United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
matter comes before the court on defendants' Terrie Adams
and Craig Broombaugh's Joint Motion to Exclude Untimely
Disclosed Expert Testimony (Doc. 877). The government
responded (Doc. 884). For reasons explained below, the court
grants defendants' Motion in part and denies it in part.
court held a motion hearing in this case on January 26, 2017.
One of the motions at issue was the defendants' Joint
Motion to Exclude Untimely Disclosed Expert Testimony (Doc.
877). Defendants Michelle Reulet and Craig Broombaugh
initially filed the Motion. Defendant Terrie Adams joined the
Motion. Doc. 886. Ms. Reulet has since pleaded guilty.
their Motion, defendants assert that the government's
Third Amended Notice of Intent to Use Expert Witnesses
(“Third Amended Notice”) constitutes an untimely
disclosure. Defendants contend that the government has
disclosed several new witnesses after the deadline
established by the Scheduling Order and unfairly expanded the
scope of several other expert witnesses. Specifically,
defendants oppose newly disclosed testimony from Mr. Jason
Henninger, Dr. Jordan Trecki, Dr. Daniel Willenbring, Dr.
Arthur Simone, Mr. Lyndell Griffin, Mr. Lee Roediger, and Mr.
Gorden Kwan. The defendants contend that the government's
Third Amended Notice, filed 60 days before trial, prejudices
them by negating their ability to challenge the admissibility
of the disclosed experts' testimony.
deadline for filing Pretrial Motions and Motions in Limine
was November 22, 2016. The government filed its Third Amended
Notice of Intent to use Expert Testimony on December 1, 2016.
Crim. P. 16(a)(1)(G) provides that “[a]t the
defendant's request, the government must give to the
defendant a written summary of any testimony that the
government intends to use under Rules 702, 703, or 705 of the
Federal Rules of Evidence during its case-in-chief at
trial.” Fed.R.Evid. 702 governs admissibility of expert
testimony. It provides that a witness may testify as an
expert if they are “qualified as an expert by
knowledge, skill, experience, training, or education”
in “scientific, technical, or other specialized
knowledge” that “will assist the trier of fact to
understand the evidence or to determine a fact in
issue.” Fed.R.Evid. 702.
701 governs the admissibility of lay opinion testimony by
persons who do not qualify as experts. It provides that
“[i]f a witness is not testifying as an expert,
testimony in the form of an opinion is limited to one that
is” rationally based on the witness's perception,
helpful to clearly understanding the witness's testimony
or to determining a fact in issue, and not based on
“scientific, technical, or other specialized knowledge
within the scope of Rule 702.” Rule 16(a)'s
disclosure requirement does not apply to non-expert
witnesses. See United States v. McIntosh, No.
11-20085-01-KHV, 2016 WL 4159723 (D. Kan. Aug. 5, 2016)
(finding that the government was “not required to give
prior notice of” testimony of witnesses who are not
called as “expert witnesses” under Rule 702).
party fails to comply with its disclosure obligations under
Fed. R. Crim. P. 16, the court has several sanctions at its
disposal. For instance, the court may: (1) order that party
to permit discovery or inspection; (2) grant a continuance;
(3) prohibit the party from introducing the undisclosed
evidence; or (4) enter any other order that is just under the
circumstances. Fed. R. Crim. P. 16(d)(2). The Tenth Circuit
has identified several factors that courts should consider
when deciding whether a sanction is appropriate. United
States v. Wicker, 848 F.2d 1059, 1061 (10th Cir. 1988).
They are: (1) the reason for the delay, including whether the
government acted in bad faith; (2) the extent of prejudice to
the defendant as a result of the government's delay; and
(3) the feasibility of curing the prejudice with a
do not contend that the government acted in bad faith when it
filed its Third Amended Notice after the operative deadline.
And, because this case already has celebrated its third
anniversary, “curing the prejudice with a
continuance” is not an option the court will consider.
So, when deciding whether to exclude the newly disclosed
testimony, the court considers only “the extent of
prejudice to the defendant as a result of the
government's delay.” See Id.
these standards in mind, the court turns to the
government's Third Amended Notice. In it, the government
disclosed testimony for seven of its expert witnesses.
Defendants contend these disclosures were untimely, and as
consequence, prejudicial. Defendants assert that the lateness
of these disclosures deprives them of any meaningful ability
to challenge the admissibility of the newly disclosed
testimony. The court addresses the testimony of each of the
government's expert witnesses individually, and in the
sequence that they are listed in the government's Third