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Jones v. Chapman

United States District Court, D. Maryland

March 7, 2017

Tawanda Jones, et al.
Officer Nicholas David Chapman, et al.;

          Stephanie A. Gallagher United States Magistrate Judge

         Dear Counsel:

         Pursuant 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.

         I. Background

         Plaintiffs 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].

         The 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.” Id.

         While 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].

         II. Legal Standard

         A party 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).

         If a 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.

         III. Discussion

         A. ...

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