Marek v. Moore

171 F.R.D. 298, 1997 WL 58568
CourtDistrict Court, D. Kansas
DecidedFebruary 10, 1997
DocketCivil Action No. 95-2294-GTV
StatusPublished
Cited by11 cases

This text of 171 F.R.D. 298 (Marek v. Moore) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marek v. Moore, 171 F.R.D. 298, 1997 WL 58568 (D. Kan. 1997).

Opinion

[299]*299 MEMORANDUM AND ORDER

RUSHFELT, United States Magistrate Judge.

The Court has before it a Motion to Strike Plaintiffs’ Expert Witness Maynard L. Bra-zeal (doc. 78). As grounds for the motion defendant suggests that Mr. Brazeal neither prepared nor signed his written report, as required by Fed.R.Civ.P. 26(a)(2). Plaintiffs dispute this factually and oppose the motion. Because defendant seeks to strike the designation of the expert witness, the court considers the motion as one for sanctions, pursuant to Fed.R.Civ.P. 37(c).

The development of the report of Mr. Bra-zeal illustrates a recurring question as to the correlative roles of counsel and the expert witness in preparing a report. Fed.R.Civ.P. 26(a)(2)(B) contains a general requirement that the disclosure of a specially retained expert “be accompanied by a written report prepared and signed by the witness.” In this case plaintiffs concede that, “Brazeal did prepare the subject reports with the assistance of counsel.” Plaintiffs Reply to Defendants Motion to Strike Testimony of Maynard Brazeal at 3 (doc. 83) (underscoring added).

The parties and the testimony and affidavit of the expert reveal the following facts: Mr. Brazeal prepared and submitted to the attorney for plaintiffs a report dated September 3, 1996. It set forth his expert opinions, as required by Rule 26(a)(2). Later that day Mr. Brazeal and the attorney discussed the report by telephone. During that discussion the witness authorized a number of changes to his report. Anticipating the deadline of September 6,1996, for the disclosure, counsel for plaintiffs then caused the report to be retyped by his own staff, ostensibly on the letterhead of the witness. Counsel then sent to the defense attorney this unsigned revision, also dated September 3,1996. It incorporated the changes authorized by the expert.

Defendant discovered these facts at the deposition of Mr. Brazeal on December 13, 1996. The witness had signed neither his original nor the revised report. He specifically inquired whether he should sign the original, after defense counsel discovered it in the material Brazeal had brought to the deposition. Defense counsel replied no. The witness testified he had prepared the original version, but not the revision. Defense counsel then elected to terminate the deposition and file the present motion. By affidavit Brazeal has stated, “On December 13,1996,1 was willing to sign both (reports), and in fact started to sign (the original) during the deposition.” The original does bear the beginning of his signature.

The motion raises this question: Should the designation of Maynard L. Brazeal as expert witness be stricken upon the grounds that his report, as submitted to defendant, was neither prepared nor signed by him, as required by Fed.R.Civ.P. 26(a)(2)(B)? The rule itself does not provide an answer. Defendant has provided the court with no authority whatsoever in support of the motion.

Rule 37(c) governs the question before the court:

(1) A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions____

The court will first address the absence of a signature to the report. To determine whether the designation of the expert should be stricken, as defendant requests, the court finds the deficiency harmless within the meaning of Rule 37(e)(1). Defendant obviously proceeded to deposition upon the assumption the witness was subscribing to the content of the report, even though it was unsigned. This'assumption has proved to be accurate. Mr. Brazeal has vouched for the content of the revised report as his own, notwithstanding it was typed in the offices of counsel after their phone conversation. The witness has agreed to sign both versions. He states he was ready to do so at his deposition on December 13. Plaintiffs can readily cure the deficiency. The court will [300]*300order them to do so. It will also order sanctions, as hereinafter described, for failure to have it timely signed. Absent some prejudice to defendant, which has not been shown and which the court does not find, it declines to impose the extreme sanction of striking the designation for lack of signature.

The more difficult question relates to the two versions of the report, the second of which was prepared with the assistance of counsel and timely provided to defendant, albeit without signature. Does the involvement of the attorney in its preparation preclude it from qualifying as a report “prepared ... by the witness,” within the meaning of Rule 26(a)(2)(B), and particularly when the witness has testified he himself did not “prepare” it. In determining this question, the court has compared the two versions of the report. A number of the differences are simply grammatical or stylistic: the insertion and deletion of commas, quotation marks, or a preposition; the addition of the first name of the decedent; and inclusion of a professional title of the witness under a space for his signature. These changes do not alter the substance of the report.

Other changes require closer scrutiny: The second version of the report includes additional description of material reviewed by the expert, such as “voluminous portions of the discovery record,” depositions of three identified persons, personnel files, and “numerous exhibits.” The first version expresses the opinion that defendant applied a choke hold and excessive weight to the decedent. The second version revises the opinion to state defendant applied either or both. The first version states that anyone trained in unarmed defense should recognize when someone is unconscious from lack of oxygen. The second version adds the duty to recognize when someone “is not resisting force in a manner to cause imminent harm.” The first version says that the conduct of Moore “may have” led to the physical confrontation in question. The second says his conduct “probably” led to it. The first version expresses the concern of the expert if the testimonies of “some of the witnesses” are accurate. The second conditions his concern upon the testimonies of “the students and/or McGinnis.”

These differences aside, the two versions of the report are'substantively alike. The second expresses the same final opinion as the first, with the addition of two commas: “In my opinion, Bobby Moore’s response was based more upon emotion, rather than sound tactics with grievous results.” The first paragraph in each version itemizes the material reviewed by the expert. The second and third paragraphs contain no differences of consequence. The remaining paragraphs contain the changes herein mentioned. The substance of the expert opinions and conclusions, as well as their underlying bases and reasons, remain in the second version of the report essentially the same as in the first.

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Cite This Page — Counsel Stack

Bluebook (online)
171 F.R.D. 298, 1997 WL 58568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marek-v-moore-ksd-1997.