Jones et al v. Goodrich Corporation et al

Filing 326

ORDER granting in part and denying in part 290 Motion to Strike. Defendants will have until December 22, 2017, to furnish reports for Dana and Niebanck. Depositions shall be completed by January 31, 2018, and dispositive motions shall be submitted by February 28, 2018. Signed by Judge Warren W. Eginton on 12/11/17. (Ladd-Smith, I.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BRENDA JONES, et al.,
Plaintiffs,
v.
GOODRICH CORPORATION, et al.,
Defendants.

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3:12-cv-01297-WWE

MEMORANDUM OF DECISION ON PLAINTIFFS’ MOTION TO STRIKE
Plaintiffs have moved to exclude the expert testimony of James Dana and Robert
Neibanck for failure to provide written reports pursuant to Rule 26. In the alternative, plaintiffs
request that defendant Goodrich Pump & Engine Control Systems (“GPECS”) be required to
produce expert reports for Dana and Neibanck prior to their depositions.
GPECS responds that Dana and Niebanck are not required to provide written reports
because they were not retained or specially employed to provide expert testimony and do not
regularly provide expert testimony. See Fed. R. Civ. P. 26(a)(2)(B). GPECS requests that if
reports are required, it should be allowed a reasonable period to submit them, and Dana and
Niebanck should be made available for deposition shortly thereafter.
GPECS contends that, in determining whether an employee is “retained or specifically
employed to provide expert testimony,” courts in the Second Circuit consider whether the
employee was hired to provide expert testimony and whether the employee received additional
compensation for his or her expert testimony. GPECS proffers that Dana and Niebanck were not
so retained and did not receive additional compensation.
The report requirement in Rule 26(a)(2)(B) does not turn solely on an expert's
compensation or lack thereof. Rather, the more relevant distinction is between an
expert who happened to have personal involvement with the events giving rise to
litigation and an expert whose only involvement consists of aiding the already1

initiated litigation. See Fed. R. Civ. P. 26 adv. comm. nn. (2010 Amends., Subdiv.
(a)(2)(C)) (“A witness who is not required to provide a report under Rule
26(a)(2)(B) may both testify as a fact witness and also provide expert testimony
under Evidence Rule 702, 703, or 705.”); Bank of China, N.Y. Branch v. NBM LLC,
359 F.3d 171, 182 n.13 (2d Cir. 2004) (“Because Huang was not specially retained
to provide expert testimony, and his duties as an employee of Bank of China do not
regularly include giving expert testimony, Rule 26(a)(2)(B) does not
apply.”); Downey v. Bob's Disc. Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir.
2011) (“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.”); Prieto v. Malgor, 361 F.3d 1313, 1318 (11th Cir 2004) (requiring
report where expert “had no connection to the specific events underlying this case
apart from his preparation for this trial”).
Caruso v. Bon Secours Charity Health System, Inc., 2017 WL 3638203, at *2 (2d Cir. Aug. 24,
2017)(summary order).
Here, Niebanck’s proposed testimony, that the helicopter’s design features were
reasonably safe, does not have a sufficient nexus to his personal involvement with specific
events underlying the case. Accordingly, he needs to provide an expert report under Rule
26(a)(2)(B).
In contrast, Dana had prior knowledge of facts giving rise to this litigation based on his
post-crash examination and testing of the specific helicopter components at issue in this case.
Notably, Dana’s involvement in the accident investigation was within his job responsibilities
with GPECS as a product support engineer. In this context, Dana is somewhat analogous to a
treating physician. Accordingly, to the extent that Dana’s expert testimony is based on his
personal involvement, he does not need to provide an expert report. “Nevertheless, if a party
discloses an expert who does not need to provide an expert report under Rule 26(a)(2)(B), the
party proffering the expert must still provide a disclosure that states ‘the subject matter on which
the witness is expected to present evidence’ and ‘a summary of the facts and opinions to which
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the witness is expected to testify.’” Pitterman v. General Motors LLC, 2016 WL 2892537, at *2
(D. Conn. May 17, 2016)(quoting Fed. R. Civ. P. 26(a)(2)(C)). Moreover, if GPECS decides to
forgo provision of an expert report for Dana, defendants will risk the possibility that his
testimony at trial will be limited in scope to matters of sufficient relation to his personal
involvement as an engineer.
Defendants will have until December 22, 2017, to furnish reports for Dana and Niebanck.
Depositions shall be completed by January 31, 2018, and dispositive motions shall be submitted
by February 28, 2018.
Dated this 11th day of December, 2017, at Bridgeport, Connecticut.

/s/Warren W. Eginton
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE

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