Rondini v. Bunn

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         This case is before the court on Defendant Terry J. Bunn, Jr.'s (“Defendant”) Motion to Strike Plaintiff's Expert Witnesses. (Doc. # 140). The Motion has been fully briefed (see Docs. # 140, 144, 147) and is ripe for review. After careful review, and for the reasons discussed below, the court concludes that Defendant's Motion to Strike is due to be denied as to Dr. Arnold and granted in part and denied in part as to Dr. Rezaee.

         I. Background

         Plaintiffs, the Rondinis, are Megan Rondini's parents and have brought this wrongful death action as the Personal Representative of the Estate of Megan Rondini, their deceased daughter. Plaintiffs allege that Defendant intentionally imprisoned and sexually assaulted the decedent on the evening of July 1, 2015, which led to the decedent's eventual suicide on February 26, 2016. (See generally Doc. # 100).

         Defendant moves to strike two of Plaintiffs' three proposed expert witnesses, claiming they were not timely disclosed under Federal Rule Civil Procedure 26(a)(2)(A). (Doc. # 140). Under the applicable Scheduling Order, Plaintiffs were required to disclose any and all retained experts by November 9, 2018, and discovery was to be completed by April 22, 2019. (Docs. # 98, 107). On November 9, 2018, Plaintiffs disclosed to Defendant a single expert witness, Dr. Barbara Ziv, and provided her expert report. (Doc. # 140 at 2, ¶¶ 4-5). Plaintiffs did not disclose their intention to use Dr. Ziba Rezaee or Dr. Susan Arnold until they filed their response to Defendant's Motion for Summary Judgment on August 12, 2019. (Docs. # 140 at 4, ¶¶ 17, 19; # 139 at 32-33).

         Defendant argues that because of this late disclosure, Plaintiffs are barred under Federal Rules of Civil Procedure 26(a)(2)(B)-(C) and 37(c)(1) from using Dr. Rezaee's and Dr. Arnold's testimony and/or “expert” opinions to support their claims due to the “high level of surprise and prejudice” they have and will experience. (Doc. # 144 at 5, 11). Plaintiffs argue that Dr. Rezaee and Dr. Arnold are fact witnesses, not expert witnesses, “because their testimony is based on personal observations during the course of [Megan's] treatment.” (Doc. # 144 at 1).

         II. Standard of Review

         A. The Rule 26(a)(2)(A) and Rule 37(c) Disclosure Standards

         Under Federal Rule of Civil Procedure 26(a)(2)(A), “a party must disclose to the other parties the identity of any witnesses it may use at trial.” This disclosure must include “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 or one whose duties as the party's employee regularly involve giving expert testimony.” Fed.R.Civ.P. 26(a)(2)(B). However, “Rule 26(b)(4) anticipates that not all expert witnesses will prepare reports[] and allows the taking of depositions of non-reporting experts. . . . A treating physician is not always a specially retained expert witness under Fed.R.Civ.P. 26(a)(2)(B).” Brown v. Best Foods, A Div. of CPC Int'l., Inc., 169 F.R.D. 385, 387 (N.D. Ala. 1996). Federal Rule 26(a)(2)(C) provides:

[I]f a witness is not one who has to provide a written report, but the witness will present evidence under Rule 702, 703, or 705, then the subject matter on which the witness is expected to present evidence under Rules 702, 703, or 705, and a summary of the facts and opinions to which the witness is expected to testify[, ] must be disclosed.

Trinidad v. Moore, 2016 WL 5341777, at *2 (M.D. Ala. Sept. 23, 2016). And finally, these disclosures must be made “at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). “If a party fails to provide information or identify a witness as required by Rule 26(a) . . . the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

         III. Analysis

         “[T]he expert disclosure rule is intended to provide opposing parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses.” Reese v. Herbert, 527 F.3d 1252, 1265 (11th Cir. 2008). The rule also seeks to allow for opposing counsel to have an “opportunity to depose [the disclosed expert], proffer a rebuttal expert, or file a Daubert motion.” Reyes v. BJ's Restaurants, Inc., 774 Fed.Appx. 514, 517 (11th Cir. 2019). The rules governing expert witnesses are found in Federal Rule of Evidence 702: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” an expert “may testify thereto.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993) (quoting Fed.R.Evid. 702). “Unlike an ordinary witness . . . an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Id. at 591.

         However, under Federal Rule of Evidence 701 -- the rule governing lay witnesses -- a lay witness may testify in the form of an opinion, but such testimony must be limited to opinion evidence that is: (1) “rationally based on the witness's perception;” (2) “helpful to clearly understanding the witness's testimony or to determining a fact in issue;” and (3) “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701. A lay witness is also not required to give a written report under Rule 26(a)(2)(B). Brown, 169 F.R.D. at 387. Indeed, “the ability to ...