Unreported / Non-Citable
Background
In an October 28, 2026 order in the U.S. District Court for the Northern District of California, San Jose Division, Magistrate Judge Virginia K. DeMarchi ruled on plaintiffs' motion in Case No. 5:24-cv-09504-VKD. Jonathan and Alyssa Mikkelson and their minor children allege personal injuries from toxic mold contamination and substandard living conditions at The Parks at Monterey, privatized housing on the former Fort Ord installation. Their operative fourth amended complaint asserts twelve claims, including negligence, fraud, breach of contract, habitability violations, nuisance, wrongful eviction, emotional distress, and unfair competition. The remaining defendants are Michaels Management Services LLC, Monterey Bay Military Housing LLC, and The Michaels Organization, LLC.
The court's March 2026 revised schedule required opening Rule 26(a)(2) expert disclosures by August 4, 2026. Plaintiffs' counsel missed that deadline after twice calendaring the expert-discovery cutoff as the disclosure deadline, despite defense correspondence warning of the error, and then took no action for more than a month. On September 11, 2026, defendants moved for summary judgment on all claims, arguing plaintiffs could not prove causation without experts; that motion is fully briefed for a November 17, 2026 hearing. On September 18, 2026, plaintiffs sought leave to serve belated disclosures for two retained experts, mycologist Richard C. Summerbell, Ph.D., and physician James G. Dahlgren, M.D., and to modify the schedule.
The Court’s Holding
Applying Rule 37(c)(1) and the Ninth Circuit's Lanard Toys factors, the court held that plaintiffs' failure to timely disclose their experts was not substantially justified, describing counsel's conduct as unexplained neglect and utter disregard of Rule 26 and the scheduling order. The court nevertheless found the failure harmless. Defendants had not served their own required expert reports, had disclosed only identities, curricula vitae, and broad generic descriptions of anticipated testimony, and identified no tactical benefit to plaintiffs. The court also rejected claimed prejudice from the summary judgment motion because defendants acknowledged at oral argument that filing it was a strategic decision. Because plaintiffs carried their burden to show harmlessness, the court granted leave to serve the belated expert disclosures.
On the scheduling motion, the court noted that Rule 16(b)(4)'s good-cause standard focuses on diligence and that neither side had been diligent, yet it granted the requested modification. Plaintiffs had served the Summerbell and Dahlgren reports by October 20, 2026, and defendants had served or arranged service of their own reports. The court extended the Daubert hearing deadline to January 26, 2027, required any Daubert motions by December 22, 2026, and ordered a joint report by October 30, 2026 on rebuttal disclosures and further ADR. It denied plaintiffs' request to supplement their summary judgment opposition, did not extend the dispositive-motion hearing deadline, and deferred any decision on rescheduling the pretrial conference and trial until after any Daubert motions.
Key Takeaways
- Rule 37(c)(1) exclusion of late expert testimony is not automatic: even where a failure is not substantially justified, the proponent can avoid exclusion by proving the failure harmless under the Lanard Toys factors.
- Defendants' own incomplete expert disclosures, their inability to identify surprise or tactical advantage, and their strategic choice to file summary judgment supported the harmlessness finding.
- The order granted case-management relief only; it did not resolve the merits of the twelve claims or defendants' fully briefed summary judgment motion, and it denied supplementation of the summary judgment opposition.
- The court paired relief with firm deadlines—Daubert motions by December 22, 2026, a January 26, 2027 Daubert hearing deadline, and an October 30, 2026 joint report—while warning that trial dates may still need rescheduling.
Why It Matters
The order illustrates the two-step Rule 37(c)(1) inquiry: a disclosure failure may be unjustified yet still harmless, and the party facing exclusion bears the burden of proving harmlessness. It shows how both sides' disclosure practices, the absence of demonstrated tactical advantage, and an already extended discovery period can support a case-management remedy without excusing counsel's neglect.
Practically, the ruling keeps plaintiffs' causation experts available while leaving summary judgment pending, and it imposes a structured path for rebuttal reports, expert discovery, Daubert challenges, and possible further ADR before the court decides whether trial dates must move.