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LeTourneau v. Venture Corp.

United States District Court, D. Kansas

April 3, 2017




         Plaintiffs Mark LeTourneau and Deborah LeTourneau bring this action to recover personal injury damages arising from a motorcycle accident where he alleges he lost control as the result of uneven payment on the highway. Defendant Venture Corporation was hired by the State of Kansas Department of Transportation to perform the improvements to the highway that led to the alleged uneven pavement. Plaintiffs' Complaint alleges a personal injury action, negligence per se, and loss of consortium.[1] This matter is before the Court on Defendant's Motion to Strike and Exclude Plaintiffs' Designation of Jan Roughan of Roughan & Associates as an Expert (Doc. 54). Defendant alleges Roughan is properly excluded because her expert report does not comply with Fed.R.Civ.P. 26(a)(2). The motion to exclude is fully briefed, and the Court is prepared to rule. For the reasons explained in detail below, the Court denies Defendant's motion.

         I. Background

         Plaintiffs disclosed to Defendant the expert testimony of Jan Roughan of Roughan & Associates on August 8, 2016.[2] Roughan offers testimony relating to a life care plan for Mark LeTourneau. The life care plan offered included needs for past, present, and future procedural intervention, home and facility care, medical care, diagnostic testing, orthotics and prosthetics, psychological services, evaluations and treatment sessions, therapeutic equipment, aids for independent functions, drugs and supplies, wheelchair and mobility needs, home and home maintenance, and transportation. The life care plan included estimated cost for all needs.

         On August 18, 2016, Defendant filed an objection to Roughan's testimony on grounds that it did not comply with the requirements of Fed.R.Civ.P. 26(a)(2)(B).[3] In particular, Defendant alleged that Roughan had (1) not signed the report, (2) had written “DRAFT 8/8/16” in the corner of each page, (3) included internal references that were blank and had phrasing like “awaiting response, ” and (4) failed to state the basis and reasons for the opinions provided or the facts or data she considered in forming the opinion.

         On August 29, 2016, the parties held a mediation, which did not settle the case. However, at the mediation, Defendant's counsel discussed with Plaintiffs' counsel, Michael DeKruif, the deficiencies of Roughan's expert report. Defendant alleges that Plaintiffs' counsel assured him that the expert disclosure was compliant, was accompanied by a letter explaining her opinions, and was not a draft. Plaintiffs allege that their counsel assured Defendant's counsel that he would subsequently provide the signed introductory letter to the expert report as it may have been left out of the initial disclosure in error.

         On September 2, 2016, Defendant's counsel sent Plaintiffs' counsel an email following up on the conversation from August 29.[4] The email explained that if the deficiencies were not remedied by September 7, 2016, Defendant would file a motion to exclude Roughan. On September 7, 2016, Plaintiffs' counsel emailed to Defendant's counsel the cover letter to Roughan's report.[5] The cover letter included Roughan's qualifications, the stated basis and factual considerations for her opinion, her signature, and language stating “[s]hould the need for edits and/or amendments arise, or should additional information become available, I reserve the right to amend the Life Care Plan in accordance with the same.”[6] The motion considered herein was filed following the objection on September 7, 2016 requesting that Roughan's testimony be excluded.[7] According to Defendant's counsel, this motion was filed at 5:45 p.m. before receipt of the email including Roughan's cover letter. On September 19, 2016, per defense counsel's request, Plaintiffs submitted Roughan's report with the word draft omitted.[8]

         Pursuant to the amended scheduling order in place at the time of the motion, Defendant had until October 27, 2016 to disclose rebuttal experts.[9] The Court has since granted another extension of time to disclose rebuttal experts, and the deadline was set at January 13, 2017.[10]

         II. Legal Standard

         Defendant alleges that Roughan's expert report does not meet the requirements of Fed.R.Civ.P. 26(a)(2)(B), which governs the disclosure of expert witnesses. This rule requires that unless otherwise stipulated to or ordered by the court, an expert disclosure must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony. The report must contain:

(1) a complete statement of all opinions the witness will express and the basis and reason for them;
(2) the facts or data considered by the witness in forming them;
(3) any exhibits that will be used to summarize or support them;
(4) the witness's qualifications, including a list of all publications authored in ...

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