United States District Court, D. Maryland
Tawanda Jones, et al.
Officer Nicholas David Chapman, et al.;
Stephanie A. Gallagher United States Magistrate Judge
to an order referring this case to me for discovery, [ECF No.
68], I have reviewed the pending Motion to Strike Tyrone
Powers as an Expert Witness, Opposition, and Reply. [ECF Nos.
105, 116, 129]. No hearing is deemed necessary. See
Loc. R. 105.6 (D. Md. 2016). For the reasons set forth below,
the Motion to Strike will be GRANTED.
Tawanda Jones as Personal Representative of the Estate of
Tyrone A. West, Nashay West, Tyrone West, Jr., and Mary Agers
as Guardian and next friend of minor child T.W.
(“Plaintiffs”) filed suit against Baltimore
Police Department Officers Nicholas Chapman, Jorge
Bernardez-Ruiz, Matthew Cioffi, Alex Hashagen, Eric Hinton,
Danielle Lewis, Derrick Beasley, and Latreese Lee
(collectively “BPO Defendants”), as well as
Baltimore Police Department Commissioner Kevin Davis, Morgan
State University Police Chief Lance Hatcher and Morgan State
University Police Officer David Lewis, alleging the
unreasonable seizure, assault, battery, and otherwise
excessive and unwarranted use of force against Tyrone West,
Sr. resulting in Mr. West's death. See Compl.,
[ECF No. 2].
Court first entered a Scheduling Order on February 11, 2016.
See [ECF No. 54]. According to that Order,
Plaintiffs' 26(a)(2) expert disclosures were due on May
27, 2016, and Defendants' expert disclosures were due on
June 21, 2016. Id. On May 23, 2016, Plaintiffs
timely named two expert witnesses: 1) Dr. William L. Manion,
M.D., Ph.D., JD, MBA, to testify regarding “Mr.
West's cause and manner of death[, ]” and 2) Dr.
Tyrone Powers, Ph.D., to testify “as to the conduct of
all Defendant Officers regarding each officers'
individual and collective use of force and/or, whether the
Defendant Officers' actions comported with proper police
practices and procedures[.]” See [ECF No.
105-3]. Plaintiffs provided a curriculum vitae and a
preliminary report for Dr. Manion, but only a curriculum
vitae for Dr. Powers. Id. Plaintiffs expressly
reserved the right to supplement and amend their expert
witness designations at the conclusion of discovery.
Id. In particular, Plaintiffs promised that Dr.
Powers's written report would “be provided upon
completion of his review of all discovery disclosed to
Plaintiffs by all Defendants in this action.”
the original Scheduling Order set a discovery deadline of
August 8, 2016, the Court granted in part the parties'
joint request to extend discovery to August 11, 2016, [ECF
Nos. 63, 65], and subsequently further extended discovery to
December 20, 2016. [ECF No. 94]. On December 19, 2016, one
day before the discovery deadline, Plaintiffs first submitted
Dr. Powers's Rule 26(a)(2)(B) report to Defendants.
See [ECF No. 105-8]. The BPO Defendants filed the
instant motion to strike Dr. Powers's report.
See [ECF No. 105].
must disclose to its adversary the identity of any witness it
plans to call at trial for the presentation of evidence.
Fed.R.Civ.P. 26(a)(2)(A). A witness that is retained solely
to provide expert testimony must prepare and sign a detailed
written report that includes:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them; (ii) the facts or
data considered by the witness in forming them; (iii) any
exhibits that will be used to summarize or support them; (iv)
the witness's qualifications, including a list of all
publications authored in the previous 10 years; (v) a list of
all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). This disclosure must be made
“at the times and in the sequence that the court
orders.” Fed.R.Civ.P. 26(a)(2)(D). Further, “for
an expert whose report must be disclosed under Rule
26(a)(2)(B), the party's duty to supplement extends both
to information included in the report and to information
given during the expert's deposition. Any additions or
changes to this information must be disclosed by the time the
party's pretrial disclosures under Rule 26(a)(3) are
due.” Fed.R.Civ.P. 26(e)(2).
court finds that a party's expert disclosure was
untimely, the court must then determine the appropriate
sanction. Rule 37(c) provides that if a party fails to
disclose a witness pursuant to Rule 26(a) or (e), “the
party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or
harmless.” Fed.R.Civ.P. 37(c)(1). In addition to, or in
place of automatic exclusion, Rule 37(c) also permits the
court to “order payment of the reasonable expenses,
including attorney's fees caused by the failure, inform
the jury of the party's failure, and impose other
appropriate sanctions, including any of the orders listed in
Rule 37(b)(2)(A)(i)-(vi).” Id.