United States District Court, S.D. Alabama, Southern Division
V. S. GRANADE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on a motion to compel an expert
disclosure for Dr. Susan Ford that complies with Rule
26(a)(2) of the Federal Rules of Civil Procedure filed by
Petitioner. (Doc. 95). Respondent filed a response in
opposition (Doc. 98), to which Petitioner replied (Doc. 101).
For the reasons set forth herein, the Court denies
26(a)(2) of the Federal Rules of Civil Procedure requires a
party to “disclose to the other parties the identity of
any witness it may use at trial to present evidence under
Federal Rule of Evidence 702, 703, or 705.”
Fed.R.Civ.P. 26(a)(2). Federal Rule of Evidence 702, 703, and
705 address expert witness testimony. Disclosure of any such
witness must satisfy the minimum content criteria of Rule
26(a)(2), unless otherwise ordered by the court. Id.
witness is qualified as an expert by “knowledge, skill,
experience, training, or education” and may provide
opinion testimony if four enumerated criteria are satisfied.
Fed.R.Evid. 702. Conversely, the testimony of a witness is
considered lay witness testimony when it is “(a)
rationally based on the witness's perception; (b) helpful
to clearly understanding the witness's testimony or to
determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of
Rule 702.” Fed.R.Evid. 701.
Advisory Committee explained that the purpose of the 2000
amendment that added subsection (c) to Rule 701 was ‘to
eliminate the risk that the reliability requirements set
forth in Rule 702 will be evaded through the simple expedient
of proffering an expert in lay witness clothing.'”
United States v. Hill, 643 F.3d 807, 841 (11th Cir.
2011) (quoting Fed.R.Evid. 701 Advisory Comm. Notes).
Petitioner contends that the testimony of Dr. Susan Ford, one
of Respondent's disclosed witnesses, is not lay witness
testimony but, in fact, expert testimony. (Doc. 95, p. 3).
“The indication that Dr. Ford will be discussing IQ
testing assessments and specifically the ‘Flynn
effect' suggest that her testimony will involve
‘scientific, technical, or other specialized
knowledge' based on her status as a psychologist.”
Id. at 4. Therefore, as to Dr. Ford, Respondent
should amend his witness disclosure to comply with Rule
the Eleventh Circuit Court of Appeals concluded, “Rule
701 does not prohibit lay witnesses from testifying based on
particularized knowledge gained from their own personal
experiences.” Hill, 643 F.3d at 841. To this,
Respondent avers that Dr. Ford will not offer expert
testimony but “merely testify to the fact that the
Alabama Department of Mental Health and Mental Retardation
does not utilize the ‘Flynn effect' when it tests
an individual to determine whether the individual qualifies
for services from the Alabama Department of Mental Health and
Mental Retardation.” (Doc. 98, p. 2). This “very
limited lay witness” testimony is not based on Dr.
Ford's professional credentials. Id. at 1, 3.
Instead, Dr. Ford's testimony is based on her personal
“knowledge and participation in the day-to-day
affairs” of her ex-employer, which falls outside the
purview of Rule 702. Id. at 3.
as the Advisory Committee Notes explain, “The amendment
does not distinguish between expert and lay
witnesses, but rather between expert and lay
testimony.” Fed.R.Evid. 701 Advisory Comm.
Notes (emphasis in original). More simply, credentials alone
do not make the expert; the testimony based upon the
credentials make the expert. And, as the Eleventh Circuit
found in Tampa Bay Shipbuilding & Repair Co. v. Cedar
Shipping Co., Ltd., opinion testimony regarding the
manner or method upon which a company takes action, which is
based on particularized knowledge gained by a witness's
employment, is properly treated as lay testimony. 320 F.3d
1213, 1223 (11th Cir. 2003).
Petitioner's motion blurs the distinction between
“lay and expert testimony” and
“lay and expert witnesses.” A distinct
difference exists in (1) what Dr. Ford is aware the
Department of Mental Health uses in day-to-day activities
based on her status as an ex-employee and (2) what Dr. Ford
may testify to as a “mental health professional”
regarding the impact of the “Flynn effect” on an
intellectual disability determination. The former is the
proper analysis based on Respondent's position that Dr.
Ford is a “very limited lay witness.” Surely Dr.
Ford is able to answer what the Department of Mental Health
uses based on her particularized knowledge gained in her
position. That employees in other sections of the Department
of Mental Health were or are unaware of whether the
“Flynn effect” is utilized is of no accord. The
Advisory Committee's language speaks to an individual
witness's knowledge and not the knowledge of a collective
body in deciding the applicability of Rule 701. Fed.R.Evid.
701 Advisory Comm. Notes; see also Tampa Bay, 320
F.3d at 1223 (applying Rule 701 based on the employee's
personal knowledge, not company wide knowledge).
other hand, Dr. Ford's testimony as to what the
“Flynn effect” is or its impact in rendering a
decision as to an individual's intellectual disability is
a different story. See Fed. R. Evid. 701 Advisory
Comm. Notes (“If, however, that witness were to
describe how a narcotic was manufactured, or to describe the
intricate workings of a narcotic distribution network, then
the witness would have to qualify as an expert under Rule
702) (citing United States v. Figueroa-Lopez, 125
F.3d 1241, 1246 (9th Cir. 1997)). In such a case, Rule
26(a)(2)'s requirements would be triggered. But such a
case is not before the Court because Respondent insists that
Dr. Ford's testimony will not extend that far.
Furthermore, Petitioner's argument as to the relevance of
Dr. Ford's testimony regarding departmental procedures is
premature since the question at this juncture is whether
Respondent's disclosure measures up.
the Court DENIES Petitioner's ...