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 Plaintiff's Objections to the
Defendants' Expert Witness Disclosures Pursuant to Rule
26 (Doc. 71), which seek to preclude Defendants from offering
expert testimony from a number of witnesses disclosed
pursuant to Federal Rule of Civil Procedure 26. Defendants
have responded in opposition (Doc. 72), and the District
Court referred this motion to the undersigned on November 17,
2017. Doc. 75. For the reasons set out below, Plaintiff's
motion (Doc. 71) is GRANTED in part and DENIED in part.
BACKGROUND AND PROCEDURAL HISTORY
Douglas R. Heard claims that he was wrongfully arrested on
three occasions, and as a result he 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. For a more
detailed discussion of Heard's claims and the procedural
history of this case, the court refers the parties to its
Order of August 23, 2017. See Doc. 51.
August 23 Order addressed the same issue now before the
court-whether the parties' expert witness disclosures
comply with Rule 26(a)(2). Then, Defendants claimed that
Heard had not satisfied Rule 26. See, e.g., Doc. 45.
The court granted some, but not all, of the relief they
requested. Now, the shoe is on the other foot, with Heard
claiming that Defendants' disclosures are insufficient in
five ways: (1) the disclosure for Judge Charles Price does
not appropriately identify the facts or data upon which his
testimony is based; (2) the disclosure for Potts does not
appropriately describe his anticipated opinions; (3) the
disclosure for Norris does not appropriately describe his
anticipated opinions; (4) the disclosure for Norris
references an opinion regarding the 911 telephone system that
is irrelevant to the case; and (5) the blanket disclosure of
Heard's medical or mental health professionals is
inappropriate. Each objection is addressed below.
A. Disclosure for Judge Price
have identified Judge Price as a retained or specially
employed expert, triggering the heightened disclosure
requirements of Rule 26(a)(2)(B). Doc. 71-1 at 1. Heard
objects to the representation in Judge Price's report
that it “outlines ‘exhibits that will be used to
summarize or support'” his opinions. Doc. 71 at 1.
Instead, Heard claims that the report “simply lists 24
items that the expert states were reviewed. There are no
specific exhibits cited as indicated in the Defendants'
disclosures.” Doc. 71 at 2.
26(a)(2)(B)(iii) requires expert reports to “contain
any exhibits that will be used to summarize or support [the
expert's opinions].” Heard admits that the report
identifies 24 specific exhibits on which Judge Price bases
his opinions, and at any rate the court finds that Judge
Price's report sufficiently identifies his opinions and
the information upon which they are based. See
generally Doc. 71-1. The report does not, however,
“contain” the exhibits within the customary
meaning of that word. The question, then, is whether
Defendants' failure to attach the exhibits to Judge
Price's disclosure renders the disclosure insufficient.
As the court observed when it last addressed this issue,
“the expert witness discovery rules are designed to
allow both sides in a case to prepare their cases adequately
and to prevent surprise.” Cooper v. Southern
Co., 390 F.3d 695, 728 (11th Cir. 2004), overruled
on other grounds by Ash v. Tyson Foods, Inc., 546 U.S.
454, 457-58 (2006). There is no meaningful potential for
surprise when Defendants have identified the 24 categories of
evidence upon which Judge Price relied. Nor is there
asymmetry in the expert disclosures provided by Heard and
Defendants, as both expert disclosures described the evidence
viewed by the respective experts in lieu of attaching
physical copies of these documents to the disclosures.
See, e.g., Doc. 48-1 at 2 (disclosing Heard's
treating physician's reliance on Heard's medical
records, which were produced in discovery but not attached to
most-if not all-of the 24 categories of evidence disclosed in
Judge Price's report appear either to be discovery
materials exchanged by the parties to this case or pleadings
filed in this court. See Doc. 71-2 at 2-3 (listing,
for example, eight deposition transcripts, the video
recording of Heard's arrest by Potts, and a number of
specific pleadings). The court finds no prejudice to Heard if
the documents Defendants have identified are already in his
attorney's possession. This is particularly true when
Heard's counsel chose to employ the same procedure.
However, to the extent Judge Price has relied on evidence
that is not available to Heard or has not been previously
produced in discovery, Defendants are ORDERED to provide a
copy of that evidence to Heard no later than November 22,
2017. Heard's objections to Judge Price's disclosure
are OVERRULED in all other respects.
Disclosures for Potts and Norris
Defendants have identified Potts and Norris as experts who
are not retained or specially employed, traveling under Rule
26(a)(2)(C)'s more relaxed standard. See Doc.
71-1 at 2. Heard has not contested this status. Under Rule
26(a)(2), parties must disclose “the identity of any
witness [the party] may use at trial to present evidence
under Federal Rule of Evidence 702, 703, or 705.”
Fed.R.Civ.P. 26(a)(2)(A). Thus, the threshold issue is
whether Potts and Norris will present evidence within the
ambit of Rules 702, 703, or 705. In addition to identifying
both Potts and Norris as experts in the disclosures,
Defendants state that Potts and Norris will offer opinions
based on their “training, experience, education and
personal observations” about whether Potts' actions
were “consistent with standard operating procedures and
commonly accepted practices for law enforcement officers in
the State of Alabama.” Doc. 71-1 at 2. Based on these
representations, the court concludes that both Potts and
Norris qualify as experts under Rule 26(a)(2)(C).
Rule 26 compels the defendants to provide “the subject
matter on which the witness is expected to present evidence .
. . and a summary of the facts and opinions to which the
witness is expected to testify.” Fed.R.Civ.P.
26(a)(2)(C). Defendants have met these requirements. As
quoted above, Defendants disclosed the subject matter on
which Potts and Norris will testify-whether the level of
force employed by Potts when he arrested Heard was
appropriate and sufficient to cause injury. Further, contrary
to Heard's assertions, Defendants have provided a summary
of the facts and opinions to which Potts and Norris will
testify-that Potts applied handcuffs in a manner consistent
with commonly-accepted practices and procedures for Alabama
law enforcement officers, that the force was minimal and not
excessive, and that the force would not have caused injury.
See Doc. 71-1 at 2. Defendants also indicate that
Potts and Norris will testify that the 911 telephone system
is generally used for emergencies only, and that any
additional facts to which each may testify are included in
their September 28, 2017 depositions. See Doc. 71-1
contends that Defendants were required to explain, in detail,
what practices and procedures are commonly-accepted in the
law enforcement community and what constitutes force that is
minimal, not excessive, and insufficient to cause injury.
This is not what Rule 26(a)(2) compels and is a far higher
burden than what the court required of Heard in its August
23, 2017 Order. See Fed. R. Civ. P. 26(a)(2)(C)(ii)
(providing for a “summary of the facts and opinions to
which the witness is expected to testify”); Doc. 51 at
7 (noting that Plaintiff's disclosure indicated that a
medical doctor would “provide an opinion regarding the
Plaintiff's physical health conditions prior to and since
the incident made the basis of this lawsuit, ” without
defining what that opinion would be). Far from creating
surprise, the disclosures of Potts and Norris explain that
both will testify that, according to the policies and
procedures applicable to Alabama police officers, the force
employed by Potts was minimal, not excessive, and not
sufficient to cause injury. Defendants have provided the
subject matter of Potts and ...