Garland v. Board of Education of Denver Public School District No.1, The et al

Filing 90

ORDER. Defendants Motion to Strike Plaintiffs Expert Witness Disclosures 54 is DENIED in part to the extent that it seeks to strike Plaintiffs expert disclosures for failure to comply with Fed. R. Civ. P. 26(a)(2)(C). By Magistrate Judge Kathleen M. Tafoya on 2/16/2012. (sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 11–cv–00396–REB–KMT

ELISA GARLAND,
Plaintiff,
v.
THE BOARD OF EDUCATION OF DENVER PUBLIC SCHOOL DISTRICT NO. 1, a
political subdivision of the State of Colorado,
JACKIE SCHNEIDER, in her individual and official capacity,
JOHN YOUNGQUIST, in his individual and official capacity,
WILLIAM EWING, in his individual and official capacity, and
SHAWN ALLEGREZZA, in her individual and official capacity,
Defendants.

ORDER

This matter is before the court on Defendants’ “Motion to Strike Plaintiff’s Expert
Witness Disclosures.” (Doc. No. 54, filed Oct. 31, 2011.) Plaintiff filed her response on
November 22, 2011 (Doc. No. 66) and Defendants filed a reply on December 16, 2011 (Doc. No.
71). Although originally referred to this court for disposition in its entirety (Doc. No. 55), on
February 14, 2012, District Judge Robert E. Blackburn partially withdrew his referral of
Defendants’ Motion. (Doc. No. 89.) Specifically, Judge Blackburn withdrew his referral as to
Defendants’ argument that Plaintiff’s designated experts’ proposed testimony violates Fed. R.
Evid. 704. (Doc. No. 89.) Accordingly, the Motion is before the court, and ripe for ruling, only
as to Defendants’ argument that Plaintiff failed to comply with Fed. R. Civ. P. 26(a)(2).

In their Motion, Defendants seek to strike Plaintiff’s expert disclosures of Peter Frigo and
Vince DiCroce, both of whom were disclosed on August 31, 2011 as non-retained experts. Mr.
Frigo and Mr. DiCroce were Assistant City Attorneys with the Denver City Attorney’s Office
and were responsible for prosecuting the underlying criminal charges against Plaintiff relevant to
this case. Defendants maintain Plaintiff failed to comply with Fed. R. Civ. P. 26(a)(2)(C)
because neither Plaintiff or her counsel contacted Mr. DiCroce or Mr. Frigo prior to disclosing
them as expert witnesses and thus Plaintiff’s disclosure of the substance of their proposed
testimony is “based on nothing more than Plaintiff’s own speculation.” (See Mot. at 3-4.)
Federal Rule of Civil Procedure 26(a)(2)(C) provides, for non-retained witnesses, a party
must disclose “(i) the subject matter on which the witness is expected to present evidence under
Federal Rule of Evidence 702, 703, or 705; (ii) and a summary of the facts and opinions to which
the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C)(i)–(ii). Notably, Defendants do
not mount a facial attack on the actual substance of Plaintiff’s Rule 26(a)(2) disclosures. Rather,
they contend that because “[n]either Plaintiff nor her attorney contacted Mr. DiCroce or Mr.
Frigo prior to designating each as an expert witness . . . Plaintiff has no reasonable basis for her
statement as to what facts and opinions either witness’s testimony will likely include much less
her repeated statements that Mr. Frigo and Mr. DiCroce ‘will’ testify to specific matters.” (Id.)
Based on the court’s review of Rule 26(a)(2)’s plain language, as well as the Advisory
Committee notes, the court finds that Rule 26 does not affirmatively require that a disclosing
party meet and confer with a non-retained expert to discuss the subject matter of that expert’s

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anticipated testimony.1 Rather, the Advisory Committee Notes tend to suggest the opposite.
First, the court notes that a Rule 26(a)(2)(C) “disclosure is considerably less extensive than the
report required by Rule 26(a)(2)(B).” Advisory Committee Notes to 2000 Amendments to Rule
26. Thus, courts should not scrutinize a party’s disclosures of a non-retained expert at the same
level as it would with respect to a specially retained expert.
More to the point, “[c]ourts must take care against requiring undue detail, keeping in
mind that these witnesses have not been specially retained and may not be as responsive to
counsel as those who have.” Id. (emphasis added). Thus, the Advisory Committee Notes
explicitly contemplate the scenario where a party may not have extensive contact with a nonretained expert prior to serving its disclosures.
In light of this guidance, the court does not read Rule 26(a)(2) to include a requirement
that a party affirmatively confer with a non-retained expert regarding the substance of his or her
testimony prior to disclosing the latter as an expert witness. Cf. Nagle v. Mink, 10-cv-01935PAB-MEH, 2011 WL 3861435, at *3 (D. Colo. Aug. 29, 2011) (unpublished) (“Rule 26(a)(2)
addresses only the sufficiency of the disclosure.”) (emphasis added). As such, the court finds
that striking Plaintiff’s disclosures of Mr. DiCroce and Mr. Frigo as non-retained experts would
be unwarranted. This is not to suggest that there are no limits on a party’s ability to disclose a
non-retained expert. For example, Rule 26(e) provides an ongoing duty to supplement Rule

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The court notes that the amendment to add Subsection C to Rule 26(a)(2) took effect on
December 1, 2010. Thus, given Subsection C’s relative infancy, there is limited case law
construing this rule generally, let alone as to the precise question raised by Defendants.
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26(a) disclosures if the party learns that the disclosures are incomplete or inaccurate, Fed. R.
Civ. P. 26(e), and Rule 37(c)(1) provides that a party failing to comply with that duty will not be
allowed to use that information at trial, Fed. R. Civ. P. 37(c)(1). Thus, if a party’s disclosures
are materially inaccurate because she failed to confer with a disclosed non-retained expert or
failed to alter her disclosures in light of additional discovery, she may well be prohibited from
presenting that witness at trial.
Accordingly, for the foregoing reasons, it is
ORDERED that Defendants’ “Motion to Strike Plaintiff’s Expert Witness Disclosures”
(Doc. No. 54) is DENIED in part to the extent that it seeks to strike Plaintiff’s expert disclosures
for failure to comply with Fed. R. Civ. P. 26(a)(2)(C).
Dated this 16th day of February, 2012.

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