Farris v. Kohl et al

Filing 205

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Plaintiff Jacqueline Farris' Motion to Strike Defendants' Rule 26(a)(2)(C) Disclosure of Ryan Nottingham 201 is DENIED. See written order. (LB, ilcd)

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E-FILED

Monday, 16 November, 2020 04:25:33 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
JACQUELINE FARRIS,
Plaintiff,
v.
ERIC KOHLRUS, et al.,
Defendants.

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Case No. 17-cv-3279

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Jacqueline Farris’
Motion to Strike Defendants’ Rule 26(a)(2)(C) Disclosure of Ryan
Nottingham (d/e 201) (Motion). For the reasons set forth below, the Motion
is DENIED.
BACKGROUND
Farris alleges that on December 28, 2015, Defendant Illinois Logan
Correctional Center (Logan) Correctional Officer Erik Kohlrus sexually
assaulted her and forced her to engage in non-consensual sex. Second
Amended Complaint (d/e 170), ¶ 36. She alleges that she was
subsequently retaliated against for reporting the assault. Farris alleges
claims against Kohlrus, and claims against Defendants Alex Adams, Norine
Ashley, Christine Brannon, Clara Charron, Mike Funk, Jeffrey Gabor, Lisa
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Johnson, Patrick Keane, Angela Locke, Alan Pasley, Trina Snyder, Felipe
Zavala, and the Illinois Department of Corrections (Department or IDOC)
(collectively the Department Defendants). Farris alleges claims under 42
U.S.C. § 1983, the Rehabilitation Act, the Americans with Disabilities Act,
and state law. See generally Second Amended Complaint.
Farris alleges that there was a widespread practice of “guard-oninmate” sexual assaults at Logan. She alleges that Department
Defendants Brannon, Locke, Charron, Ashley, Johnson, Keane, Funk,
Zavala, and Pasley (PREA Defendants) had duties related to compliance
with the Prison Rape Elimination Act (PREA). See Second Amended
Complaint, ¶¶ 59-61. She alleges that the PREA Defendants “were
responsible for the creation, implementation, oversight, and supervision of
the statewide training, policies, and procedures followed by IDOC
employees, including those employees at Logan Correctional Center that
related to PREA violations.” Id. ¶ 60. She alleges that the PREA
Defendants “knew or should have known of a widespread practice by IDOC
employees at Logan Correctional Center who engaged in guard-on-inmate
sexual assaults . . . by way of . . . annual PREA Compliance Reports . . ..”
Id. ¶ 61.

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Farris, therefore, put at issue whether the annual PREA Compliance
Reports would have disclosed the alleged widespread practice of guard-oninmate sexual assaults at Logan. Farris also put at issue the involvement
of the PREA Defendants in “the creation, implementation, oversight, and
supervision of the statewide training, policies, and procedures . . . at Logan
. . . related to PREA violations.” Second Amended Complaint, ¶¶ 60-61.
On October 27, 2020, the Department Defendants provided Farris
with their Second Supplemental rule 26(a)(2)(C) Expert Disclosure (Expert
Disclosure), disclosing their expert witnesses. Motion, Exhibit A, Expert
Disclosure. The Department Defendants disclosed Ryan Nottingham,
Agency PREA Coordinator for the Department, as one of their expert
witnesses:
1. Ryan Nottingham, Agency PREA Coordinator for the
Illinois Department of Corrections (IDOC). Mr. Nottingham’s
duties include advising facility management on PREA,
interpreting legislation and discussing agency responsibility to
ensure compliance with agency directives and federal laws
relating to PREA, and reviewing and monitoring facilities’ plans
for implementation of processes to ensure the safety of
offenders within correctional facilities.
Mr. Nottingham will testify as to his knowledge,
experience, and expertise regarding PREA in the IDOC,
including PREA audits, compliance, staff training, and
measures taken to investigate PREA complaints generally, and
as to his awareness of the investigation of a PREA complaint
made by the Plaintiff in this case. Mr. Nottingham will discuss
the role and responsibilities of the PREA Compliance Manager,
and offer his opinion that the PREA investigation into the
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complaint made by the Plaintiff was promptly initiated, Plaintiff
received prompt medical and mental health evaluation and
treatment, internal and external investigators were notified and
investigations initiated, and plaintiff was promptly separated
from the alleged perpetrator.
Mr. Nottingham will also offer opinions in rebuttal to those
expressed in the report of Plaintiff’s retained expert Wendy Still,
including but not limited to his opinion that the actions of
Defendant Kohlrus were unrelated to any alleged deficiencies in
the PREA program at Logan Correctional Center. Mr.
Nottingham reserves the right to supplement his opinions based
on the deposition testimony of Ms. Still.
Mr. Nottingham can be contacted c/o the undersigned
counsel, 201 West Point Dr., Swansea, IL 62226.
Expert Disclosure, at 1-2. The Department Defendants previously
disclosed Nottingham as a fact witness, “Ryan Nottingham . . . is currently
the Illinois Department of Corrections PREA Compliance Manager. Mr.
Nottingham may have knowledge of IDOC policies and procedures
concerning PREA.” Motion, Exhibit C, Defendants’ Supplemental
Disclosures, at 9.
Farris moves to strike the disclosure of Nottingham as an expert
witness under Rule 26(a)(2)(C). Such expert witnesses are not required to
provide expert reports. Farris argues that Nottingham should have been
disclosed under Rule 26(a)(2)(B) as an expert witness who must provide a
written report. Farris asks the Court to strike the disclosure and effectively
bar the Department Defendants from eliciting expert testimony from
Nottingham. The Moving Defendants oppose the Motion. They assert that
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Nottingham is properly disclosed under Rule 26(a)(2)(C) and was not
required to provide an expert report.
ANALYSIS
Rule 26(a)(2) requires parties to disclose expert witnesses, as
follows:
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule
26(a)(1), a party must 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.
(B) Witnesses Who Must Provide a Written Report. Unless
otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report--prepared and signed
by the witness--if the witness is one retained or specially
employed to provide expert testimony in the case or one whose
duties as the party's employee regularly involve giving expert
testimony. The report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
them;
(iii) any exhibits that will be used to summarize or support
them;
(iv) the witness' qualifications, including a list of all
publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
deposition; and
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(vi) a statement of the compensation to be paid for the
study and testimony in the case.
(C) Witnesses Who Do Not Provide a Written Report. Unless
otherwise stipulated or ordered by the court, if the witness is not
required to provide a written report, this disclosure must state:
(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.
Fed. R. Civ. P. 26(a)(2).
Three class of witnesses must provide reports under Rule 26(a)(B):
(1) retained witnesses, (2) specially employed witnesses to provide expert
testimony, and (3) a witness whose duties as the party's employee
regularly involve giving expert testimony. Nottingham is not a retained
expert, and his duties do not regularly involve giving expert testimony. The
issue is whether the Department specially employed Nottingham to give
expert testimony in this case.
Nottingham would be considered specially employed to provide
expert testimony if he “was ‘assigned to perform work or analysis outside
the normal scope of the witness’ employment in order to provide expert
testimony in this case.’” Avnet, Inc. v. Motio, Inc., 2016 WL 927194, at *3
(N.D. Ill. March 4, 2016) (quoting D.G. v. Henry, 2011 WL 2746180, at *1
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(N.D. Okla. July 13, 2011)). Nottingham would not be a specially employed
expert if he testified based on knowledge he obtained while performing his
regular duties in the ordinary course of his employment. Id., at *4-5; see
Downey v. Bob’s Discount Furniture Holdings, Inc., 633 F.3d 1, 4 (1st Cir.
2011); Tate & Lyle Americas LLC v. Glatt Air Techniques Inc., 2015 WL
13608395, at *2 (C.D. Ill. August 12, 2015).
The Department Defendants disclosed that Nottingham would “testify
as to his knowledge, experience, and expertise regarding PREA in the
IDOC, including PREA audits, compliance, staff training, and measures
taken to investigate PREA complaints generally.” Expert Disclosure, at 2.
Nottingham’s regular duties provided him with the expertise to provide
expert testimony on these matters. Nottingham is the Agency PREA
Coordinator for the Department. His duties include, “advising facility
management on PREA, interpreting legislation and discussing agency
responsibility to ensure compliance with agency directives and federal laws
relating to PREA, and reviewing and monitoring facilities’ plans for
implementation of processes to ensure the safety of offenders within
correctional facilities.” Expert Disclosure, at 2. The Department
Defendants’ disclosures demonstrate that Nottingham was not specially
employed to provide this expert opinion testimony.
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These opinions are relevant to this case. Nottingham’s regular
duties, described above, would provide him with expertise to opine on
matters related to PREA that Farris put at issue in her Second Amended
Complaint: (1) “the creation, implementation, oversight, and supervision of
the statewide training, policies, and procedures followed by IDOC
employees, including those employees at Logan Correctional Center that
related to PREA violations”; and (2) the contents of the annual PREA
Compliance Reports and whether the PREA Defendants “knew or should
have known of a widespread practice by IDOC employees at Logan
Correctional Center who engaged in guard-on-inmate sexual assaults . . .
by way of . . . annual PREA Compliance Reports, . . . .” Second Amended
Complaint, ¶¶ 60-61. Nottingham is not a specially employed expert to
provide expert testimony on these issues. He, therefore, was properly
disclosed under Rule 26(a)(2)(C) to provide these opinions.
The Department Defendants also disclosed that Nottingham would
testify “as to his awareness of the investigation of a PREA complaint made
by the Plaintiff in this case.” The Department Defendants disclosed that,
based on his experience and his awareness of Farris’ complaint,
Nottingham would provide the following opinions:
Mr. Nottingham will discuss the role and responsibilities of the
PREA Compliance Manager, and offer his opinion that the
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PREA investigation into the complaint made by the Plaintiff was
promptly initiated, Plaintiff received prompt medical and mental
health evaluation and treatment, internal and external
investigators were notified and investigations initiated, and
plaintiff was promptly separated from the alleged perpetrator.
Expert Disclosure, at 2. Based on the description of Nottingham’s duties as
the Agency PREA Coordinator he would also have knowledge of inmate
claims of sexual assault such as Farris’ claim and he would have the
expertise to offer the quoted opinions. His knowledge of such matters
would come from his disclosed duties as the Agency PREA Coordinator for
the entire Department. Nottingham, therefore, can provide expert
testimony regarding such matters as an expert witness disclosed under
Rule 26(a)(2)(C). The Court will not strike the Department Defendants’
disclosure of Nottingham.
The Court notes that Farris relies heavily on the Avnet case to
support this motion. The facts in Avnet are markedly different than
Nottingham’s situation in this case. In Avnet, the defendant/counterplaintiff
Motio, Inc., disclosed its CEO as an expert witness to opine as to the noninfringement and invalidity of certain patents. As the CEO and head of
sales for Motio, Inc., his duties did not provide him with relevant
background to enable him to opine on noninfringement or invalidity of the
patents at issue. Avnet, 2016 WL 927194, at *4-*5. Nottingham’s regular
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duties directly involved him in the administration of PREA throughout the
Department, including at Logan. He therefore developed his expertise
necessary to provide the disclosed opinions directly from his regular duties.
The situation is markedly different from the Avnet case.
Farris also challenges the scope of expert testimony that Nottingham
can provide. The scope of Nottingham’s testimony is an issue to be raised
with the District Court at the appropriate time through dispositive motion
practice, pretrial motions in limine, or otherwise. Disputes over the scope
of his testimony is not a basis to strike the disclosure and bar all expert
testimony from Nottingham.
THEREFORE, IT IS ORDERED that Plaintiff Jacqueline Farris’
Motion to Strike Defendants’ Rule 26(a)(2)(C) Disclosure of Ryan
Nottingham (d/e 201) is DENIED.
ENTER: November 16, 2020
s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE

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