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Shultz v. Abe's Trash Service, Inc.

United States District Court, D. Nebraska

April 23, 2018

VANESSA SHULTZ, Plaintiff,
v.
ABE'S TRASH SERVICE, INC., and CHRISTOPHER F. SKINNER, Defendants.

          MEMORANDUM AND ORDER

          Robert F. Rossiter, Jr. United States District Judge

         This matter is before the Court on defendants Abe's Trash Service, Inc. (“Abe's”) and Christopher F. Skinner's (“Skinner” and collectively, “defendants”) Motion to Exclude Plaintiff's Expert Testimony (Filing No. 96). For the reasons stated below, the motion is granted in part and denied in part, and the testimony of Jennifer Beran (“Beran”), PT, DPT, and (2) Pramila Kalaga (“Kalaga”), MS, CPE, is excluded. Johnathan Perry (“Perry”), MD, is allowed to testify only as a fact witness. See Fed. R. Evid. 701.

         I. BACKGROUND

         On April 6, 2016, plaintiff Vanessa Shultz's (“Shultz”) and Skinner's vehicles collided near the intersection of Nebraska Highway 36 and 264th Street in Douglas County, Nebraska. Skinner was driving an Abe's garbage truck at the time of the accident. Shultz alleges she sustained severe bodily injuries, medical bills, loss of employment, and other damages arising out of the collision.

         This Court's March 16, 2017, Order Setting Final Schedule for Progression of Case (Filing No. 51) required Shultz to disclose expert witnesses by August 3, 2017, and the defendants to disclose expert witnesses by October 3, 2017. See Fed. R. Civ. P. 26(a)(2). The parties were required to disclose expert witnesses necessary for rebuttal of an opposing expert witness by October 31, 2017.

         Shultz made a disclosure (Filing No. 63) on August 3, 2017, listing Perry and other treating medical personnel as witnesses but did not identify Perry as an expert witness.[1] On October 4, 2017, the Court extended (Filing No. 73) the disclosure deadline for the defendants' experts to November 6, 2017, and for any rebuttal experts to November 20, 2017.

         The defendants disclosed (Filing No. 77) two medical experts on November 6, 2017, and scheduled a physical examination of Shultz for December 11, 2017. See Fed. R. Civ. P. 35. According to the defendants, the parties agreed (1) the expert reports from the examination would be due two weeks after the examination and (2) Shultz would have until two weeks after the examination to produce rebuttal expert witnesses and opinions.

         Shultz disclosed (Filing No. 83) Beran and Kalaga as rebuttal experts on November 17, 2017. The disclosure identified Beran as a “PT” and Kalaga as an “MS” and “CPE” but provided no other information besides the fact that each one was a “Rebuttal expert.”

         On January 10, 2018, Shultz disclosed (Filing No. 94) Perry as a treating physician but again failed to describe him as an expert. The disclosure identified Beran and Kalaga and, for the first time, sparingly described the subject matter of their testimony. The disclosure referenced a Functional Capacity Evaluation performed by Beran, [2] an ergonomics report by Kalaga, each of Beran's and Kalaga's curriculum vitae, and a statement from Perry dated May 30, 2017. That same day, Shultz delivered Rebuttal Expert Witness Disclosures to the defendants, which allegedly included a more in-depth description of Beran's and Kalaga's testimony and copies of Beran's and Kalaga's reports but failed to include a copy of Kalaga's addendum to her report.[3]

         On February 14, 2018, the defendants moved (Filing No. 96) to exclude testimony from Perry, Beran, and Kalaga. The defendants argue Beran and Kalaga were untimely disclosed because they are not true rebuttal expert witnesses. Alternatively, the defendants claim their testimony is not relevant, lacks foundation, and will only confuse the jury. The defendants assert Perry was not identified as an expert witness, and his statement does not meet the requirements of Federal Rule of Civil Procedure 26(a)(2)(B) because he did not prepare it.

         Shultz did not respond to the motion but simply filed a Proposed Witness List and Exhibit List (Filing No. 100) on February 28, 2018. Shultz identified Beran and Kalaga as possible rebuttal expert witnesses. Shultz also listed Perry as a witness but did not describe him as an expert.

         II. DISCUSSION

         Parties are required to disclose the identity of any witness they may use at trial as an expert witness. Fed.R.Civ.P. 26(a)(2). Unless “stipulated or ordered by the court, [the] disclosure must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case.” Id. If the witness does not need to provide a written report, the disclosure must state (1) the subject matter on which the witness is expected to present expert testimony and (2) “a summary of the facts or opinions to which the witness is expected to testify.” Id.

         A. ...


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