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Hayes v. American Credit Acceptance, LLC

United States District Court, D. Kansas

August 12, 2014

GINGER HAYES, et al., Plaintiffs,
v.
AMERICAN CREDIT ACCEPTANCE, LLC, et al., Defendants, and REPO REMARKETING, INC., Third-Party Defendant.

MEMORANDUM AND ORDER

K. GARY SEBELIUS, Magistrate Judge.

This matter comes before the court upon Defendant Find Track Locate, Inc.'s Motion to Strike Plaintiffs' Rule 26(a)(2) Expert Designations (ECF No. 52). For the reasons explained below, Find Track Locate's motion is denied.

I. Background

Plaintiffs Ginger A. Hayes, Richard W. Hayes, and Richard L. Hayes assert claims against the defendants stemming from incidents associated with attempts to collect an alleged debt and enforce a security interest. They assert claims under the Kansas Consumer Protection Act (KCPA), 50 K.S.A. 623, et seq. The Second Amended Complaint also alleges that Plaintiffs Ginger W. Hayes and Richard W. Hayes are considered disabled persons under the KCPA, which would entitle them to enhanced penalties if they prevail. Plaintiffs allege that Ginger W. Hayes is a disabled person because she suffers from and is treated for anxiety.[1] They allege Richard L. Hayes is a disabled person because he suffers from severe coronary artery disease.[2]

On April 3, 2014, plaintiffs designated their expert witnesses. Included in the designations are "non-retained expert Dr. Robert Mingle" and "non-retained expert Dr. Charles Barth, III."[3] Dr. Mingle is Ginger Hayes' treating physician, and Dr. Barth is Richard L. Hayes' treating physician. The disclosures state that the treating physicians are anticipated to testify about their patients' health conditions, which may ultimately support a finding that they are "disabled persons" under K.S.A. ยง 50-676(b), and the treating physicians are also anticipated to testify that their patients' health conditions were aggravated as a proximate result of defendants' conduct.

II. Discussion

Although plaintiffs' disclosures specify that the treating physicians are non-retained experts, Defendant Find Track Locate (FTL) contends that the scope of the treating physicians' anticipated testimony would render them subject to the requirements of retained experts, which would include submission of formal expert reports. Because the treating physicians did not submit formal expert reports, FTL argues that the court should strike their expert designations. Alternatively, FTL argues that even if the scope of the treating physicians' proposed testimony does not render them subject to the requirements of formal experts, plaintiffs' summaries of the treating physicians' anticipated testimonies are also insufficient, and for that reason, the court should also strike their designations.

Rule 26(a)(2) governs disclosure of expert testimony. A witness "retained or specifically employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony" must prepare an expert report.[4]

The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) 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 ...

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