Introduction

In a nonprecedential disposition issued on September 29, 2025, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment against a civil detainee challenging a pornography restriction at Illinois’s Rushville Treatment and Detention Facility. The core appellate issue was procedural: whether detention officials could rely on an expert report disclosed by previously dismissed co‑defendants when the remaining defendants themselves had not disclosed the expert under Federal Rule of Civil Procedure 26(a)(2).

The panel (Judges Scudder, St. Eve, and Maldonado) held that, even assuming a Rule 26 violation, any error was harmless under Rule 37(c)(1) because the plaintiff had adequate notice of the expert and a meaningful opportunity to respond before the district court relied on the report to grant summary judgment. The court declined to decide whether Rule 26 was technically violated by the remaining defendants’ failure to list the expert as their own witness after the co‑defendants were dismissed.

The underlying constitutional claim—brought under 42 U.S.C. § 1983—contested Rushville’s policy banning possession of legal pornography by residents adjudicated “sexually violent persons” (SVPs) under Illinois law. Although the district court initially denied summary judgment for lack of evidentiary support, it ultimately ruled for the detention officials upon consideration of the expert report of Dr. Drew A. Kingston, Ph.D., concluding that the restriction was reasonably related to legitimate governmental interests in security and rehabilitation.

Summary of the Opinion

• Procedural posture: The district court granted summary judgment to detention officials, relying on an expert report (the “Kingston Report”) that had been disclosed timely by co‑defendant clinical directors before they were dismissed from the case. Plaintiff appealed, arguing the report should have been excluded because the remaining defendants did not make their own Rule 26 disclosure of Dr. Kingston.
• Holding: The Seventh Circuit affirmed. Without deciding whether a Rule 26(a)(2) violation occurred, the court held any failure to disclose was harmless under Rule 37(c)(1). The plaintiff had notice of the expert disclosure in 2021, received the report again in February 2024, and was afforded an opportunity to respond before summary judgment issued.
• Reasoning: The court applied harmlessness factors—prejudice or surprise, ability to cure, disruption, and bad faith—and found no reversible error. The plaintiff neither attacked the substance of the report nor sought more time to obtain a counter‑expert despite having done so successfully in the past. The district court’s process cured any potential prejudice.
• Nonprecedential nature: The disposition is designated “NONPRECEDENTIAL” and may be cited under Fed. R. App. P. 32.1, but it does not establish binding circuit precedent.

Case Background

Plaintiff‑appellant Devin M. Kugler is civilly committed at Rushville as a “sexually violent person” under Illinois’s Sexually Violent Persons Commitment Act (725 ILCS 207/5(f)). In 2019, Rushville officials prohibited him from possessing pornography. Kugler sued three detention officials and two clinical directors, seeking injunctive and declaratory relief on First Amendment grounds.

The defendants were represented by separate counsel. The clinical directors timely complied with expert disclosure deadlines in March 2021, listing Dr. Kingston and his expert report. Kugler then voluntarily dismissed the clinical directors two months later and continued against only the detention officials, who made no expert disclosures of their own.

The district court initially denied the detention officials’ summary judgment motions in 2021 and 2022 because they had not adduced evidence providing “research‑based underpinnings” for Rushville’s pornography policy, as required by Seventh Circuit precedent in SVP cases. In 2024, the detention officials sought dismissal as moot based on a change in policy, attaching Dr. Kingston’s report. The district court rejected mootness but indicated the report could support summary judgment, allowed Kugler to respond, and ultimately entered judgment for the officials.

After judgment, Kugler moved for relief alleging falsified disclosure documents. The defendants submitted an affidavit from the Illinois Attorney General’s Office confirming authenticity and timely service of the 2021 disclosure. The district court deemed Kugler’s accusations “near‑frivolous” and denied relief; Kugler did not amend his notice of appeal to encompass that post‑judgment order.

Analysis

A. Precedents and Authorities Cited

• Fed. R. Civ. P. 26(a)(2)(A) and 37(c)(1): Rule 26 requires a party to disclose the identity of any expert witness it may use at trial. Rule 37(c)(1) provides the default remedy—exclusion—if a party fails to disclose, “unless the failure was substantially justified or is harmless.”
• Advisory Committee Note (1993) to Rule 37(c)(1): Identifies as “harmless” situations including “the failure to list as a trial witness a person so listed by another party.” The panel invoked this note to frame harmlessness in the context of cross‑party expert use.
• David v. Caterpillar, Inc., 324 F.3d 851 (7th Cir. 2003) and Uncommon, LLC v. Spigen, Inc., 926 F.3d 409 (7th Cir. 2019): These decisions supply the governing factors for assessing harmlessness—prejudice or surprise to the opponent, the ability to cure, the likelihood of disruption, and bad faith. Uncommon also emphasizes that Rule 37 does not protect gamesmanship: a party cannot lay in wait on a perceived error and then claim incurable harm when the court provides a remedy.
• S.E.C. v. Koenig, 557 F.3d 736 (7th Cir. 2009): Held that where the defendant disclosed an expert’s identity, the SEC could use the expert’s deposition at trial despite not listing the expert in its own disclosures. The panel distinguished Koenig because there the disclosing party remained in the case; this appeal involved reliance on a disclosure made by co‑defendants who had been dismissed. The court expressly did not decide whether that distinction creates a Rule 26 violation; it resolved the case on harmlessness grounds.
• Brown v. Phillips, 801 F.3d 849 (7th Cir. 2015) and Payton v. Cannon, 806 F.3d 1109 (7th Cir. 2015): In the SVP context, the Seventh Circuit has required “research‑based underpinnings” to support restrictions on access to pornography; bare assertions are insufficient. These cases framed the district court’s earlier denials of summary judgment and explain why the Kingston Report became dispositive once properly before the court.

B. The Court’s Legal Reasoning

The Seventh Circuit reviewed the district court’s decision to consider the expert evidence for abuse of discretion. It approached the dispute in three steps:

1. Rule 26 Dispute Framed but Not Decided: The remaining defendants conceded they had not themselves disclosed Dr. Kingston. They argued no violation occurred because Dr. Kingston had been disclosed by co‑defendants before they were dismissed, citing Koenig. The panel explained that Koenig does not control this situation and explicitly declined to decide whether Rule 26 was violated when a party relies on a formerly adverse party’s (now-dismissed) expert disclosure.
2. Harmlessness Under Rule 37(c)(1): The panel held that, even if there was a Rule 26 failure, it was harmless. The court emphasized the purpose of Rule 26’s expert disclosure requirement—to allow the opposing party to “prepare intelligently for trial” and consult other experts about the soundness of the disclosed opinions. The record demonstrated that Kugler had notice of Dr. Kingston and his report as early as 2021 via the clinical directors’ timely disclosures and service. The district court later found Kugler’s contrary assertion “near‑frivolous,” a post‑judgment ruling Kugler did not appeal and which was supported by an affidavit from the Attorney General’s Office.
3. Opportunity to Cure and Lack of Prejudice: When the detention officials re‑submitted the Kingston Report in February 2024 with a motion to dismiss for mootness, the district court explicitly invited a substantive response and signaled that summary judgment might turn on the report. Kugler neither attacked the report’s contents nor requested more time to procure an expert, despite having previously obtained extensions for similar purposes. Under Uncommon and David, these circumstances negated prejudice, demonstrated the availability of cures, and avoided trial disruption or evidence of bad faith. That sufficed to render any Rule 26 lapse harmless.

As a result, the district court permissibly relied on the Kingston Report to conclude there was no triable dispute that Rushville’s pornography restriction was rationally related to legitimate governmental interests—both generally for SVPs and specifically for Kugler—thus satisfying the “research‑based underpinnings” prerequisite articulated in Brown and Payton. The panel therefore affirmed without revisiting the district court’s mootness ruling (which had been resolved against the defendants) or the detailed merits of the First Amendment claim.

C. Practical Impact and Forward-Looking Observations

Although nonprecedential, this decision carries noteworthy implications for litigation strategy and SVP First Amendment cases:

• Cross‑Use of Expert Disclosures: Parties should anticipate that expert disclosures made by one party—particularly co‑defendants—may, in appropriate circumstances, be relied upon by other parties even if the initial disclosing party exits the case. While the Seventh Circuit sidestepped a definitive Rule 26 ruling on this cross‑use after dismissal, its harmlessness analysis underscores that notice and meaningful opportunity to respond can save the evidence from exclusion.
• Harmless Error as a Safety Valve: Rule 37(c)(1) provides flexibility: even where disclosure is technically defective, courts will look to whether the non‑offending party suffered curable prejudice. Litigants should promptly ask for curative measures (e.g., additional time, depositions, leave to retain a rebuttal expert) rather than rely on exclusion as a guaranteed remedy.
• SVP Pornography Restrictions and Evidentiary Burden: The decision reinforces that policies restricting pornography for civil detainees can prevail at summary judgment if backed by credible, research‑grounded expert analysis. Plaintiffs challenging such policies should be prepared to join issue on the merits with counter‑expert testimony or literature, not only procedural objections.
• Interaction Between Motions and the Record: Attaching substantive expert material to a motion that is nominally jurisdictional (e.g., a Rule 12(b)(1) mootness motion) can open the door for a court to evaluate whether summary judgment is appropriate on the merits, so long as the nonmovant receives a fair opportunity to respond. That process can satisfy harmlessness concerns while bringing the dispositive question to a head.
• Baseless Fraud Allegations: The district court’s characterization of Kugler’s accusations as “near‑frivolous,” and the lack of any appeal from that ruling, signals that unsupported claims of falsification can backfire. Parties should be prepared to substantiate such claims with concrete evidence or avoid making them.

D. Key Timeline

• March 2021: Clinical directors timely disclose Dr. Kingston and his report.
• May 2021: Kugler voluntarily dismisses the clinical directors; the detention officials make no expert disclosures.
• 2021–2022: District court twice denies detention officials’ summary judgment motions for lack of evidentiary support.
• February 2024: Detention officials move to dismiss as moot; attach the Kingston Report. Court rejects mootness but invites response on the report and indicates summary judgment may be appropriate.
• 2024: District court grants summary judgment for detention officials, relying on the Kingston Report.
• Post‑judgment: Kugler’s motion alleging falsification is denied; he does not appeal that denial.
• September 29, 2025: Seventh Circuit affirms, holding any Rule 26 failure was harmless.

Complex Concepts Simplified

• Civil detainee vs. prisoner: Individuals civilly committed as SVPs are not serving criminal sentences. They retain more constitutional protections than prisoners, but their liberty can be restricted to advance non‑punitive goals such as treatment, rehabilitation, and institutional security.
• First Amendment standard in SVP facilities: Restrictions on speech and materials (like pornography) are assessed for reasonableness in relation to legitimate, non‑punitive objectives. In the Seventh Circuit, institutional rules need “research‑based underpinnings”—i.e., evidentiary support linking the restriction to the stated therapeutic or security goals.
• Rule 26(a)(2) expert disclosures: Parties must identify any expert they may use at trial and (when required) provide a report. The purpose is to avoid surprise and allow the opponent to prepare and, if needed, retain a rebuttal expert.
• Rule 37(c)(1) harmlessness: If a party fails to disclose, the default sanction is exclusion—but courts can excuse the lapse if it is harmless or substantially justified. Harmlessness turns on prejudice, the ability to cure, potential disruption to the proceedings, and bad faith.
• Summary judgment and “material fact”: Summary judgment is proper when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Expert reports can be dispositive when they eliminate material factual disputes on essential elements.
• Mootness via policy change: A case becomes moot if the challenged conduct ceases and cannot reasonably be expected to recur, leaving no live controversy. A partial policy change that continues to restrict the plaintiff in material ways typically will not moot the case.

Conclusion

This nonprecedential decision reinforces a pragmatic approach to expert disclosure missteps: even if a party fails to identify an expert as required by Rule 26, courts may admit the expert’s opinions where the opponent had timely notice, received the materials again later, and was given a fair chance to respond. The Seventh Circuit’s harmlessness analysis—grounded in David and Uncommon—privileges substance over technicality when prejudice can be cured without disrupting the proceedings.

For civil detainee First Amendment challenges, the case also illustrates that SVP facilities can sustain content‑based restrictions on pornographic materials by furnishing research‑supported expert analysis that ties the policy to legitimate interests in treatment and security. Plaintiffs hoping to prevail on such claims must be prepared to contest the expert record on the merits, not simply through procedural objections.

While not binding precedent, the opinion offers a clear signal: courts will be disinclined to exclude expert evidence on disclosure technicalities where the adversary had notice and a meaningful opportunity to meet the evidence, and they will not countenance unsupported accusations of discovery fraud. The central takeaway is both doctrinal and practical—harmless error under Rule 37(c)(1) can be dispositive when the trial court crafts a fair opportunity to cure, and litigants must engage the merits when the expert record is squarely teed up for decision.