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Jones v. Chapman

United States District Court, D. Maryland

May 24, 2017

TAWANDA JONES, et al. Plaintiffs,
v.
NICHOLAS DAVID CHAPMAN, et al., Defendants.

          MEMORANDUM

          Ellen Lipton Hollander United States District Judge

         This 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.

         On 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 129.

         By Order of March 7, 2017 (ECF 130), United States Magistrate Judge Stephanie Gallagher granted the BPD Officers' Motion to Strike (ECF 105).[1] 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 for reconsideration.

         On 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.

         No hearing is necessary to resolve the Objection. See Local Rule 105.6. For the reasons that follow, I shall deny the Objection.

         I. Procedural Background

         The 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.

         On May 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.

         On July 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 11, 2016.

         The 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.

         At 5:05 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.[2] 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.[3]

         Then, 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.

         The BPD 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. Id.

         In 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.

         In 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.

         In 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.

         As 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 ...


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