United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. James, U.S. Magistrate Judge.
matter is before the Court on Plaintiff's Motion to
Modify the Scheduling Order to Disclose Expert Witnesses Out
of Time (ECF No. 36). In its motion, Plaintiff seeks leave to
disclose Jeffrey D. Perry, CPA as a witness to present
evidence under Federal Rules of Evidence 702, 703, or 705,
and to concomitantly allow disclosure of Mr. Perry's
report. Defendant opposes the motion. For the reasons set
forth below, the Court denies the motion, directs Plaintiff
to produce Mr. Perry for deposition, and re-sets the Final
Pretrial Conference and the parties' deadline to submit
their proposed pretrial order.
Amended Scheduling Order, which the Court amended at the
parties' joint request during an April 2, 2019 Status
Conference, calls for the Final Pretrial Conference to be
held on July 18, 2019, contains a dispositive motions
deadline of August 16, 2019, and defers setting a trial date
until the Final Pretrial Conference. Discovery closed on July
5, 2019, and the parties' deadlines for expert
disclosures have also passed.
parties conducted a mediation on June 27, 2019, which did not
result in a resolution of the case. About a week before the
mediation, Defendant deposed Tania Thompson, McPherson
Hospital's Financial Analyst. In a January 11, 2019
supplemental Rule 26 disclosure, Plaintiff had identified Ms.
Thompson as a person having information regarding the basis
for the Hospital's business income loss, among other
items. During the deposition, Ms. Thompson revealed that
while she had provided information to Travelers for its use
in calculating the Hospital's business income loss, she
had not performed the calculation.
Ms. Thompson's deposition, Plaintiff's counsel
confirmed that Mr. Perry had used Ms. Thompson's data to
calculate the business loss shown on his schedules. Counsel
then notified defense counsel that Travelers may call Mr.
Perry as a witness at trial and offered to make him available
for deposition. Defendant objected, arguing Mr. Perry is an
expert witness and the documents he submitted do not satisfy
the expert witness disclosures. There is no indication
counsel ever discussed whether Mr. Perry's obligations as
an alleged expert witness would fall under Federal Rule of
Civil Procedure 26(a)(2)(B) or 26(a)(2)(C).
effort to ensure Mr. Perry could provide trial testimony,
Plaintiff filed the instant motion.
Scheduling Order may be amended only upon a showing of good
cause. “The ‘good cause' standard
primarily considers the diligence of the party. The party
seeking an extension must show that despite due diligence it
could not have reasonably met the scheduled
deadlines.”A party does not establish good cause by
demonstrating lack of prejudice to the opposing
point during their communications with each other and in
their briefing on this motion, each party asserts Mr. Perry
is an expert witness and that he is not an expert witness.
For Plaintiff, its original position following Ms.
Thompson's deposition was that Mr. Perry is a fact
witness. But in filing this motion, Plaintiff seeks
permission to belatedly disclose Mr. Perry as an expert
witness, even as it states the “position that Mr.
Perry's and Ms. Thompson's calculations of business
lost profits is not expert opinion.”
Defendant, its initial position was that Mr. Perry is an
undesignated expert for whom Plaintiff made no
disclosures. Yet in its response to Plaintiff's
motion, Defendant asserts Mr. Perry's calculations
“should not be the subject of expert testimony”
and he is “just a fact witness.” Later, Defendant
seems to have no objection to Plaintiff identifying Mr. Perry
as an expert witness and considering the schedules Plaintiff
produced in its Rule 26 initial disclosures to be his
inserting the specter of an expert witness, the parties have
lost sight of the fundamental issue. Neither side has
addressed the testimony Mr. Perry might offer, i.e.
whether his testimony would be admissible under Federal Rule
of Evidence 701 or 702. “[T]he distinction between lay
and expert witness testimony is that lay testimony
‘results from a process of reasoning familiar in
everyday life,' while expert testimony ‘results
from a process of reasoning that can be mastered only by
specialists in the field.'” At this
point, it appears Mr. Perry would testify how he used the
Hospital's figures to calculate its business loss. Such
testimony would likely be lay testimony. If, however,
Mr. Perry would offer testimony that constitutes
“scientific, technical, or other specialized knowledge,
” he would have to be qualified to offer
expert testimony. And “[c]ertainly it is possible for
the same witness to provide both lay and expert testimony in
a single case.”
context of the standards governing Rules 701 and 702, the
Court is not persuaded that Mr. Perry will offer opinions
that rely on scientific or other specialized expertise.
Accordingly, Plaintiff will have no need for an extension of
time to designate him as such. The more fundamental issue,
however, is that Plaintiff produced the Travelers Business
Income Loss Schedules on December 11, 2018, as part of its
initial disclosures. Although the copies apparently were
redacted in part with unredacted versions produced on March
1, 2019, both versions of every schedule clearly displayed
the notation “Prepared by Jeffrey D. Perry, CPA.”
Plaintiff has made no attempt to hide Mr. Perry. And while
the Court understands that Defendant expected to learn more