United States District Court, D. Nebraska
LUCINDA BEADLE, Personal Representative of the Estate of Daniel A. Elrod, Deceased; Plaintiff,
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.
R. Zwart United States Magistrate Judge
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
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.
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.
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).
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.
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
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