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Heard v. Town of Camp Hill

United States District Court, M.D. Alabama, Eastern Division

August 23, 2017

DOUGLAS R. HEARD, Plaintiff,
TOWN OF CAMP HILL, et al., Defendants.



         Pending before the court are Defendants' Objections to Plaintiff's Expert Witness Disclosures and Motion to Preclude Testimony (Doc. 45)[1] and Defendants' Motion to Extend Deadline for Disclosure of Defendants' Expert Witnesses (Doc. 50). For the reasons set forth below, it is ORDERED that the motions are GRANTED in part and DENIED in part.


         Plaintiff Douglas R. Heard claims that he was wrongfully arrested on three occasions during February and March 2015. Doc. 39. Heard has sued the Town of Camp Hill, Alabama, along with its mayor, Danny Evans; its chief of police, Johnny R. Potts; and a police officer working for the Town, Kendrick Norris. Doc. 39 at 1-2. The core allegations are that the defendants deprived Heard of his civil rights by arresting him without probable cause on each occasion and by subjecting him to verbal and physical abuse during the arrests. Doc. 39 at 3-14. Heard also claims that Potts used excessive force during the February 17, 2015 arrest by handcuffing him too tightly and by “yanking” on the handcuffs after they had been fastened around his wrists. Doc. 39 at 5- 6. Heard alleges that the injuries resulting from Potts' misuse of the handcuffs include “carpal tunnel syndrome and other ailments in his right wrist with swelling and tingling sensations and, at times, numbness.” Doc. 39 at 6.

         After the defendants answered Heard's complaint, the court entered its Uniform Scheduling Order on February 22, 2017, which allowed the parties until September 6, 2017 to complete discovery[2] and included the following provision regarding expert disclosures:

The parties shall disclose to each other the identity of ANY person who may be used at trial to present evidence under Rules 701, 702, 703, or 705 of the Federal Rules of Evidence, and provide the reports of retained experts or witnesses whose duties as an employee of the party regularly involved giving expert testimony, required by Rule 26(a)(2) of the Federal Rules of Civil Procedure,
From the plaintiff(s), on or before July 10, 2017.

From the defendant(s), on or before August 7, 2017.

Doc. 25 at 2. The text of Federal Rule of Civil Procedure 26 parallels this language, mandating that any expert witness “disclosure must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case.” Fed.R.Civ.P. 26(a)(2)(B).[3]

         The Rule 26(a)(2)(B) report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

         (ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

         (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

         (vi) a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B). If the witness is not one from whom a written report is required, the disclosure merely “must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C).

         On July 10, 2017-the last day for expert disclosures consistent with the Uniform Scheduling Order-Heard served on the defendants his “Notice of Expert Witness Disclosures, ” which identified nine expert witnesses he may use at trial. Doc. 45-1. The nine were Robert Schuster, M.D., a physician who treated Heard; James E. Lyle, M.D., another treating physician; Kim Cotney, the communications supervisor with the Tallapoosa County Sheriff's Office; Roosevelt Finley, a former law enforcement officer; Eric Kelley, a law enforcement officer employed by the Dadeville, Alabama Police Department; Nathan White, a law enforcement officer employed by the Lafayette, Alabama Police Department; Frank G. Holley, a former municipal mayor; Ben C. Hand, a former municipal prosecutor; and Rashid Swanson, a technical director and videographer. Doc. 45-1.

         Upon receiving Heard's disclosure, the defendants filed the pending Objections to Plaintiff's Expert Witness Disclosures and Motion to Preclude Testimony (Doc. 45). In summary, the defendants contend that the disclosures do not comply with Rule 26. See Doc. 45 at 2. Rather than meet these objections head on, Heard amended his disclosures for the original nine expert witnesses and identified one additional expert witness, Jeffrey R. Fraser, a licensed physical therapist. Docs. 48 & 48-1. Heard served these supplemental disclosures on August 11, more than one month after the deadline set by the Uniform Scheduling Order. Doc. 48-1 at 20. Although the defendants' objections have remained pending, the Uniform Scheduling Order's clock has continued to run, with the defendants' expert disclosures now due in approximately two weeks, on September 6, 2017. Doc. 44. As a result, the defendants filed a motion seeking an extension of their expert disclosure deadline. Doc. 50 at 3.


         As is evident from the passages excerpted above, the Federal Rules of Civil Procedure establish a two-tiered system for the disclosure of information relating to witnesses who are expected to present opinion testimony. If the witness is “retained or specially employed to provide expert testimony in the case, ” the disclosure must include a written report in the format specified by Rule 26(a)(2)(B). If the witness is not retained or specially employed, the disclosure need not include a formal written report. Fed.R.Civ.P. 26(a)(2)(C). Regardless of categorization, the disclosures must occur within the deadlines set forth in the court's Uniform Scheduling Order and otherwise comply with its provisions-or face the potential for sanctions pursuant to Rule 37(c)(1). In the discussion to follow, the court initially addresses whether Heard's disclosures have complied with even the less stringent disclosure obligations of Rule 26(a)(2)(C). Finding areas of critical noncompliance, the court sustains the defendants' objections to Heard's disclosures. The court next addresses whether any of Heard's proposed witnesses qualify as retained experts under Rule 26(a)(2)(B), finding that Heard has not, to date, provided sufficient information to make this determination as to three potential witnesses. As result, the court orders further supplementation of Heard's disclosures as to certain witnesses, and prohibits Heard from introducing expert testimony at trial from these witnesses unless and until appropriate disclosures have been provided to the defendants. Finally, the court extends the defendants' expert disclosure deadline to allow for adequate time to respond to Heard's amended disclosures.

         A. Sufficiency of ...

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