United States of America v. Colorado City, Town of et al

Filing 605

ORDER The Hildale Defendants' motion in limine 574 for the exclusion of expert testimony by Mann and Stephenson is granted for violation of Rule 26(a)(2)(B). In consideration of the foregoing, the court need not address the parties' other arguments. Signed by Judge H Russel Holland on 3/17/2015.(KMG)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

)
)
Plaintiff, )
)
vs.
)
)
TOWN OF COLORADO CITY, ARIZONA;
)
et al.,
)
)
Defendants. )
__________________________________________)

No. 3:12-cv-8123-HRH
(Prescott Division)

ORDER
Hildale Defendants’ Motion in Limine;
Proposed Testimony of Stephenson and Mann1
Defendants City of Hildale, Twin City Water Authority, and Twin City Power
(collectively the “Hildale Defendants”) move the court for an order excluding the proposed
expert testimony of J. Scott Stephenson and Lyle Mann as unreliable and irrelevant under
Rule 702, Federal Rules of Evidence. The motion is opposed,2 and the Hildale Defendants
have replied.3 Defendant Town of Colorado City joins in this motion.4 Oral argument has
not been requested and is not deemed necessary.
1

Docket No. 574.

2

Docket No. 591.

3

Docket No. 598.

4

Docket No. 576.

Order – Hildale Motion in Limine;
Proposed Testimony of Stephenson and Mann

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Plaintiff proposes to call as expert witnesses Mann who is the director of AZ POST5
and Stephenson who is the director of UT POST.6 The organizations of which Mann and
Stephenson are directors are charged with the responsibility of certifying or decertifying
peace officers in their respective jurisdictions. Plaintiff expects both Mann and Stephenson
to hear trial testimony and then offer opinions about trial testimony having to do with the
operation of the Town of Colorado City’s marshal’s office (“CCMO”). There is no evidence
that either Mann or Stephenson hold themselves out as experts for hire. There is no
evidence that Mann or Stephenson are being paid for their work in connection with this
case. Except as discussed below, there is no evidence that plaintiff provided records or
data of any kind to Mann or Stephenson for their review and for the formation of opinions
about the operation of the CCMO.
Although the parties discuss the role of Evidence Rule 702, et seq., in this case, the
defendants’ principal argument is that plaintiff failed to comply with the expert testimony
disclosure requirements of Rule 26, Federal Rules of Civil Procedure.
Pertinent to this case, Rule 26(a)(2)(A) is a general requirement that parties disclose
the identity of expert witnesses. Here, plaintiff has done that. Rule 26(a)(2)(B) requires that
a party expecting to call an expert witness who has been “retained or specially employed
to provide expert testimony in the case” must provide a written report containing certain
disclosures enumerated in subpart (2)(B) of the rule. Plaintiff did not comply with this part
of Rule 26(a). Rule 26(a)(2)(C) addresses the subject of expert witnesses who do not
provide a written report. This subpart of Rule 26(a) provides:
Unless otherwise stipulated or ordered by the court, if the
witness is not required to provide a written report, this
disclosure must state:

5

Arizona Peace Officer Standards and Training.

6

Utah Peace Officer Standards and Training.

Order – Hildale Motion in Limine;
Proposed Testimony of Stephenson and Mann

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(i) the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or
705; and
(ii) a summary of the facts and opinions to which the witness
is expected to testify.
Plaintiff arguably complied with the requirements of this portion of Rule 26(a). The
question now before the court is whether or not plaintiff was required to provide a written
report with respect to the anticipated testimony of Mann and Stephenson.
Plaintiff contends that it has neither contracted with, retained, employed, or paid
Mann or Stephenson with respect to their proposed testimony. As already stated, Mann
and Stephenson are public officials in the employ of agencies of the states of Arizona and
Utah. They are plainly not in the business of providing expert testimony. Mann and
Stephenson are not experts for hire, nor have they been hired as experts. But does that
mean that Mann and Stephenson were not “specially employed” to provide expert
testimony in this case?
There is little helpful authority on the subject of which expert witnesses must write
reports and which are excused from the obligation to provide a written report. In
Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011), the court of
appeals recognizes the existence of “hybrid expert situation[s]”. Id. at 826. In Goodman,
the circuit court holds that a treating physician is exempt from Rule 26(a)(2)(B) “to the
extent that his opinions were formed during the course of treatment.” Id. However, when
the physician goes beyond the treatment provided – for example, reviewing information
provided by counsel for purposes of forming opinions – Rule 26(a)(2)(B) comes into play
and the reporting process must be adhered to.
The First Circuit addressed the subject at hand in Downey v. Bob’s Discount
Furniture Holdings, Inc., 633 F.3d 1 (1st Cir. 2011). In Downey, the court dealt with a
situation similar to that in Goodwin, and again focused upon the meaning of “retained or
Order – Hildale Motion in Limine;
Proposed Testimony of Stephenson and Mann

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specially employed.” The court noted that the expert in question did not hold himself out
for hire as an expert and there was no evidence that he was charging or receiving a fee for
his testimony. The court held:
In order to give the phrase “retained or specially employed”
any real meaning, a court must acknowledge the difference
between a percipient witness who happens to be an expert, and
an expert who without prior knowledge of the facts giving rise
to litigation is recruited to provide expert opinion testimony.
Downey, 633 F.3d at 6. In Downey, the witness was viewed by the court as one whose:
[O]pinion testimony arises not from his enlistment as an expert
but, rather, from his ground-level involvement in the events
giving rise to the litigation. Thus he falls outside the compass
of Rule 26(a)(2)(B).
Id.
Returning to our case, there is no indication that Mann or Stephenson are in any
sense percipient witnesses to what was going on with respect to the CCMO. Neither Mann
nor Stephenson were involved in any disciplinary proceedings with regard to any CCMO
personnel. Although, except as noted below, not provided with documents or data to
evaluate for purposes of forming an opinion, as is usually done with an expert witness,
plaintiff expects Mann and Stephenson to simply listen to trial testimony and then form an
opinion. This court is aware of no authority for the proposition that the hybrid situation
described in Goodman, nor the percipient witness who happens to be an expert situation
described in Downey, should be extended to the situation presented by this case.
What makes evaluating this situation troublesome is the fact that initially plaintiff’s
counsel appears to have provided Mann and Stephenson with no documents or data to
evaluate for purposes of forming an opinion. Rather, as stated above, plaintiff intends to
have Mann and Stephenson listen to trial testimony and then offer an expert opinion. How
could such a witness be expected to write a report when he has not yet heard the trial
testimony upon which his opinions will be based? Under such circumstances, would it not
Order – Hildale Motion in Limine;
Proposed Testimony of Stephenson and Mann

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be appropriate for the plaintiff to comply with Rule 26(a)(2)(C) by disclosing the subject
matter on which the witness is expected to present expert testimony? The answers to these
questions, for purposes of this case, lie in some further discussion of what has actually
transpired with respect to Mann and Stephenson.
For reasons not entirely clear to the court, plaintiff wrote a letter to Mann and
Stephenson on October 29, 2014.7 The letter was copied to defense counsel. By this letter,
and for the first time so far as the court is aware, plaintiff informed both Mann and
Stephenson (as well as the defendants) “of the CCMO practices and conduct we expect to
come into evidence at a trial in this case, and that we expect would help form the basis for
your expert, testimonial opinion(s).” The letter continues to describe a full page of
practices and conduct, some focused upon the marshal’s office generally and other matters
focused upon the marshal’s officers. It is of course no surprise that counsel have become
aware through discovery (which has been extensive in this case) of the practices and
conduct of marshal’s employees which plaintiff intends to call into question. Moreover,
Mann was deposed by defendants and, in the course of that deposition, was asked:
“[s]itting here today, are you of the opinion that certain practices and past conduct of [the]
Colorado City Marshal’s office are inconsistent with your – with Arizona state law
enforcement standards and training? [Answer:] Yes.”8 Similarly, defendants deposed
Stephenson, and fragments of that deposition which have been provided to the court
suggest that counsel for plaintiff discussed Stephenson’s opinions about hypothetical

7

See attachment to Hildale Defendants’ Daubert Motion in Limine to Exclude
Testimony of Proposed Expert Witnesses J. Scott Stephenson and Lyle Mann, Docket
No. 574-2.
8

United States’ Opposition to Motion in Limine, Exhibit 1 (page 15 of 35), Docket
No. 591-1.
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Proposed Testimony of Stephenson and Mann

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situations in connection with arranging for him to act as an expert witness for plaintiff.9
The court concludes that plaintiff had the wherewithal to provide Mann and Stephenson
with information which plaintiff had developed in the course of discovery on the subject
of the operations of the CCMO, on the basis of which Mann and Stephenson could have
formulated their opinions and reduced them to a timely disclosed expert report as
contemplated by Rule 26(a)(2)(B).
The court further concludes that because Mann and Stephenson are in no sense
percipient witnesses, they do not fall within the “hybrid expert” category of witnesses
recognized by Goodman and Downey. Like the court in Downey, the court construes the
Rule 26(a)(2)(B) term “retained or specially employed to provide expert testimony” to
include witnesses such as Mann and Stephenson who are not percipient witnesses and who
have been “recruited to provide expert opinion testimony.” Downey, 633 F.3d at 6.
Rule 37(c)(1), Federal Rules of Civil Procedure, provides in pertinent part that: “[i]f
a party fails to provide information or identify a witness as required by Rule 26(a) or (e),
the party is not allowed to use that information or witness ... at a trial, unless the failure
was substantially justified or is harmless.” Here, what has transpired was neither justified
nor harmless. The court is convinced that plaintiff has known for a very long time the
nature of the police practices which it intended to challenge through expert testimony, and
has deliberately – by means of the tactical device of stating that their experts would form
opinions based upon trial testimony – endeavor to keep defendants in the dark as to what
Mann’s and Stephenson’s opinions would be.

The report writing requirements of

Rule 26(a)(2)(B) are intended to prevent the kind of blind-siding that flows from keeping
expert opinions hidden.

9

United States’ Opposition to Motion in Limine, Exhibit 2 (pages 28 and 32 of 35),
Docket No. 591-1.
Order – Hildale Motion in Limine;
Proposed Testimony of Stephenson and Mann

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The Hildale Defendants’ motion in limine for the exclusion of expert testimony by
Mann and Stephenson is granted for violation of Rule 26(a)(2)(B). In consideration of the
foregoing, the court need not address the parties’ other arguments.
DATED at Anchorage, Alaska, this 17th day of March, 2015.

/s/ H. Russel Holland
United States District Judge

Order – Hildale Motion in Limine;
Proposed Testimony of Stephenson and Mann

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