Smith v. Campbell

Filing 104

ORDER DENYING Pet's 95 Motion to Compel as set out. Signed by Senior Judge Callie V. S. Granade on 4/5/2017. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOSEPH CLIFTON SMITH,
Petitioner,
vs.
JEFFERSON S. DUNN,
Commissioner, Alabama
Department of Corrections,
Respondent.

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) CIVIL ACTION NO. 05-00474-CG
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ORDER

This matter is before the Court on a motion to compel an expert disclosure for
Dr. Susan Ford that complies with Rule 26(a)(2) of the Federal Rules of Civil
Procedure filed by Petitioner. (Doc. 95). Respondent filed a response in opposition
(Doc. 98), to which Petitioner replied (Doc. 101). For the reasons set forth herein,
the Court denies Petitioner’s motion.
Rule 26(a)(2) of the Federal Rules of Civil Procedure requires a party to
“disclose to the other parties the identity of any witness it may use at trial to
present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P.
26(a)(2). Federal Rule of Evidence 702, 703, and 705 address expert witness
testimony. Disclosure of any such witness must satisfy the minimum content
criteria of Rule 26(a)(2), unless otherwise ordered by the court. Id.
A witness is qualified as an expert by “knowledge, skill, experience, training,

or education” and may provide opinion testimony if four enumerated criteria are
satisfied. Fed. R. Evid. 702. Conversely, the testimony of a witness is considered
lay witness testimony when it is “(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact
in issue; and (c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.” Fed. R. Evid. 701.
“The Advisory Committee explained that the purpose of the 2000 amendment
that added subsection (c) to Rule 701 was ‘to eliminate the risk that the reliability
requirements set forth in Rule 702 will be evaded through the simple expedient of
proffering an expert in lay witness clothing.’” United States v. Hill, 643 F.3d 807,
841 (11th Cir. 2011) (quoting Fed. R. Evid. 701 Advisory Comm. Notes). Petitioner
contends that the testimony of Dr. Susan Ford, one of Respondent’s disclosed
witnesses, is not lay witness testimony but, in fact, expert testimony. (Doc. 95, p.
3). “The indication that Dr. Ford will be discussing IQ testing assessments and
specifically the ‘Flynn effect’ suggest that her testimony will involve ‘scientific,
technical, or other specialized knowledge’ based on her status as a psychologist.” Id.
at 4. Therefore, as to Dr. Ford, Respondent should amend his witness disclosure to
comply with Rule 26(a)(2). Id.
But as the Eleventh Circuit Court of Appeals concluded, “Rule 701 does not
prohibit lay witnesses from testifying based on particularized knowledge gained
from their own personal experiences.” Hill, 643 F.3d at 841. To this, Respondent

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avers that Dr. Ford will not offer expert testimony but “merely testify to the fact
that the Alabama Department of Mental Health and Mental Retardation does not
utilize the ‘Flynn effect’ when it tests an individual to determine whether the
individual qualifies for services from the Alabama Department of Mental Health
and Mental Retardation.” (Doc. 98, p. 2). This “very limited lay witness” testimony
is not based on Dr. Ford’s professional credentials. Id. at 1, 3. Instead, Dr. Ford’s
testimony is based on her personal “knowledge and participation in the day-to-day
affairs” of her ex-employer, which falls outside the purview of Rule 702. Id. at 3.
Indeed, as the Advisory Committee Notes explain, “The amendment does not
distinguish between expert and lay witnesses, but rather between expert and lay
testimony.” Fed. R. Evid. 701 Advisory Comm. Notes (emphasis in original). More
simply, credentials alone do not make the expert; the testimony based upon the
credentials make the expert. And, as the Eleventh Circuit found in Tampa Bay
Shipbuilding & Repair Co. v. Cedar Shipping Co., Ltd., opinion testimony regarding
the manner or method upon which a company takes action, which is based on
particularized knowledge gained by a witness’s employment, is properly treated as
lay testimony. 320 F.3d 1213, 1223 (11th Cir. 2003).
Here, Petitioner’s motion blurs the distinction between “lay and expert
testimony” and “lay and expert witnesses.” A distinct difference exists in (1) what
Dr. Ford is aware the Department of Mental Health uses in day-to-day activities
based on her status as an ex-employee and (2) what Dr. Ford may testify to as a

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“mental health professional” regarding the impact of the “Flynn effect” on an
intellectual disability determination. The former is the proper analysis based on
Respondent’s position that Dr. Ford is a “very limited lay witness.” Surely Dr. Ford
is able to answer what the Department of Mental Health uses based on her
particularized knowledge gained in her position. That employees in other sections
of the Department of Mental Health were or are unaware of whether the “Flynn
effect” is utilized is of no accord. The Advisory Committee’s language speaks to an
individual witness’s knowledge and not the knowledge of a collective body in
deciding the applicability of Rule 701. Fed. R. Evid. 701 Advisory Comm. Notes; see
also Tampa Bay, 320 F.3d at 1223 (applying Rule 701 based on the employee’s
personal knowledge, not company wide knowledge).
On the other hand, Dr. Ford’s testimony as to what the “Flynn effect” is or its
impact in rendering a decision as to an individual’s intellectual disability is a
different story. See Fed. R. Evid. 701 Advisory Comm. Notes (“If, however, that
witness were to describe how a narcotic was manufactured, or to describe the
intricate workings of a narcotic distribution network, then the witness would have
to qualify as an expert under Rule 702) (citing United States v. Figueroa-Lopez, 125
F.3d 1241, 1246 (9th Cir. 1997)). In such a case, Rule 26(a)(2)’s requirements would
be triggered. But such a case is not before the Court because Respondent insists
that Dr. Ford’s testimony will not extend that far. Furthermore, Petitioner’s
argument as to the relevance of Dr. Ford’s testimony regarding departmental

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procedures is premature since the question at this juncture is whether Respondent’s
disclosure measures up.
Thus, the Court DENIES Petitioner’s Motion to Compel (Doc. 95).
DONE and ORDERED this 5th day of April, 2017.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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