United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge
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.
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.
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.
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. 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.
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.
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.”
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,  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
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.
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.
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.”