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Hopkins v. Board of County Commissioners of Wilson County

United States District Court, D. Kansas

January 16, 2018

DEBRA G. HOPKINS, et al., Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF WILSON COUNTY, KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER

          Teresa J. James U.S. Magistrate Judge.

         This 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).[1] 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, [2] 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.

         I. Background

         The Court need not repeat the history summarized in Judge Rushfelt's November 6, 2017 Memorandum and Order to Show Cause.[3] 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.

         II. Plaintiffs' Expert Designations

         Plaintiffs 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.[4] 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.[5]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.[6] Plaintiffs do not represent that they have produced any additional information or documents pertaining to either witness since that time.

         Absent 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.”[7]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.

         For 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.[8]

         A. Dr. Mitchell

         Dr. 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.[9] 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 suggests otherwise.[10]

         The 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 inadequate.[11]

         The 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 of them.

         The 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.[12] 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.

         B. ...


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