United States District Court, D. Kansas
JEFFREY D. CHAMBERS, Plaintiff,
TIMOTHY A. FIKE, et al., Defendant.
MEMORANDUM AND ORDER
K. GARY SEBELIUS, Magistrate Judge.
This matter comes before the Court upon Defendant Crete Carrier Corporation's Motion to Strike Plaintiff's Notice of Expert Witness Disclosures (ECF No. 25). Crete Carrier's motion argues that Plaintiff Jeffrey D. Chambers' expert witness disclosures fail to comply with the requirements set forth in Fed.R.Civ.P. 26(a)(2), which governs retained and non-retained expert disclosures. Based on the following reasons, Crete Carrier's motion is denied.
I. Relevant Background
On October 31, 2011, a vehicle accident occurred involving a vehicle driven by Mr. Chambers and a semi-truck owned by Crete Carrier and driven by one of its employees, Timothy Fike. Mr. Chambers subsequently brought this personal injury action against Crete Carrier and Mr. Fike, alleging injuries and damages as a result of the accident.
In February 2014, the Court entered a scheduling order establishing all case management deadlines in this case, including the deadline of April 11, 2014, for Mr. Chambers to serve his expert witness disclosures. On April 11, 2014, Mr. Chambers served his expert witness disclosures, designating Chet Buchman, Dennis Shaw, Dr. Alexander Bailey, and "[a]ll other medical providers whose opinions are consistent with their reports and records which have been previously produced" as experts. On February 20, 2014, preceding service of his expert disclosures, Mr. Chambers served Crete Carrier his Rule 26(a)(1) initial disclosures, which included copies of a "Damage Estimate" report authored by Mr. Buchman, a "Crash Investigation Report" authored by Mr. Shaw, and an independent medical examination report authored by Dr. Bailey.
On April 25, 2014, Crete Carrier served objections to Mr. Chambers' expert disclosures. The present motion to strike was filed thereafter and alleges that Mr. Chambers' expert disclosures are insufficient. Specifically, Crete Carrier argues that Mr. Buchman and Mr. Shaw are retained experts, and therefore, should have provided a written report in compliance with Rule 26(a)(2)(B), which governs retained expert disclosures. Moreover, Crete Carrier argues Dr. Bailey's disclosure is also not accompanied by a written expert report adhering to the specific Rule 26(a)(2)(B) requirements. Crete Carrier further argues that Mr. Chambers' disclosure of "all other medical providers" fails to comply with Rule 26(a)(2)(C), which governs non-retained expert disclosures.
Mr. Chambers disagrees with Crete Carrier's assertions and proclaims that striking these disclosures is unwarranted. He argues that Mr. Buchman and Mr. Shaw are not retained experts requiring Rule 26(a)(2)(B) written reports. He contends that he only provided expert reports of these two witnesses in his Rule 26(a)(1) initial disclosures out of an abundance of caution. Further, he offers to supplement his disclosures to cure any deficiencies.
The Court will address Crete Carrier's arguments in turn after first determining two initial matters-whether the Court should consider: (1) Crete Carrier's request for relief raised first in his reply brief, and (2) Mr. Chambers' surreply to the present motion.
II. The Court's Consideration of New Relief Raised in Reply Brief and Surreply
For the first time in its reply brief, Crete Carrier requests the Court to extend the deadline to complete all physical or mental examinations under Fed.R.Civ.P. 35 and to serve its own expert disclosures. In this instance, the Court declines to enter an order granting such extensions arising for the first time in a reply brief. According to the Tenth Circuit, the rationale of this rule is "obvious." "Allowing a moving party to raise an issue for the first time in a reply brief robs the opposing party of the opportunity to demonstrate that the record does not support the moving party's factual assertions and/or to present an analysis of the legal issues and precedent that may compel a contrary result." In addition, Crete Carrier fails to comply with D. Kan. Rule 6.1, which requires any motion for an extension of time to perform an act to show "whether there has been prior consultation with other parties and the views of other parties." Crete Carrier request is denied.
On June 23, 2014, Mr. Chambers filed a surreply to the current motion. Under D. Kan. Rule 7.1(c), briefing on motions is limited to the motion (with memorandum in support), a response and a reply. Surreplies typically are not allowed. "They are permitted in rare cases only, and not without leave of court." There is no justification for a surreply that essentially provides additional and longer arguments. The parties' briefing "must have an end point and cannot be permitted to become self perpetuating." Nonetheless, as the Tenth Circuit explains,
the nonmoving party should be given an opportunity to respond to new material raised for the first time in the movant's reply. If the district court does not rely on the new material in reaching its decision, however, it does not abuse its discretion by precluding a surreply. "Material, " for purposes of this framework, includes both new evidence and new legal arguments.
Here, Mr. Chambers failed to seek leave of the court to file a surreply. His surreply also predominately serves as an expansion of his arguments set forth in his response to Crete Carrier's motion. Any arguments relating to Crete Carrier's newly proposed request for relief will also not be considered because the Court did not rely upon the new material in reaching its decision. For these reasons, the Court finds Mr. Chambers' surreply to be improper and will not be considered by this Court.
Rule 26(a)(2) governs the disclosure of expert testimony. Rule 26(a)(2)(A) requires a party to "disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Depending upon the nature of the witness, a party may also need to disclose additional information. Pursuant to Rule 26(a)(2)(B), a witness "retained or specially employed to provide expert testimony in the case or one whose ...