United States District Court, D. Kansas
DEBRA G. HOPKINS, et al., Plaintiffs,
BOARD OF COUNTY COMMISSIONERS OF WILSON COUNTY, KANSAS, et al., Defendants.
MEMORANDUM AND ORDER
J. James U.S. Magistrate Judge.
order follows the November 6, 2017 Memorandum and Order to
Show Cause entered by Magistrate Judge Gerald L. Rushfelt
(ECF No. 149) regarding Plaintiffs' designation of expert
witnesses and discussing Plaintiffs' Motion to Modify the
Scheduling Order (ECF No. 144). In the order, Judge Rushfelt
revisited his earlier rulings that rejected Plaintiffs'
expert disclosures of Drs. Paul Kurth and Erik Mitchell and
invited the parties to respond to his proposed future
rulings. Several Defendants filed responses,  all of which urge
the court to leave intact prior rulings regarding
Plaintiffs' expert witnesses. Advanced Correctional
Healthcare, Inc. (“ACH”) alone argues that if the
court finds sufficient one or both of Plaintiffs' expert
witness designations, the current Scheduling Order deadlines
should be amended.
Court need not repeat the history summarized in Judge
Rushfelt's November 6, 2017 Memorandum and Order to Show
Cause. Two issues are ripe for consideration: (1)
whether Plaintiffs have complied with the relevant
subparagraph(s) of Federal Rule of Civil Procedure 26(a)(2)
with respect to Dr. Mitchell and Dr. Kurth, or have shown
excusable neglect for not having done so, such that one or
both of the witnesses should not have been stricken nor ruled
inadequate under the rule; and (2) whether the Amended
Scheduling Order should be further amended. The Court
addresses each in turn.
Plaintiffs' Expert Designations
first disclosed the names and addresses of Drs. Kurth and
Mitchell on December 18, 2015. Along with that first
disclosure, Plaintiffs served a copy of Dr. Mitchell's
autopsy report and a copy of Dr. Kurth's letter in which
he sets forth his agreement with Dr. Mitchell that Naomi
Keith died as a direct consequence of chronic alcohol
dependence. Dr. Kurth stated that his opinion was
based on the contents of Dr. Mitchell's autopsy report.
On December 20, 2016, Plaintiffs served on Defendants Dr.
Kurth's fee schedule, curriculum vitae, and a list of
other cases in which Dr. Kurth had served as an expert
witness in the last 11 years.That same day, Plaintiffs also
served on Defendants Dr. Mitchell's curriculum vitae,
list of cases in which he had offered expert testimony, and
fee schedule. Plaintiffs do not represent that they have
produced any additional information or documents pertaining
to either witness since that time.
court order or a stipulation by the parties, Rule 26 requires
disclosure of a written report for any witness who “is
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.”Each such witness's report must contain
(1) a complete statement of all opinions the witness will
express and the basis and reasons for them; (2) the facts or
data the witness considered 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 the last 10 years; (5) a list of all
cases in which the witness has testified as an expert in the
last four years; and (6) a statement of the compensation to
be paid to the witness.
expert witnesses for whom a report is not required, the
disclosure must state the subject matter on which the witness
is expected to present evidence as an expert witness, along
with a summary of the facts and opinions to which the witness
is expected to testify.
Mitchell performed the autopsy on Naomi Keith at the request
of Wilson County and the State of Kansas. As Wilson County
coroner, Dr. Mitchell performed the autopsy pursuant to the
Kansas statute regarding autopsies of persons accused of
crimes who die while in state custody. The autopsy
report was filed with the Clerk of the District Court of
Wilson County on October 15, 2013, as required by the
statute. Plaintiffs assert they have never engaged or
retained Dr. Mitchell as an expert witness, and no evidence
Court concludes that Dr. Mitchell is not a witness who must
provide a report pursuant to Rule 26(a)(2)(B). He has not
been retained by Plaintiffs, nor is he an employee of
Plaintiffs. Accordingly, his disclosure need only satisfy
Rule 26(a)(2)(C). Plaintiffs have complied with Rule
26(a)(2)(C) by stating the subject matter on which Dr.
Mitchell is expected to testify (Naomi Keith's cause of
death) and a summary of the facts and opinions to which Dr.
Mitchell is expected to testify (as set forth in the autopsy
report). Because Plaintiffs' original designation of Dr.
Mitchell is adequate, the Court modifies its prior orders to
the extent they struck the designation or otherwise ruled it
Court finds the facts of this case of particular importance
in determining whether Plaintiffs have complied with Rule
26(a)(2) with respect to Dr. Mitchell. His examination of
Naomi Keith occurred only after her death; he did not treat
her as a patient nor examine her for the purpose of providing
an opinion about a medical condition. The examination Dr.
Mitchell performed and which forms the basis of his opinion
was a matter of routine practice in the course of his duties
as Wilson County coroner. Moreover, his post-mortem
examination was conducted at the behest of Wilson County, a
Defendant in this case, who undoubtedly knew of Dr.
Mitchell's actions and opinions before Plaintiffs learned
Court does not find compelling Third-Party Defendant
ACH's protestations of prejudice that it was originally
unable to contact Dr. Mitchell directly to get the documents
he prepared and/or reviewed. It appears the only additional
documents ACH obtained from Dr. Mitchell are pathology
slides, and it received those on March 7, 2017. The autopsy
report was available to ACH when filed with the Clerk of the
District Court of Wilson County. ACH is therefore not at a
disadvantage for information vis-à-vis Plaintiffs, nor
has it suffered prejudice from Plaintiffs' disclosure.