MEMORANDUM & ORDER

GERALD L. RUSHFELT, Magistrate Judge.

The matter before the Court is on Plaintiff's Motion for Relief from Order Excluding Plaintiffs' Experts (ECF 113). For the reasons below, the Court denies the motion.

I. Background

On November 13, 2016, the Court entered an Amended Scheduling Order (ECF 83). Plaintiffs were to disclose her expert witnesses on or before October 25, 2016, and they did so, disclosing Dr. Paul Kurth, Erik Mitchell, M.D., and Shawn Stanley, M.D.1 as experts. On November 2, 2016, Defendants Advanced Correctional Healthcare, Inc., Heather Decker, and Gary McIntosh (collectively, "ACH") filed a Motion to Strike Expert Witnesses (ECF 89), alleging Plaintiff's expert disclosure violated Fed. R. Civ. P. 26(a)(2)(B). Plaintiffs did not respond to ACH's motion. The Court then granted without objection ACH's motion to strike, but gave Plaintiffs until January 6, 2017 to serve expert witness designations that fully complied with Rule 26. (ECF 93.) In between the Court's Order and January 6, Plaintiffs sent Defendants: (1) Dr. Mitchell's Curriculum Vitae, list of testimony, and fee schedule; and (2) Dr. Kurth's Curriculum Vitae, list of testimony, and fee schedule. (The Court was unaware of this exchange.) On January 24, 2017, ACH filed another Motion to Exclude Plaintiff's Experts (ECF 101), alleging Plaintiffs' disclosures were still in violation of Rule 26(a)(2)(B). Again, Plaintiffs did not respond to ACH's motion. The Court therefore granted ACH's motion to exclude Plaintiffs' experts, concluding that Plaintiffs chose not to designate any expert witnesses for this case. (ECF 105.) On March 6, 2016, Defendants Board of County Commissioners of Wilson County, Kansas and Pete Figgins filed a Motion for Summary Judgment (ECF 107). A week later, Plaintiffs filed the instant motion, which many Defendants2 oppose.

II. Legal Standard

"The federal rules do not recognize a motion to reconsider. A litigant seeking reconsideration must file a motion to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e), or a motion seeking relief from judgment under Fed. R. Civ. P. 60(b)."3 Under D. Kan. Rule 7.3(b), a party seeking reconsideration of a non-dispositive order must file a motion within 14 days after the order is filed, unless the Court extends the time.

Federal Rule of Civil Procedure 26(a)(2)(B) provides:

III. Discussion

Plaintiffs' motion is, essentially, a motion to reconsider the Court's February 9, 2017 Order striking Plaintiff's expert witnesses, Drs. Kurth and Mitchell. As such, it is untimely. D. Kan. Rule 7.3(b), requires that a party seeking reconsideration of a non-dispositive order must file a motion within 14 days after the order is filed. ACH's motion to strike experts is a non-dispositive motion. A timely motion for reconsideration should have been filed on or before February 23, 2017. Plaintiffs filed the instant motion eighteen days beyond that deadline, on March 13, 2017. The Court therefore denies the motion, finding it untimely under D. Kan. Rule 7.3(b).

Aside the untimeliness of the instant motion and the arguments the parties have asserted, the Court notes that Plaintiffs themselves bear responsibility for the parade of errors that has led the case to this point. Their history includes the following:

To summarize, the Court gave Plaintiffs a second chance in December, and they failed to pursue it. Despite the clear text of the Court's December 8 Order, Plaintiffs may have assumed they had complied with Rule 26(a)(2)(B) merely by bringing their previous disclosures into compliance and sending responsive information by January 6, 2017.7 But any such assumption was belied by ACH's second motion to strike, which put Plaintiffs on notice that their disclosures yet remained arguably insufficient. Moreover, ACH explicitly accounted for Plaintiffs' assumption in their motion, contending that even if Plaintiffs had satisfied the Court's December 8 Order by sending the information required by subsections (iv)-(v) to ACH, Plaintiffs' disclosures still failed to comply with subsections (i) and (ii).8 Plaintiffs' failure to respond means they did not contest ACH's argument. Given this sequence of motions and opportunities to timely respond to them, they had opportunities to show their compliance with Rule 26(a)(2)(B). They never attempted to do so until now—a month after the Court's Order and a week after the other Defendants moved for summary judgment. The Court could not assume or predict that Plaintiffs somehow had an intent contrary to their own inaction, when it thus entered its order to strike Plaintiffs' expert witnesses on February 9.

In Plaintiffs' reply to the instant motion, they essentially concede the above. They therefore plead the Court to reconsider striking their experts—a sanction that effectively and materially hampers their case. Plaintiffs instead propose the Court choose a lesser sanction. Federal Rule of Civil Procedure 37 provides:

Rule 37 "permits a district court to refuse to strike expert reports and allow expert testimony even when the expert report violates Rule 26(a) if the violation is justified or harmless."9 District courts need not "make explicit findings concerning the existence of a substantial justification or the harmlessness of a Rule 26 violation."10 But the Court should consider the following factors: "(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness."11

The Court did not apply Rule 37 when it struck Plaintiffs' experts in its Order of February 9, primarily because Plaintiffs did not respond to the motion, rendering it unopposed. While the Court believes this analysis is unnecessary due to the untimeliness of Plaintiff's motion, the Court nevertheless considers the aforementioned factors. The Court finds exclusion of Plaintiffs' experts, Drs. Kurth and Mitchell, is warranted. As to the first factor, the prejudice or surprise to Defendants depends on the way the situation is framed. If trial is the benchmark, the prejudice and surprise is minimal as no depositions have been scheduled or taken and trial is not scheduled until March 19, `. But if any resolution of the case is the benchmark, Defendants have been prejudiced. Defendants Board of Wilson County, Kansas and Pete Figgins have already filed a motion for summary judgment based, in part, on the Court's exclusion of Plaintiffs' experts. As noted, Plaintiffs did not contest the exclusion until after that motion for summary judgment had been filed. Even if that wasn't enough, the discovery deadline was set for June 1, 2017, which is fast approaching. Allowing these experts to testify would result in a cascade of changing deadlines which likely affects the trial date, even though it is set for March 19, `. The Court finds this factor weighs in Defendants' favor, especially because the motion for summary judgment was filed before Plaintiffs even moved regarding their stricken experts.

As for the second factor, Plaintiffs could cure the prejudice. But they have shown no inclination to do so. In their briefing to the instant motion, they state, ipso facto, that Dr. Mitchell's autopsy report and Dr. Kurth's letter are "a complete statement of all opinions the witness will express and the basis and reasons for them" and contain "the facts or data considered by the witness in forming them."12 Yet, in their answers to ACH's interrogatories, Plaintiffs state: "Both [witnesses] will testify as to the cause of death and the negligent acts of the defendants being the causation of her death."13 As far as the Court can tell, Dr. Mitchell's autopsy report does not state what opinions he will be offering as to the negligent acts of Defendants. Likewise, Dr. Kurth's letter says "I believe the jail officials failed Ms. Keith by not recognizing an identifiable, life threatening medical emergency and allowing her a brief ER visit."14 But Dr. Kurth provides no reasons for this opinion, and the only facts or data considered by him were Dr. Mitchell's autopsy report, which says nothing about what jail officials did or did not witness or recognize. Defendants, and the Court, could speculate as to what these experts will testify, but Rule 26(a)(2)(B)'s report requirement is designed to prevent such speculation. It allows an opposing party to prepare a relevant defense to the expert's testimony. It also facilitates the smoothness of the deposition(s), and keeps costs down. The Court finds this factor favors Defendants.

The third factor is disruption of the evidence at trial. This weighs in favor of Plaintiffs because trial is not for several months and the original discovery deadline has not yet passed.15

The fourth factor is Plaintiffs' bad faith and willfulness. The Court has already enumerated Plaintiffs' parade of errors. These errors form the basis for the Court's finding that Plaintiffs have acted in bad faith: (1) wasting Defendants' time by submitting plainly deficient disclosures, failing to respond to two motions, providing the necessary information two months later, and only moving for reconsideration after some Defendants moved for summary judgment; and (2) wasting the Court's time by causing scheduling issues and asserting an obviously untimely motion to reconsider. This factor weighs heavily in favor of Defendants. Given the other failures thus noted, the Court cannot simply ignore them or characterize them as simply harmless errors or substantially justified.16

The Court notes, however, that neither the motion nor this Order precludes Dr. Mitchell, who personally performed the autopsy, from testifying in any capacity. Rather, Dr. Mitchell is only precluded from providing expert testimony.

IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs' Motion for Relief from Order Excluding Plaintiffs' Experts (ECF 113) is denied.