United States District Court, D. Nebraska
JEREMY J. WONCH, Plaintiff,
DEREK K. MEYER, AND Individually; and NAVAJO EXPRESS, INC., a Colorado Corporation; Defendants.
CHERYL R. ZWART, UNITED STATES MAGISTRATE JUDGE
Plaintiff’s complaint alleges Defendant Derek K. Meyer, while operating a tractor and semi-trailer for his employer, Defendant Navajo Express, Inc., negligently rear-ended Plaintiff’s vehicle, causing injuries and damages. On February 13, 2015, the court entered a progression order which set a deadline of May 15, 2015 for disclosing Plaintiff’s expert reports. (Filing No. 37).
Plaintiff timely disclosed his medical experts on May 13, 2015. (Filing No. 44). Plaintiff’s expert disclosure further stated:
Plaintiff may also designate an accident reconstructionist - depending on further discovery - primarily the deposition of Defendant Meyer. Plaintiff and Defendant have agreed to continue expert deadlines to accommodate the additional needed discovery.
(Filing No. 44).
At the parties’ request, the court entered an amended progression order. As stated in the parties’ motion, (Filing No. 77), extending Defendant’s expert disclosure deadline and the deadline for disclosing Plaintiff’s rebuttal expert (if any), was necessary “due to delay in receiving medical records from Plaintiff’s medical providers.” The court continued the expert disclosure deadlines as follows:
For the defendants: November 30, 2015.
For the plaintiff’s rebuttal: December 15, 2015,
(Filing No. 82).
Defendants timely disclosed their retained medical expert, Ian Donald Crabb, M. D. Based on his report, Dr. Crabb opines that Plaintiff’s knee and back injuries arise from pre-existing degenerative disease processes. Dr. Crabb’s report states, “It is not apparent that the patient suffered any material injury to his right knee at the time of the motor vehicle accident, ” and if the plaintiff “should go on to develop arthritic changes in the cervical spine necessitating surgical intervention, it would be far more related to the natural progression of the underlying degenerative disease than the motor vehicle accident at this point.” (Filing No. 87-1). The report mentions nothing about how the accident happened.
The Plaintiff served the expert report of David Hall, a traffic consultant, on December 14, 2015. (Filing No. 83-1). Mr. Hall’s report states that at the time of the accident, Defendant Meyer “should have been driving much slower than 35 mph, ” “Mr. Wonch was not in the middle of the travel lane when he was struck by Mr. Meyer, ” “it is more likely than not that [Meyer’s] braking system was not correctly adjusted, ” Meyer was violating Nebraska state law and sections of the Nebraska Commercial Driver License Manual, and “Meyer exhibited conscious indifference and was the cause of the subject accident because he drove at 35 mph into a dust cloud with near zero visibility when he knew there were potential obstacles in front of him and he would not be able to stop before impacting an obstacle such as Mr. Wonch’s pickup.” (Filing No. 83-1, at CM/ECF pp. 2-3).
Mr. Hall’s expert opinion does not respond in any way to the opinions of Defendant’s medical expert, Dr. Crabb. Plaintiff’s deadline for disclosing experts, including an accident reconstruction expert, was May 15, 2015. And based on the parties’ representations to the court in their joint motion, the court continued Defendant’s deadline for disclosing an expert due to the delay in receiving Plaintiff’s medical records.
Federal Rule of Civil Procedure 26(a)(2)(D)(ii) defines rebuttal experts as those experts presenting “evidence that is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2) (B) or (C).” Fed.R.Civ.P. 26(a)(2)(D)(ii).
Rebuttal expert testimony must relate to and rebut evidence or testimony on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C). Such evidence is not tied to any particular witness; it is tied to whether the party with the affirmative burden has presented evidence and/or testimony from a duly disclosed expert on ...