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Adkins v. TFI Family Services, Inc.

United States District Court, D. Kansas

July 24, 2017

DON ADKINS, ELLEN ADKINS, and DON ADKINS o/b/o T.A., a minor, Plaintiffs,
v.
TFI FAMILY SERVICES, INC., Defendants.

          MEMORANDUM AND ORDER

          GERALD L. RUSHFELT UNITED STATES MAGISTRATE

         Plaintiffs have brought this action against TFI Family Services, Inc. and six other Defendants. The complaint alleges various claims, arising from an adoption. The case has presented significant discovery issues, and the Court has ruled on motions related to these issues.[1] The matter comes before the Court on two additional, discovery-related motions, Defendants' Motion to Strike Plaintiffs' Retained Expert Spence Shumway (ECF 125) and Defendants' Motion to Compel Plaintiffs to Provide Responses to Defendants' Second Requests for Production of Documents (ECF 207). The motions are fully briefed, and the Court is prepared to rule. For the reasons stated below, the Court grants Defendants' motion to strike, and grants in part and denies in part Defendants' motion to compel.

         I. Background

         Plaintiffs designated their experts, including Spence Shumway, on February 17, 2017. Plaintiffs retained Mr. Shumway, an accountant, to provide testimony regarding their damages. He submitted an expert witness report, pursuant to Fed.R.Civ.P. 26(a)(2)(B). It includes schedules to summarize medical costs incurred by Plaintiffs, sources of information for these costs, a summary of “anticipated amendments” to the report, information regarding Mr. Shumway's compensation, and an “abbreviated CV.”[2] Mr. Shumway proposed to testify about Plaintiffs' damages, and he relied largely on interviews with Plaintiffs-which in turn were based on their conversations with their children's physicians-to inform his calculations. Mr. Shumway also stated in his report that he had not made certain calculations about which he intends to testify, but that he would make them before trial. He also stated he would supplement his “abbreviated CV” at a later time.

         Defendants served their Second Requests for Production of Documents on Plaintiffs on February 28, 2017. Defendants sought documents related to damages and attorney's fees, projections Mr. Shumway made in his report, as well as his complete CV. Defendants also requested documents that relate to medical and psychotherapy treatment of Plaintiffs' children and correspondence between Plaintiffs and their insurance provider. Plaintiffs responded that some of these documents had already been provided to Defendants in an email of March 21, 2017. Plaintiffs objected to production of other documents upon grounds the requests for them were not reasonably calculated to lead to the discovery of admissible evidence.

         II. Motion to Strike

         Defendants move to strike Mr. Shumway as an expert. They argue that his report fails to comply with Fed.R.Civ.P. 26(a)(2)(B). The rule requires the following information for retained expert witnesses, such as Mr. Shumway:

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this 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 in the case or one whose duties as the party's employee regularly involve giving expert testimony. 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 trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.[3]

         “The purpose of Rule 26(a)(2) is to require disclosure of expert testimony sufficiently in advance of trial so that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses.”[4] “An incomplete or preliminary report does not comply with Rule 26(a)(2).”[5] “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), 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.”[6] Courts can impose a wide range of sanctions, authorized by Fed.R.Civ.P. 37(c)(1), for failure to meet the disclosure requirements for retained expert witnesses, including exclusion of testimony.[7] But “[i]n ruling on a motion to exclude expert testimony or strike an expert witness under Rule 37(c)(1), the court should bear in mind that it is a ‘drastic sanction.'”[8]

         Defendants do not frame their motion as one for sanctions under Rule 37(c). They instead argue that Mr. Shumway should be stricken as an expert, because his report fails to meet the requirements of Rule 26(a)(2)(B). Accordingly, neither party addresses the relevant standards under Rule 37(c), including whether any failure of Plaintiffs or Mr. Shumway to disclose was substantially justified or harmless. The Court will construe Defendants' motion, however, as one seeking to strike Mr. Shumway's testimony as a Rule 37(c) sanction. Courts have previously construed motions to strike expert testimony for failure to comply with Rule 26(a)(2)(B) in this way, and the Court is unaware of any other mechanism that permits striking of expert testimony for failure to comply with Rule 26(a)(2)(B).[9] Accordingly, in considering Defendants' motion as a motion to strike under Rule 37(c), the Court will first consider whether Mr. Shumway's report complied with Rule 26(a)(2)(B), and if it did not, whether that failure to comply was substantially justified or harmless.

         A. Rule 26(a)(2)(B) Requirements

         Defendants argue that Mr. Shumway's report fails to meet the requirements of Rule 26(a)(2)(B) in that it fails to include the following: (1) a complete statement of all opinions Mr. Shumway will express and the basis and reasons for them; (2) the facts or data considered by Mr. Shumway in forming the opinions; (3) any exhibits that will be used to summarize or support them; (4) a list of all publications authored by him in the previous 10 years; and (5) a list of all other cases in which, during the previous 4 years, he testified as an expert at trial or by deposition. Defendants also argue, in their Reply, that his report relies largely on inadmissible hearsay, and that he cannot opine on Plaintiffs' alleged real estate losses, because the Federal Rules of Evidence consider testimony as to property valuation to be expert opinion.

         In their Response Plaintiffs do not contend that they have met all the requirements of Rule 26(a)(2)(B).[10] Instead they contend that Defendants have failed “to articulate how they are now unable to examine the Accountant prior to trial, including serving a subpoena duces tecum on the Accountant or inquiring of certain matters of the Accountant at a deposition.”[11]

         Plaintiffs also rely heavily on Ryan Development Co. v. Indiana Lumbermans Mutual Insurance Co.[12] In Ryan the plaintiff intended to present at trial testimony from several accountants as to the amount of damages.[13] The Court made an in limine ruling that the accountants could not testify as experts, but could testify as fact witnesses, because they had personal knowledge of the plaintiffs' accounts.[14] After trial the defendant moved for judgment as a matter of law or for new trial. They argued that, although the accountants' testimony was couched as lay testimony, it was in fact expert opinion testimony.[15] In denying the defendant's motion, the Court held that the accountants' testimony was lay testimony, rather than improper expert testimony, because (1) the accountants testified based on their personal knowledge of plaintiff's books, documents and tax returns; and (2) “they did not testify as to special accounting procedures or complicated, specialized methods used to calculate the loss, ” but instead testified about loss figures using “simple mathematical equations” and “straightforward calculations.”[16]Plaintiffs argue that “the similarity between the instant case and the Ryan case is uncanny” because like the accountants in Ryan, Mr. Shumway used no specialized formulas or techniques.[17] Thus, Plaintiffs appear to argue that the Rule 26(a)(2)(B) requirements need not be met because, like the accountants at issue in Ryan, Mr. Shumway will offer lay testimony that does not depend on “specialized formulas or techniques.”[18]

         Before addressing whether Mr. Shumway's report complied with Rule 26(a)(2)(B), the Court first considers what Plaintiffs argue, based on Ryan, that Mr. Shumway's report need not comply with the rule. Ryan is readily distinguishable from this case, however, for a variety of reasons. But most importantly, the Court in Ryan found that the accountants there were presenting lay testimony, which is not subject to the requirements of Rule 26(a)(2)(B).[19] In the instant case, however, Plaintiffs propose Mr. Shumway for expert testimony. They have listed him in their expert designations. And he has provided what they contend to be an expert report, pursuant to Rule 26(a)(2)(B).[20] Accordingly, the Court finds his report is governed by and must comply with Rule 26(a)(2)(B).

         Defendants correctly note that Mr. Shumway's report lacks several components that Rule 26(a)(2)(B) requires. First, it does not contain a summary of “all opinions [Mr. Shumway] will express and the basis and reasons for them.”[21] For example, he states he will testify as to future costs and explains that the figures are “not calculated at this time, but will for trial.”[22] Similarly, he fails to provide all “facts or data considered by the witness in forming his opinions.”[23]Although he provides various figures for out-of-pocket “Medical” costs for the years 2013 through 2016, he provides no supporting facts about these expenses or how they originate.

         Mr. Shumway also fails to provide any “exhibits that will be used to summarize or support” his opinion.[24] He simply states that the source of his figures is Mr. and Mrs. Adkins and their conversations with physicians, but he provides no supporting documentation or analysis for his conclusions. But the Court is not convinced that he did not rely on any documentation of costs to reach the highly detailed figures he provides in his report, or that he will not rely on such documentation at trial to support his opinion. Indeed, contrary to his suggestion that he relied only on conversations with Plaintiffs to reach his calculations, they themselves assert in their Reply that “[t]he Schedule Report clearly states that [Mr. Shumway] summarized the costs based on information and documents provided by Plaintiffs.”[25] These purported documents were not included in Mr. Shumway's report. Finally, Mr. Shumway's report-specifically, the “abbreviated CV” he included-does not include “a list of all publications authored in the previous 10 years.” Nor does it list “all other cases in which, during the previous 4 years, the witness has testified as an expert at trial or by deposition.”[26]

         The Court again notes that Plaintiffs do not argue that these Rule 26(a)(2)(B) requirements have been meet. They instead propose that Defendants can obtain additional information by subpoena and deposing Mr. Shumway. Their proposal suggests that he has not disclosed all information relevant to the Rule 26(a)(2)(B) requirements. For these reasons and those explained above, the Court finds that Mr. Shumway's report does not comply with Rule 26(a)(2)(B).

         B. Substantial Justification or Harmlessness

         Having found that Mr. Shumway's report fails to comply with Rule 26(a)(2)(B), the Court turns to whether that failure was substantially justified or harmless. “The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court.”[27] While a court “need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose, ” the court should be guided by the following factors: (1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability to cure any prejudice; (3) the potential for trial disruption if the testimony is allowed; and (4) the erring party's bad faith or willfulness.”[28] “The burden to demonstrate substantial justification and the lack of harm is on the party who failed to make the required disclosure.”[29] “The substantial justification requirement is satisfied where there exists a genuine dispute concerning compliance.”[30]

         The Court finds that Plaintiffs have not met their burden to demonstrate substantial justification or harmlessness of their failure to meet the Rule 26(a)(2)(B) requirements. First, the potential prejudice or surprise to Defendants because of the non-compliance is substantial. Mr. Shumway did not provide in his report all of the opinions and projections of damages that he proposes to express at trial or the facts and data he will use to support those opinions.[31] Indeed, his report lacks key information that he simply offers to include “if this matter continues to jury [t]rial, ” such as adjustments for inflation, damages beyond 2024, projected damages related to Plaintiffs' move from Georgia to Florida, and additional information to be included in his CV.[32]Rule 26(a) provides no justification for a proffered expert witness simply to defer his disclosures to the time of trial. If Defendants must wait until trial to obtain Mr. Shumway's complete damages projections, the documents upon which he relies, a complete CV that identifies past publications and previous testimony, or other information required for him to provide in a Rule 26(a)(2)(B) expert report, they may not be able to effectively prepare for trial. Neither Plaintiffs nor Mr. Shumway provide good reason for the incompleteness of his report.[33] And there is no indication that the missing information, which the report states will be provided at trial, was not reasonably available to Mr. Shumway at the time he prepared his report. The Court finds no difficulty in concluding that Defendants would be unnecessarily prejudiced or surprised by their failure to provide the proposed amendments to Mr. Shumway's report and testimony at trial.

         Second, although Plaintiffs may have an opportunity to cure their non-compliance because trial has not yet been scheduled, the Court finds that this factor does not weigh in favor of either granting or denying the motion. Neither Plaintiffs nor Mr. Shumway have made any suggestion that they intend to provide the supplemental information at any particular time before trial. Thus, the Court is skeptical that Plaintiffs will timely cure the non-compliance, if the instant motion is denied.

         Third, the Court is concerned that the potential for trial disruption is great, if Mr. Shumway's testimony is allowed with his report in its current form. As already noted, his report is lacking in key information about the opinions he will express, the facts he will use to support those opinions, and background information about him. As already noted, he states he will provide this information at trial.[34] Without this information sufficiently in advance of trial, however, Defendants cannot effectively prepare their cross-examination of Mr. Shumway. Nor can they adequately and timely designate their opposing experts. In fact, the failure of Plaintiffs and Mr. Shumway to provide an adequate report in compliance with Rule 26(a)(2)(B) has already led to extensions of deadlines and expense of Court resources to address motions related to the report.[35] The Court has little difficulty in recognizing the possibility of yet more extensions of time, delays, and expense of Court resources, if Mr. Shumway is allowed to proceed with the understanding that his report will be supplemented only at trial.

         At this point the Court does not find that either Plaintiffs or Mr. Shumway acted in bad faith or willfully exercised non-compliance with Rule 26(a)(2)(B). Additionally, although the Court is concerned with Plaintiffs' response to the motion, suggesting that Mr. Shumway's report need not comply with Rule 26(a)(2)(B), it is not at this point prepared to find that the inadequate response was made in bad faith.

         To summarize, two factors, the potential prejudice to Defendants and the potential for trial disruption, weigh heavily in favor of striking Mr. Shumway's testimony. Although neither Plaintiffs' nor Mr. Shumway's conduct appear to have been willful or in bad faith, and although the Court is certainly mindful that striking what is proposed to be expert testimony is a “drastic sanction, ”[36] the Court is not convinced that the non-compliance will be cured without striking the proposed testimony. Accordingly, the Court grants Defendants' motion to strike Mr. Shumway's report and testimony.[37]

         III. Motion to Compel

         A. ...


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