United States District Court, N.D. Alabama, Western Division
MICHAEL W. RONDINI, et al., Plaintiffs,
v.
TERRY J. BUNN, Defendant.
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 ...