Free Motion to Strike - District Court of Colorado - Colorado

Case 1:04-cv-00074-MSK-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00074-MSK-CBS JIMMY L. STROZIER, Plaintiff, v. UNITED STATES POSTAL SERVICE, JOHN E. POTTER, Postmaster General, Defendants.

DEFENDANTS' MOTION TO STRIKE EXPERT WITNESSES

Defendants John E. Potter and the United States Postal Service, by and through William J. Leone, Acting United States Attorney, and Elizabeth A. Weishaupl, Assistant United States Attorney, hereby submit the following Motion to Strike Expert Witnesses pursuant to Fed. R. Civ. P. 26 and 37 and in support state as follows: 1. In the final pre-trial order Plaintiff identifies three "expert witnesses": Velma Campbell, Melinda Mitchell, LCSW, and Sarah Kelly, MS NP that he expects to render expert opinion in this case. Defendants noted an objection to the expert testimony of these witnesses in the pre-trial order. The basis for the objection is a lack of notice of any opinions by these witnesses and the lack of disclosure of these witnesses in either the scheduling order or in any expert designation. 2. Pursuant to Fed. R. Civ. P. 26(a)(2)(A) Plaintiff was required to disclose the identity of any person "who may be used at trial to present evidence under Rules 702,

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703 or 705 of the Federal Rules of Evidence." Fed. R Civ. P. 26(a)(2)(A). In addition, any party who is "retained or specially employed to provide expert testimony" must provide a report containing a "complete statement of all opinions to be expressed and the basis and the reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of opinions or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or deposition within the preceding four years." Once a person is identified as a possible trial expert, other parties have the right to take that person's deposition. See Fed. R. Civ. P. 26(b)(4)(A) ("A party may depose any person who has been identified as an expert whose opinions may be presented at trial."). 3. Until 2000, testimony by "treating" health care providers was not considered expert testimony. See, e.g., Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999). In 2000, Federal Rule of Evidence 701, which defines the line between lay and expert testimony, was amended. This amendment provided that a lay witness may not offer opinions or inferences that are "based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed. R. Evid. 701. Thus, if a witness testifies "based on scientific, technical, or other specialized knowledge," the witness is presenting expert testimony. See Fed. R. Evid. 701, Adv. Comm. Notes to 2000 Amdts. ("the distinction between lay and expert witness testimony is that lay testimony results from a process of reasoning familiar in ordinary life, while expert testimony results from a 2

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process of reasoning which can be mastered only by specialists in the field.") (internal quotations marks omitted) 4. In section 7(D)(1) of the Scheduling Order, which section concerned expert testimony, Plaintiff designated Dr. Michael Hines as his sole expert. See Scheduling Order section 7(D)(1) "Plaintiff's Experts." The Plaintiff did not designate any of the three witnesses identified in the pre-trial order as witnesses who will be called to render expert opinion.
5. The Scheduling Order also provided that "[t]he Plaintiff shall designate all experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2)(B) on or before August 30, 2004." Plaintiff did not provide

any disclosure of any opinion testimony by any witness as contemplated by Fed. R. Civ. P. 26(a)(2)(B). 6. Although Plaintiff identified Campbell, Mitchell, and Kelly in initial disclosures, he gave no other indication throughout the course of this litigation that he intended to call them as experts. It is believed that Campbell, Mitchell and Kelly are treating physicians of Plaintiff. However, Rule 701, as amended rejects the view that a treating physician is not presenting "expert testimony" when in testifying about the care and treatment of her patient. The treating physician necessarily presents details and opinions about her patient based on her specialized medical knowledge. See Ferris v. Pennsylvania Fed. Bhd. of Maintenance of Way Employees, 151 F. Supp. 2d 736, 745 n.6 (E.D. Pa. 2001). 7. Because, a treating provider's testimony is "expert testimony" under Rule 3

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701, treating providers who may testify at trial must be identified in the expert disclosures required by Rule 26(a)(2)(B). See Hover v. United States, No. 01-C-2372, 2002 WL 1949734, at *6 (N.D. Ill. Aug. 22, 2002) (concluding that "treating physicians who may be called to testify at trial clearly fall within the definition of an expert as that term is used in Rule 26(a)(2)(A) . . . [I]n testifying based on his or her work as a physician, the treater will be calling upon specialized knowledge that can be only provided under Rule 702.") (attached herein as attachment 1). 7. One of the express purposes of the amendment to Rule 701 was to "ensure that a party will not evade the expert witness disclosure requirements set forth in Fed. R. Civ. P. 26 and Fed. R. Crim. P. 16 by simply calling an expert witness in the guise of a lay person." Adv. Comm. Notes to 2000 Amdts. 8. Allowing Plaintiff to call these witnesses to render expert opinion in this matter would violate the intent and purpose of Fed. R. Evid. 701, Fed. R. Civ. P. 26(a)(2), and also the clear dictates of the Scheduling Order. The Court should bar these witnesses from providing such testimony based on these violations and the dictates of Fed. R. Civ. P. 37(c)(1). Fed. R. Civ. P. 37(c)(1) provides that "[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) . . . is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed." Fed. R. Civ. P. 37(c)(1). 9. As the Defendant had no notice of any expert opinions to be rendered by

these witnesses, they should be stricken. Upon information and belief Plaintiff intends to call these witnesses to render opinion in the area of reasonable accommodation and 4

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ability to perform essential job functions. These witnesses should not be permitted to render opinion testimony in these areas. See Parker v. Central Kansas Medical Center, No. 02-3099, 57 Fed. Appx. 401, 404 (10th Cir. Feb. 24, 2003, ) (striking portions of affidavit submitted by non- disclosed Rule 26(a)(2)(B) treating physician regarding standard of care, causation.) (attached herein as Attachment 2). 10. Pursuant to D.C.Colo.LCivR 7.1, undersigned counsel conferred with Plaintiff regarding his position on this motion and is authorized to state that he objects to the motion. WHEREFORE, the Defendants respectfully request that the Court strike the listing of Velma Campbell, Melinda Mitchell, LCSW, Sarah Kelly, MS NP, as experts in the pre-trial order, and for such other and further relief as the Court deems just and appropriate.
DATED this __ day of July, 2005. Respectfully submitted, WILLIAM J. LEONE Acting United States Attorney s/ ELIZABETH W EISHAUPL Assistant United States Attorneys 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax No. (303)-454-0404 Email: [email protected]

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on July 6, 2005 I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following email addresses:

None

_____________________________________ _____________________________________ _____________________________________, and I hereby certify that I have mailed or

served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: Jimmy L. Strozier 1467 Illinois Street Leeds, Alabama 35094 s/ Elizabeth A. Weishaupl Elizabeth A. Weishaupl Attorney for Defendant United States Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 E-mail: [email protected]

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