Free Reply to Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General KELLEY J. MORRISSEY Assistant Attorney General State Bar No. 016158 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA GERALD BYERLY, Plaintiff, v. DEPUTY WARDEN, et al., Defendants. DEFENDANT'S REPLY IN SUPPORT OF MOTION TO STRIKE PLAINTIFF'S SUPPLEMENTAL RULE 26(a)(2) DISCLOSURE AND MOTION TO PRECLUDE THE TESTIMONY OF CHARLES MONTGOMERY No. CV 04-0323-PHX-FJM (GEE)

Defendant Schriro, by and through undersigned counsel, replies in support of her Motion to Strike Plaintiff's Supplemental Rule 26(a)(2) Disclosure and Motion to Preclude the Testimony of Charles Montgomery ("Motion"): Plaintiff argues that the Defendant failed to comply with Rule 7.2(j) of the Rules of Practice of the United States District Court for the District of Arizona and that the Court should, therefore, deny the relief sought by Defendant. Plaintiff's argument lacks merit. The discovery deadline in this matter has passed and the trial date is rapidly approaching. Defendant properly sought the Court's assistance in resolving the issue of the adequacy of the expert report of Plaintiff's expert, Charles Montgomery.

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Plaintiff contends that Defendant's motion to strike Charles Montgomery's expert report and motion to preclude Montgomery's testimony, should be denied because Plaintiff has supplemented Montgomery's expert report by supplying information regarding how much Montgomery is being paid, information regarding publications he has authored in the last ten years, and two pages from the American Correctional Handbook. However, Plaintiff fails to address the key deficiency raised by Defendant's Motion, i.e., that Montgomery's report fails to provide "a complete statement of all opinions to be expressed and the basis and reasons therefor." (Motion at 2.) Rule 26(a)(2)(B), Federal Rules of Civil Procedure requires a complete statement of all opinions that will be expressed at trial and the reasons and basis for the opinion. Reed v. Binder, 165 F.R.D. 424, 428 (D.N.J. 1996) "In simple terminology, this means `how' and `why' the expert reached the conclusions and opinions to be expressed." Id., n.5. Charles Montgomery's expert report fails to do this. In his report, Mr. Montgomery concludes that Plaintiff's conditions of confinement at the Alhambra Reception Center violated Farmer v. Brennan, 511 U.S. 825 (1994) (Affidavit of Charles Montgomery at ¶¶ 35, 36). In order to conclude that a Farmer violation existed, Mr. Montgomery had to conclude that Defendant Schriro acted with deliberate indifference to Plaintiff's safety. Deliberate indifference requires a prison official to have "a state of mind more blameworthy than negligence" and "requires `more than ordinary lack of due care for the prisoner's interests or safety.'" Farmer, 511 U.S. at 835. To conclude that Defendant Schriro acted with deliberate indifference, Mr. Montgomery must have determine that she was both aware of the facts from which the inference could be drawn that a substantial risk of serious harm existed to Plaintiff and she drew the inference. Id. at 837. Mr. Montgomery's report, however, fails to give us the basis for his conclusions. Defendant Schriro is left to

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guess what knowledge or information she purportedly had or what actions she purportedly took or failed to take that would lead Plaintiff's expert to conclude that she acted with deliberate indifference. Rule 37(c)(1) requires that the Court exclude the testimony of Plaintiff's expert unless Plaintiff has a "substantial justification" for his failure to comply with the rules and then only if the failure is "harmless." Plaintiff provides no justification for failing to provide the type of detailed and complete expert report that is required by Rule 26(a)(2)(B). Additionally, Plaintiff's failure to provide a proper report cannot be said to be harmless. The incomplete expert report directly impacts the Defendant's ability to prepare for trial, forces the Defendant to depose Charles Montgomery to obtain information regarding the basis for his conclusions, and impacts the Defendant's ability to adequately prepare for and depose Charles Montgomery. In Jacobsen v. Deseret Book Company, 287 F.3d 936 (10th Cir. 2002), to which Plaintiff cites, the appellate court properly reversed the district court's ruling, concluding that the plaintiff was prejudiced by the district court's decision to allow defendants' experts' incomplete testimony. As noted by the court, an expert report is intended not only to identify the expert witness but also "to set forth the substance of the direct examination." Jacobsen, 287 F.3d at 953, (quoting Fed.R.Civ.P. 26 advisory Committee's note (1993)). Such disclosure is necessary to allow the opposing party "a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses." Id. For the above stated reasons, Defendant's motion to strike Plaintiff's expert report should be granted, and Plaintiff should be precluded from using Charles Montgomery's expert report and testimony as evidence at trial, at any hearing, or on any motion.

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RESPECTFULLY SUBMITTED on this 22nd day of December, 2005. TERRY GODDARD Attorney General

s/Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendant

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ORIGINAL and One copy of the foregoing filed this 22nd day of December, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy of the foregoing has been mailed This 22nd day of December 2005, to: Amanda J. Vaught WATERFALL ECONOMIDIS 5210 E. Williams Cir. Tucson, AZ 85711-4473 Attorney for Plaintiff

s/A. Palumbo Secretary to Kelley J. Morrissey
IDS04-0399/RM#G2004-20952 939639

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