United States District Court, M.D. Alabama, Eastern Division
DOUGLAS R. HEARD, Plaintiff,
TOWN OF CAMP HILL, et al., Defendants.
M. BORDEN, UNITED STATES MAGISTRATE JUDGE
before the court are Defendants' Objections to
Plaintiff's Expert Witness Disclosures and Motion to
Preclude Testimony (Doc. 45) 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
BACKGROUND AND PROCEDURAL HISTORY
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
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 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,
From the defendant(s), on or before August 7,
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.
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;
the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or
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
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).
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.
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.
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
Sufficiency of ...