Greenhaw v. City of Cedar Rapids

255 F.R.D. 484, 2009 U.S. Dist. LEXIS 12079, 2009 WL 393868
CourtDistrict Court, N.D. Iowa
DecidedFebruary 17, 2009
DocketNo. C07-0109
StatusPublished
Cited by5 cases

This text of 255 F.R.D. 484 (Greenhaw v. City of Cedar Rapids) is published on Counsel Stack Legal Research, covering District Court, N.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greenhaw v. City of Cedar Rapids, 255 F.R.D. 484, 2009 U.S. Dist. LEXIS 12079, 2009 WL 393868 (N.D. Iowa 2009).

Opinion

ORDER DENYING MOTION TO STRIKE

JON STUART SCOLES, United States Magistrate Judge.

On the 11th day of February 2009, this matter came on for hearing on the Motion to Strike Proposed Witnesses and Two Proposed Exhibits (docket number 23) filed by the Plaintiff on February 3, 2009. The Plaintiff was represented by her attorney, Gerald J. Kucera. The Defendant was represented by its attorney, Mohammad H. Sheronick.

I. PROCEDURAL HISTORY

On August 31, 2007, Plaintiff Maggie Greenhaw (“Greenhaw”) filed a Petition at Law (docket number 1-4) in the Iowa District Court for Linn County, seeking damages against the City of Cedar Rapids (“the City”) and two police officers for alleged excessive use of force, false imprisonment, intentional infliction of emotional distress, and negligence. The action was removed to the United States District Court for the Northern District of Iowa on October 18, 2007. Pursuant to a stipulation of the parties, the two police officers were dismissed as defendants on September 11, 2008.

On October 24, 2008, the City filed a motion for summary judgment. In an Order filed on January 9, 2009, the Court dismissed Greenhaw’s Section 1983 claim, but denied the City’s request to summarily dismiss her claims of false imprisonment, intentional infliction of emotional distress, and negligence. Trial is scheduled before Chief Judge Linda R. Reade on March 16, 2009.

II. RELEVANT FACTS

The facts underlying the instant motion are generally undisputed. On January 28, 2008, the Court adopted a scheduling order and discovery plan proposed by the parties. Among other things, the Court established deadlines for disclosure of expert witnesses. Upon a joint motion filed by the parties, the deadlines were later extended. Greenhaw was required to disclose her expert witnesses, if any, by June 6, 2008. The deadline for disclosure of expert witnesses by the City was August 6,2008.

On August 6, 2008, the deadline for disclosing its expert witnesses, the City served its designation of expert witnesses, identifying Captain B.A. Walther, Jr. of the Cedar Rapids Police Department.1 The disclosure was not accompanied by a written report, as described in Federal Rule of Civil Procedure 26(a)(2)(B). The City’s designation stated that “Captain Walther’s report will be provided when completed.”2

On January 29, 2009, the City’s attorney faxed a letter to Greenhaw’s attorney, providing its witness and exhibit lists as required by the trial management order. The letter states that “[y]ou should have received Captain Walther’s written report by now.”3 The undated and unsigned six-page report is [486]*486entitled “Review of Events of Sept. 12, 2005.”4 According to the instant motion, the report of Captain Walther was “disclosed for the first time” on January 29, 2009.

Also served on January 29, 2009 was a DVD produced by Captain Walther. Apparently, the DVD was prepared in October 2008 and is intended to depict “a prototypical felony stop.” Additional facts relevant to the discussion will be set forth below.

III. DISCUSSION

A. Expert Testimony of Captain Walther

The disclosure of expert testimony in a civil proceeding is governed by Local Rule 26.b and Federal Rule of Civil Procedure 26(a)(2). Not later than the deadline for disclosing expert witnesses as set forth in the scheduling order and discovery plan, the parties must disclose their expert witnesses “in accordance with the requirements of Federal Rules of Civil Procedure 26(a)(2)(A) and (B).” Local Rule 26.b. In this case, the City disclosed Captain Walther as an expert witness on August 6, 2008, the deadline established in the scheduling order and discovery plan, as required by Rule 26(a)(2)(A). The fighting issues, however, are (1) whether a written report was required under Rule 26(a)(2)(B); and, if so, (2) whether the witness should be prohibited from testifying as a consequence of the City’s failure to “accompany” the disclosure of Captain Walther with his written report.

If an expert witness is “retained or specially employed” to provide expert testimony in a case, or is “one whose duties as the party’s employee regularly involve giving expert testimony,” then the witness’ disclosure must be accompanied by a written report. Fed. R.CrvP. 26(a)(2)(B). In this case, the City argues that Captain Walther was not retained or specially employed as an expert witness, nor do his duties with the Cedar Rapids Police Department regularly involve giving expert testimony.5 Accordingly, it argues that the Rule does not require production of a written report.

The cases are split on the issue of whether a written report must be provided by a party’s employee who does not regularly provide expert testimony. One line of cases holds that a written report is required whenever an expert is designated, adopting the reasoning first expressed by the court in Day v. Consolidated Rail Corp., 1996 WL 257654 (S.D.N.Y.1996). There, the defendant argued that the report requirement of Rule 26(a)(2)(B) was not applicable to one of its expert witnesses, because the witness was an employee whose duties did not regularly involve giving expert testimony. While acknowledging that the language in the Rule could support such a result, the Court nonetheless refused to give the Rule such a meaning.

The principal difficulty with this argument is that even if the quoted language is perhaps susceptible to several alternative interpretations, the reading proposed by defendant would create a distinction seemingly at odds with the evident purpose of promoting full pre-trial disclosure of expert information. The logic of defendant’s position would be to create a category of expert trial witness for whom no written disclosure is required — a result plainly not contemplated by the drafters of the current version of the rules and not justified by any articulable policy.

Id. at *2. Referring to Advisory Committee comments, the Court found “no suggestion that the rule [requiring written reports] applied only to certain trial experts.” Id. Accordingly, while acknowledging that the witness’ duties did not normally involve giving expert testimony, the Court concluded that “he may fairly be viewed as having been ‘retained’ or ‘specially employed’ for that purpose.” Id. at *3.

[487]*487Other courts have reached a similar conclusion. See Lee v. Valdez, 2008 WL 4287730 (N.D.Tex.2008) (asserting that the “exception” found in Rule 26(a)(2)(B) “is limited to ‘experts who are testifying as fact witnesses, although they may also express some expert opinions,’ ” quoting Day); Dyson Technology Ltd. v. Maytag Corp., 241 F.R.D. 247, 249 (D.Del.2007) (finding persuasive the “rationale and decision” reached by the Court in Day)\ Funai Electric Co. v. Daewoo Electronics Corp.,

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Cite This Page — Counsel Stack

Bluebook (online)
255 F.R.D. 484, 2009 U.S. Dist. LEXIS 12079, 2009 WL 393868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenhaw-v-city-of-cedar-rapids-iand-2009.