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Beadle v. City of Omaha

United States District Court, D. Nebraska

July 18, 2019

LUCINDA BEADLE, Personal Representative of the Estate of Daniel A. Elrod, Deceased; Plaintiff,
v.
THE CITY OF OMAHA, a political subdivision of the State of Nebraska; TODD SCHMADERER, only in his official capacity as City of Omaha Chief of Police; ALVIN LUGOD, Former Officer, only in his official position as an Omaha Police Officer and Agent of the City of Omaha; and DOES 1 THROUGH 25, inclusive; Defendants.

          ORDER

          Cheryl R. Zwart United States Magistrate Judge

         This matter is before the court on Defendant's Motion to Exclude Plaintiff's Expert Witnesses (Filing No. 46). For the reasons stated below, the motion will be granted.

         FACTUAL BACKGROUND[1]

         This is an action brought pursuant to 42 U.S.C. § 1983 for an alleged depravation and violation of civil rights, as guaranteed by the United States Constitution.

         On November 29, 2018, the court entered a progression order (Filing No. 39) which set forth deadlines for discovery and trial progression. As relevant to the instant matter, the deadline for Plaintiff Lucinda Beadle, Personal Representative of the Estate of Daniel A. Elrod (“Beadle”), to identify expert witnesses expected to testify at trial was set for March 1, 2019, with complete expert disclosures due by April 1, 2019.

         On March 1, 2019, Plaintiff identified Dr. Michael Lyman as an expert witness. (Filing No. 43). Defendant City of Omaha subsequently served discovery requests on Plaintiff on March 27, 2019, seeking requests for production of documents related to Plaintiff's identification of Dr. Lyman as an expert witness. (Filing No. 45). Plaintiff did not respond to this request by the responsive deadline of April 26, 2019, or otherwise seek an extension of the deadline. Plaintiff also failed to serve expert witness disclosures on or before April 1, 2019 deadline set forth in this court's progression order (Filing No. 39), and pursuant to Fed.R.Civ.P. (26)(a)(2)(B)-(C).

         Subsequently, on April 30, 2019, Defendant's counsel sent an email to Brian Jorde, counsel for Plaintiff, to inquire about the status of the expert witness disclosures and requests for production. (Filing No. 48-3). A week later, Mr. Jorde responded with a request to “briefly discuss” the matter by phone. (Filing No. 48-1). The next day the two attorneys spoke, at which point Mr. Jorde informed Plaintiff's counsel that no expert witness disclosures would be forthcoming. (Id.)

         On June 28, 2019, the deadline to file motions to exclude expert opinion testimony, “out of an abundance of caution” Defendant filed the motion that is the subject of the instant matter. (Filing No. 47, at CM/ECF p. 5). Defendant moves that “Plaintiff must be barred from offering any expert witness opinion testimony on a motion, at a hearing, or at trial, pursuant to Fed.R.Civ.P. 37(c)(1).” (Id.) Plaintiff has filed no response in opposition to Defendant's motion, but advised the court on July 16, 2019 that he does not intend to oppose the motion. However, a discussion ensued on how to handle any expert opinions provided on cross-examination of Defendant's employees.

         ANALYSIS

         The Federal Rules require parties to provide expert witness disclosures for each expert witness retained or specially employed. Such reports are required to contain

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous ...

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