court does not believe that Plaintiff should be made to suffer for her counsel's lack of diligence in pursuing her claim. The Court will fashion a remedy that places the sanction on the individual who should bear it: Plaintiff's counsel.

*12 With regard to surprise, at the hearing regarding the pending motions, Defendant's counsel stated that he had prepared a defense based on the previously-disclosed medical records and bills.[133] Defendant's counsel stated that it became a “whole different case” to defend when Plaintiff's counsel submitted nearly seven additional years of medical treatment.[134] Defendant's counsel did concede, however, that he knew Plaintiff continued to receive treatment after August 10, 2011,[135] and that Plaintiff had previously provided Defendant with authorization to obtain her medical records from her medical providers.[136] Defendant's counsel argued that he is “entitled to have them put in [his] hand the evidence [he is] going to see at trial.”[137] He also noted that in “the last case [he] tried with [Plaintiff's counsel], they did not introduce any past medical at all to the jury.”[138]

With regard to prejudice, Defendant's counsel stated that Defendant would suffer prejudice from the admission of the untimely disclosures because it becomes “a much more complex case to defend and [he] didn't prepare [a defense] that way.”[139] But, as noted above, Defendant did provide the Court with a roadmap to mitigate any prejudice if the late disclosures were allowed, and Plaintiff's counsel did not appear to have any concerns with Defendant's suggested remedial measures.

On balance, in light of Defendant's (at least passing) knowledge of Plaintiff's continued treatment, and in light of the ability of the Court to mitigate prejudice, this factor slightly supports fashioning a remedy that is less-harsh than exclusion.

Allowing the late disclosure of the medical records and bills will disrupt the order and efficiency of this proceeding. Although the treatments described in the late medical records are similar to the treatments Plaintiff received from July 2010 to August 2011, the duration and frequency of treatment makes this, as Defendant's counsel stated, a “more complex case to defend” and a case with higher stakes.[140] The Court will have to order a significant amount of additional discovery, including re-deposing witnesses, to mitigate the prejudice caused by the late disclosures. The trial date will need to be extended, and innocent third parties will have to be inconvenienced for a second time. Essentially, this case will go through a second discovery phase which would have been entirely unnecessary had Plaintiff's counsel followed the rules.[141] This factor supports exclusion.

On balance, the Court concludes that the medical records and bills should not be struck despite the untimely disclosure. The importance of the documents and the ability to mitigate prejudice outweigh the lack of satisfactory reasons for noncompliance and the serious potential for disruption.

B. Defendant's Supplemental Motion to Strike Late Disclosures (Doc. 31)

With respect to Dr. Harshfield's MRI report, the Court understands that Dr. Harshfield will not be called to testify.[142] The Court further understands that the sole question is whether the report itself should be stricken as a late submission. At this point, the Court does not address whether or not the MRI report or any opinions about that report may be introduced at trial. That is a question for another day.

*13 Defendant argues that the MRI “was done for this lawsuit” and “not done for treatment.”[143] This argument may ultimately be persuasive, but it is not particularly persuasive in terms of the motion to strike the discovery. The Court assumes for purposes of this motion that Dr. Harshfield's report is a routine medical record. Unlike the other medical records subject to the motions to strike, the MRI was done very recently and then turned over within a reasonable amount of time. The MRI was performed on February 7, 2020. The report was disclosed on February 14, 2020. That is quick enough. The Court, therefore, will not strike the report at this time. While the report will not be stricken by this Order, the Court is sympathetic to Defendant's position that Dr. Bennett's reliance on this report will turn him into an expert. The Court can and will mitigate this prejudice as discussed in Section III(C) below.

With regard to Mr. Flood's testimony, the Court agrees that the late disclosure of Mr. Flood violated the expert deadline in the Final Scheduling Order. There has been no request for an extension of that deadline and no good excuse as to why Mr. Flood was not disclosed as an expert before the deadline. The Court will thus proceed to apply the Eighth Circuit's four-factor test to determine whether Mr. Flood's testimony should be excluded, or if a lessor sanction should be applied.

Mr. Flood's testimony is intended to bolster Plaintiff's bad faith and wrongful action in the performance of the policy claims.[144] Even assuming that these claims survive summary judgment, which is by no means a forgone conclusion, Mr. Flood's expected testimony is not important enough to save it from exclusion.

“[E]xpert testimony is not necessary” where “the practical commonsense of the jury will enable them” to draw the inferences and make the determinations themselves.[145] Mr. Flood's report provides little information that would not already be obvious to anyone with “practical commonsense.” For example, the Flood report states that “[w]hen claim handlers act in good faith,” they “[m]ake every effort to avoid mistakes,” “[a]re careful not to overlook important facts about the claim,” “[k]eep accurate and complete records,” and “[n]ever provide false information, manipulate records or reports or do anything illegal.”[146]

Mr. Flood also draws some questionable conclusions that carry a danger of confusing the issues.[147] For example, the Flood report asserts that a “key factor” that “[n]o reasonable carrier in good faith could disregard” is the “ample evidence that the plaintiff firm, Chaney Law Firm, had the capacity and track record to obtain verdicts at the higher end.”[148] The fact that an insurance company does not roll over and play dead any time the Chaney Law Firm waives a demand letter in its direction is not probative of bad faith.

After a close review of the entire Flood report, the Court concludes that Mr. Flood's testimony is not important enough to save it from exclusion. If Plaintiff makes it to trial on the bad faith and wrongful action claims, she could prevail without this expert testimony, which is only marginally relevant and useful to the actual issues in this case.

The reasons offered by Plaintiff's counsel for his noncompliance with the expert deadline are unsatisfactory. At the March 5, 2020 motions hearing, when the Court asked “why either Mr. Flood was not on your initial list or ... why you didn't ask for an extension of the expert disclosure deadline,” Plaintiff's counsel responded that he “did not have the discovery” and “did not know what the facts were” prior to the February 5, 2020 depositions of ANPAC representatives.[149] This explanation does not pass muster for at least two reasons. First, the bad faith and wrongful action claims were included in the Complaint itself,[150] not added after the depositions. Plaintiff's counsel knew from the very beginning of this case that he would need to prove the bad faith and wrongful action allegations, so there was plenty of time and reason to (at least preliminarily) identify Mr. Flood as a potential expert before the deadline. Second, if Plaintiff's counsel had any concern that he did not have enough discovery to know by November 18, 2019 whether he needed an expert like Mr. Flood, Plaintiff's counsel could have asked for an extension of the expert disclosure deadline. He never did so. And if he later determined that he needed Mr. Flood's expert testimony, he could have asked to disclose Mr. Flood out of time.[151] But he never even did that.[152]

*14 Another reason for noncompliance given by Plaintiff's counsel involved a January 17, 2020 teleconference call where the Court decided a dispute between the parties regarding appropriate Rule 30(b)(6) deposition topics. Plaintiff's counsel stated that his “recollection toward the end of the [teleconference call], basically after the Court has ruled, the Court made a statement to the effect of if things are learned during this 30(b)(6) examination and you need more time, then let me know.”[153] This recollection is simply incorrect.[154] During the teleconference call, the Court made clear that it was “not inclined to extend the discovery deadline any longer,” and neither Plaintiff's counsel, Defendant's counsel, nor the Court suggested the possibility of additional expert witnesses or an extension of the expert discovery deadline.[155] The Court further emphasized that it wanted to finish discovery by the already-extended deadline, but that it would take “into account” any “extraordinary circumstances that none of us can imagine” that might warrant further extension of the discovery deadline.[156]

Ultimately, Plaintiff's counsel does not have a good explanation for why Mr. Flood was not on the initial expert list or why there was no request for an extension of the expert disclosure deadline. Plaintiff's counsel (who has been a lawyer since 1979) said, “I would say that's my fault likely due to inexperience in not handling very many of these cases.”[157] The Court credits Plaintiff's counsel for accepting responsibility for the error, but it does not justify noncompliance with the expert deadline. It also does not make much sense, given that he has been a lawyer for forty years.

The fact that the February 14, 2020 expert disclosure was made nearly three months after the November 18, 2019 expert disclosures and reports deadline constitutes surprise, and allowing Mr. Flood's testimony would be prejudicial to Defendant. For almost three months, Defendant had no documents or other information from which to prepare cross-examination or rebuttal witnesses to combat Mr. Flood's testimony. Defendant may need to retain a new expert to rebut Mr. Flood's testimony. Additionally, because of the late disclosures, Defendant could not depose other witnesses or otherwise structure discovery in a way that might counter Mr. Flood's testimony. And Defendant reasonably assumed that there would not be such an expert when it filed its summary judgment motion. The factor of surprise and prejudice to the opposing party supports the exclusion of Mr. Flood as an expert witness.

*15 As was the case with the late disclosures of the medical records and bills, allowing the expert who was untimely disclosed would seriously disrupt order and efficiency. What was said previously in analyzing this factor regarding the medical records and bills applies here also. The Court would have to order a significant amount of additional discovery, including redeposing witnesses, to mitigate the prejudice caused by the late disclosure. Defendant would also have to retain its own expert witness, necessitating yet another report and deposition. The trial will also have to be moved. This factor supports exclusion.

Based on a comprehensive review of the four factors, the Court will strike the disclosure of Mr. Flood as an expert.

C. “Remedy or Sanction as Appropriate for the Particular Circumstances of the Case”

The Court will strike Mr. Flood as an expert witness. The Court will not strike Dr. Harshfield's report. The Court will also not strike the medical records and bills disclosed on January 31, 2020. The Court will impose the following measures—most of which were requested by Defendant—to mitigate the prejudice caused by Plaintiff's violations of Rule 26(A) and Rule 26(E):

In addition to the foregoing, Plaintiff's counsel (not Plaintiff and not Ms. Schoultz) will pay the reasonable expenses, including attorney's fees, caused by the late disclosures.[158] The Court orders Defendant to provide by July 31, 2020 a supplemental brief that identifies and calculates all such reasonable expenses. At a minimum, this will include the time spent on the motion to strike briefing, the motion to strike hearing, and the supplemental brief now requested by the Court. It will also potentially include the fixed expenses and some non-fixed expenses for re-deposing potential witnesses. Essentially, the Court is looking for the delta between what would have been spent if the medical bills and records had been timely disclosed and what needs to be spent because of the lateness of the disclosures. Once Defendant files this submission, Plaintiff's counsel will have fourteen (14) days to respond. Plaintiff's counsel may use this opportunity to argue why he should not be sanctioned,[159] in addition to arguing about the propriety or calculation of any specific expenses, including attorney's fees, in Defendant's filing.

*16 Finally, as should be obvious, the Court is concerned with the way Plaintiff has been represented in this case. The Court wishes to ensure Plaintiff is knowledgeable about the status of her case. Accordingly, the Court orders Plaintiff's counsel to provide this Order to Plaintiff and subsequently file a declaration signed by Plaintiff stating that she has read the Order. This declaration must be filed within thirty (30) days of the date of this Order.

For the foregoing reasons, Defendant's Motion and Supplemental Motion to Strike Late Disclosures are GRANTED in part and DENIED in part.

IT IS SO ORDERED this 6th day of April 2020.