Cook v. Rockwell International Corp.

233 F.R.D. 598, 2005 U.S. Dist. LEXIS 37882, 2005 WL 3448024
CourtDistrict Court, D. Colorado
DecidedDecember 15, 2005
DocketNo. Civ.A. 90CV181JLK
StatusPublished
Cited by10 cases

This text of 233 F.R.D. 598 (Cook v. Rockwell International Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Rockwell International Corp., 233 F.R.D. 598, 2005 U.S. Dist. LEXIS 37882, 2005 WL 3448024 (D. Colo. 2005).

Opinion

ORDER ON MOTION TO EXCLUDE TESTIMONY OF DR. SHIRLEY FRY

KANE, Senior District Judge.

This matter is before me on Plaintiffs’ motion to exclude the testimony of Dr. Shirley Fry, as set forth in their Motion to Exclude the Testimonies of Fry, Grogan and Voilleque (Docket # 1728), filed December 4, 2005. Having carefully considered the motion with respect to Dr. Fry, the parties’ subsequent briefing on this subject, the relevant record and all applicable legal authorities, and being fully advised in the premises, I rule as follows:

Defendants offer Dr. Fry in rebuttal to the testimony of Plaintiffs’ expert Dr. Steven Wing. In compliance with Federal Rule of Civil Procedure 26 and the deadlines for expert disclosure I ordered in this case, Plaintiffs designated Dr. Wing as an expert in this matter in May, 1995, and provided his expert report to Defendants in November, 1996. Pursuant to Rule 26(a)(2)(C), Defendants were required to identify and provide an expert report for any expert evidence they intended to present to contradict or rebut Dr. Wing’s expert testimony within 30 days of Plaintiffs’ disclosure of Dr. Wing’s expert report. Fed.R.Civ.P. 26(a)(2)(C); see, e.g., Eckelkamp v. Beste, 315 F.3d 863, 872 (8th Cir.2002); Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir.1996) (Posner, J.); Complaint of Kreta Shipping, S.A., 181 F.R.D. 273, 276 (S.D.N.Y.1998). Defendants did not disclose an expert to rebut Dr. Wing’s expert testimony in December, 1996, as required, and did not request any extension of time to do so. Instead, on October 7, 2005, at the start of trial and immediately after I denied Defendants’ Daubert motion to exclude Dr. Wing’s testimony, Defendants for the first time declared their intent to call Dr. Fry as a rebuttal witness to Dr. Wing. Defendants had not identified Dr. Fry as a [600]*600potential witness, expert or otherwise, on any of their previous witness lists.1

Rule 37(c)(1) provides that a party who without substantial justification fails to disclose information required by Rule 26(a) may not present this information as evidence at trial. This sanction is mandatory unless the non-disclosing party shows substantial justification or that the failure to disclose was harmless. See, e.g., Fed.R.Civ.P. 37(c)(1) (Adv. Comm. Note 1993); see Jacobsen v. Deseret Book Co., 287 F.3d 936, 952-53 (10th Cir.2002).2 This rule applies to rebuttal expert testimony that was not disclosed in compliance with Rule 26(a). See, e.g., Finley, 75 F.3d at 1230 (affirming exclusion of rebuttal evidence presented by expert witness because the evidence was not disclosed as required by Rule 26(a)); Congressional Air, Ltd. v. Beech Aircraft Corp., 176 F.R.D. 513, 515-16 (D.Md.1997) (same). Accordingly, unless Defendants had substantial justification for failing to disclose Dr. Fry’s testimony in December, 1996, she may not testify as a expert in rebuttal to Dr. Wing’s properly disclosed expert testimony.3

The only justification offered by Defendants for their failure to disclose Dr. Fry is that Plaintiffs’ inadvertent omission of Dr. Wing from their December, 2003 preliminary witness list led them to believe Dr. Wing would not testify at trial. Any confusion on this score was temporary, however, as Plaintiffs notified Defendants in July, 2004, more than a year before trial, that Dr. Wing was still a potential expert witness in this case. More importantly, Plaintiffs’ final decision on whether to call Dr. Wing at trial has nothing to do with the timing of Defendants’ obligation under the Federal Rules to provide disclosure of any expert testimony in rebuttal to Dr. Wing’s testimony. That obligation was triggered in November, 1996 when Plaintiffs disclosed Dr. Wing’s intended expert testimony, and required Defendants to disclose any expert evidence to contradict or rebut Dr. Wing’s expert testimony 30 days later, in December, 1996.4

Defendants argue I ruled that Dr. Fry could testify in rebuttal to Dr. Wing based on statements I made on October 7, 2005, immediately after Defendants for the first time stated their intent to call Dr. Fry as a rebuttal witness. Plaintiffs had had no discovery at that time regarding Dr. Fry and the scope of her intended testimony. Although Dr. Fry has not submitted an expert report, she was deposed by Plaintiffs on December 7. I now make my final ruling based on this more complete record.

Under this record, I hold that Dr. Fry may not present expert testimony in this case, in rebuttal to Dr. Wing or otherwise, because Defendants failed to comply with the expert disclosure requirements set out above and that failure was not substantially justified or harmless.

[601]*601That brings me to Defendants’ final argument, which is that Dr. Fry’s intended rebuttal testimony is not expert testimony at all and thus is not subject to these disclosure requirements, or, for that matter, the reliability requirements for expert testimony set forth in Fed.R.Evid. 702. Defendants assert this is so because Dr. Fry has personal knowledge of Dr. Wing and “of the field of epidemiology at DOE” as a result of her years of experience as a DOE epidemiologist. See Defs.’ Resp. (Docket # 1745) at 4; Defs.’ Resp. to Pis.’ Supp. (Docket # 1823) at 2. As a consequence, Defendants argue, Dr. Fry “can factually testify as to the work with which she is familiar” at DOE as a lay witness under Fed.R.Evid. 701. See Defs’ Resp. (# 1745) at 4.

Defendants assert they will question Dr. Fry regarding two specific areas of which she has personal knowledge: (1) “attempts to influence or limit epidemiological studies of workers at DOE nuclear facilities, including [Dr. Wing’s] own mortality study of Oak Ridge workers; and (2) the structure of the DOE radiation epidemiology program and the studies conducted under that program.” Defs’ Resp. to Pis’ Supp. (Docket # 1823) at 1. Defendants have stated that Dr. Fry’s testimony on these subjects is intended to rebut Dr. Wing’s testimony suggesting “that the DOE epidemiological studies were not credible, were inadequate and that the DOE’s purported ‘conflict of interest’ affected that science.” Defs’ Resp. (Docket # 1745) at 4.

An expert witness is “a witness qualified as an expert by knowledge, skill, experience, training or education” whose “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R.Evid. 702. By definition, therefore, an expert witness has personal knowledge of their field and of the matters on which they are to testify, or they would not be qualified to testify as an expert. As a result, that Dr.

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233 F.R.D. 598, 2005 U.S. Dist. LEXIS 37882, 2005 WL 3448024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-rockwell-international-corp-cod-2005.