United States District Court, D. Maryland
TAWANDA JONES, et al. Plaintiffs,
NICHOLAS DAVID CHAPMAN, et al., Defendants.
Lipton Hollander United States District Judge
case arises from the death of Tyrone West while in police
custody. Tawanda Jones, as Personal Representative of the
Estate of Tyrone West; Nashay West; Tyrone West, Jr.; and
Mary Agers, as Guardian and next friend of T.W., a minor,
filed various claims against a host of defendants, including
a claim under 42 U.S.C. § 1983 for the use of excessive
force. This Memorandum concerns plaintiffs' designation
of Tyrone Powers, Ph.D. as an expert on “Use of Force
and Police Practices and Procedures” and the conduct of
“all Defendant Officers” (ECF 105-3 at 2), as
well as the subsequent submission of Dr. Powers's report.
See ECF 105-8.
January 20, 2017, some of the defendants, including Baltimore
City Police Officers Nicholas David Chapman; Jorge Omar
Bernardez-Ruiz; Matthew Rea Cioffi; Eric Maurice Hinton; Alex
Ryan Hashagen; Danielle Angela Lewis; Derrick Dewayne
Beasley; and Latreese Nicole Lee (collectively, “BPD
Officers”), filed a “Motion to Strike
Plaintiff's [sic] Designation of Tyrone Powers as an
Expert Witness”, supported by a memorandum of law (ECF
105-1) (collectively, “Motion to Strike”) and
several exhibits. ECF105-2 to ECF 105-8. In sum, they argued
that the content of the designation failed to comply with
Fed.R.Civ.P. 26(a)(2)(B) and that the submission of the
expert report was untimely. Plaintiffs opposed the Motion to
Strike (ECF 116), supported by a memorandum of law (ECF
116-1) (collectively, “Opposition”) and two
exhibits. ECF 116-2; ECF 116-3. The BPD Officers replied. ECF
Order of March 7, 2017 (ECF 130), United States Magistrate
Judge Stephanie Gallagher granted the BPD Officers'
Motion to Strike (ECF 105). She ruled: “Dr.
Powers's report and proposed testimony is stricken as it
pertains to the [BPD Officer] Defendants.” ECF 130 at
5. Plaintiffs moved for reconsideration. ECF 131. The BPD
Officer opposed the motion. ECF 142. By Order of April 12,
2017 (ECF 143), Judge Gallagher denied plaintiffs' motion
April 25, 2017, plaintiffs filed a “Motion To Set Aside
Magistrate Judge Stephanie A. Gallagher's Order of March
7, 2017, Pursuant to Fed.R.Civ.P. 72(a) And 28. U.S.C. [sic]
636(b)(1)(A).” ECF 153 (“Objection”). The
BPD Officers oppose the Objection (ECF 163), for the reasons
previously set forth in their Motion to Strike (ECF 105),
their reply to the Motion to Strike (ECF 129), and their
opposition to plaintiffs' motion to reconsider. ECF 142.
hearing is necessary to resolve the Objection. See
Local Rule 105.6. For the reasons that follow, I shall deny
Court entered a Scheduling Order on February 11, 2016. ECF
54. According to that Order, plaintiffs' Rule 26(a)(2)
expert disclosures were due on May 27, 2016, and
defendants' expert disclosures were due on June 21, 2016.
Id. I set August 8, 2016, as the deadline for
discovery. Id. And, I set a deadline of September 7,
2016, for dispositive motions. Id.
27, 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' [sic] individual and collective use of
force; and/or, whether the Defendant Officers' actions
comported with proper police practices and
procedures[.]” See ECF 105-3 (“Expert
Designation Letter”), at 2. Plaintiffs provided a
curriculum vitae and a preliminary report for Dr. Manion, but
only a curriculum vitae for Dr. Powers. ECF 105-3. Plaintiffs
did not provide any information as to what opinions Dr.
Powers would offer. Instead, plaintiffs expressly reserved
the right to supplement and amend their expert witness
designations at the conclusion of discovery. Id. at
3. 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. at 2.
7, 2016, the parties filed a joint motion to extend the
discovery deadline by 90 days. ECF 63. A few days later, on
July 11, 2016, I held a conference call with counsel to
discuss the joint motion. ECF 64. By Order of the same date
(ECF 65), I extended the discovery deadline through August
Court issued another Order on October 14, 2016. ECF 90. Among
other things, I extended until November 30, 2016, the
deadline for defendants' summary judgment motion. I also
allowed plaintiffs an extended time to respond, until January
9, 2017. Id. The reply was due in the ordinary
course. Id. Notably, I also set a trial date of July
10, 2017. Id.
P.M. on Friday, November 18, 2016, well after the deadline
for discovery had expired, the BPD Officer Defendants filed a
motion to extend the time to submit their motion for summary
judgment, because of difficulties in obtaining the deposition
of a critical eyewitness, Corinthia Servance. ECF 93. These
difficulties arose during the discovery period.
Id. By Order of November 22, 2016 (ECF 94), I
extended the discovery deadline to December 20, 2016.
Id. And, I extended until January 3, 2017, the
deadline for summary judgment motions. Id. In the
Order, I emphasized the “tight schedule in this
case” and the need to avoid “jeopardizing the
trial date.” Id. at 3.
on December 19, 2016, one day before the extended discovery
deadline, plaintiffs disclosed Dr. Powers's Rule
26(a)(2)(B) report to defendants. See ECF 105-8. The
report is docketed at ECF 106-17. The report states that its
“purpose” is “to provide an Analysis and
Assessment of Liability; and to evaluate procedures utilized
by Officer Nicholas David Chapman, et. al. and their contact
with contact Tyrone West on July 18, 2013.”
Id. at 2. Dr. Powers concluded in the report that
the force deployed against Mr. West “was unjustified,
unconstitutional and excessive and not consistent with police
standards, practices and policies.” Id. at 43.
Officers filed the Motion to Strike on January 20, 2017. ECF
105. They argued that although plaintiffs' Expert
Designation Letter of May 27, 2016, identified Dr. Powers as
an expert witness, it failed to comply with the substantive
requirements of Fed.R.Civ.P. 26(a)(2)(B)(i), (ii), and (iii),
discussed infra. ECF 105-1 at 4. According to the
BPD Officers, plaintiffs neither asked the Court for an
extension nor raised the issue of Dr. Powers's
outstanding report during subsequent discovery disputes.
Id. Ultimately, plaintiffs produced Dr. Powers's
report nearly seven months late, without explanation.
addition, the BPD Defendants complained that the Expert
Designation Letter contained “boilerplate
language” that did not reveal the nature of Dr.
Powers's opinion. Id. at 3. And, the BPD
Defendants maintained that plaintiffs' “eleventh
hour” submission of the substantive information
required under Fed.R.Civ.P. 26(a)(2)(B) unfairly deprived
them of the opportunity to depose Dr. Powers and to request
additional discovery materials in response to Dr.
Powers's report. ECF 129 at 2; see also ECF
105-1 at 4.
their Opposition, plaintiffs characterize Dr. Powers's
report as a “supplement” to their timely initial
expert disclosure. ECF 116-1 at 4-5. Plaintiffs aver that
their earlier Expert Designation Letter made clear that Dr.
Powers's report would be provided “upon completion
of his review of all discovery disclosed to Plaintiffs by all
Defendants in this action.” Id. at 4.
Plaintiffs blame the Morgan State University
(“MSU”) Defendants' “delayed
[discovery] responses… [for] prevent[ing] Dr. Powers
from completing his expert reports.” Id. But,
plaintiffs did not provide any additional detail regarding
the particular discovery responses from MSU that they claim
were delayed but necessary for Dr. Powers to complete his
report. Plaintiffs also argued that any surprise to the BPD
Officers could be cured because they “ha[d] ample time
to depose Dr. Powers as the parties are approximately 5
months from trial.” Id. at 7.
their Reply (ECF 129), the BPD Officers explained that they
did not object to the delayed report sooner because
plaintiffs' initial disclosure “said virtually
nothing of substance….” Id. at 2.
Accordingly, “[u]ntil the December 19, 2016 supplement
there was nothing for Defendants to object to.”
Id. at 3.
noted, by Order of March 7, 2017 (ECF 130), Judge Gallagher
granted the BPD Officers' Motion to Strike (ECF 105). In
reaching her decision to grant the Motion to Strike (ECF
105), Judge Gallagher first determined that “Dr.
Powers's report does not qualify as a proper
'supplement' to an earlier report, but rather an