Haney v. City of Fort Wayne et al

Filing 36

OPINION AND ORDER: GRANTING 33 MOTION to Exclude, or in the Altnerative, Limit Testimony of Plaintiff's "Non-Retained Expert" by Defendants John Drummer, Fort Wayne City of, Cameron Norris. Dr. Archuletta may not offer expert testi mony at trial; she may testify regarding her observations made during the postmortem examination, as well as her statements and findings made in her postmortem examination final report. Signed by Magistrate Judge Susan L Collins on 5/20/2016. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ROSIE HANEY, estate of
TaVontae Haney,
Plaintiff,
v.
CITY OF FORT WAYNE, et al.,
Defendants.

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No. 1:15-cv-00076-SLC

OPINION AND ORDER
Before the Court is a motion to exclude or limit the testimony of a “non-retained expert,”
filed by Defendants City of Fort Wayne, Officer John Drummer, and Officer Cameron Norris
(collectively, “Defendants”). (DE 33). In their motion, Defendants seek to exclude or limit the
testimony of Plaintiff Rosie Haney’s non-retained expert, Dr. Pamela A. Archuletta. Haney has
not filed any response to Defendants’ motion, and the time to do so has now run. This motion is
therefore ripe for adjudication. Defendants’ motion will be GRANTED for the reasons set forth
below.1
I. BACKGROUND
This § 1983 action arises out of a traffic stop that took place on or about April 27, 2013,
when Haney’s son, TaVontae Haney, who was a passenger in the stopped vehicle, was shot by
police officers when he fled on foot after the stop began. (DE 7). The Court held a preliminary
pretrial conference on May 20, 2015, setting the following deadlines: June 5, 2015, for initial
disclosures under Rule 26(a)(1); November 30, 2015, for Haney’s expert witness disclosures
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Federal question jurisdiction exists under 28 U.S.C. § 1331. Jurisdiction of the
undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting. (DE 24).

under Rule 26(a)(2); January 15, 2016, for Defendants’ expert witness disclosures under Rule
26(a)(2); and February 15, 2016, for the completion of all discovery. (DE 20; DE 23).
II. LEGAL STANDARD
“[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.” Fed. R. Civ. P.
26(a)(2)(A). “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 . . . .” Fed. R. Civ. P. 26(a)(2)(B). If
the witness is not required to provide a written report, the 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)(C).
Federal Rule of Civil Procedure 37(c)(1) states that “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a),” “the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” “[T]he sanction of exclusion is automatic and
mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either
justified or harmless.” Westefer v. Snyder, 422 F.3d 570, 584 n.21 (7th Cir. 2005) (quoting
Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998)).

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III. ANALYSIS
Defendants state that Haney identified Dr. Archuletta as a non-retained expert in her
supplemental initial disclosures pursuant to Rule 26. In her supplemental initial disclosures,
Haney stated that “Dr. Archuletta is the anatomic and clinical pathologist who performed the
postmortem examination of Mr. Haney on behalf of the Allen County Coroner, Craig Nelson, on
April 28, 2013. Dr. Archuletta will testify to this six-page postmortem examination, including
findings of injury to Mr. Haney’s back. A copy of this examination is attached, along with
certificate of death.” (DE 33 ¶ 3 (quoting DE 33-1 at 2)).
Defendants contend that Haney’s supplemental initial disclosures “only broadly describe
Dr. Archuletta’s anticipated testimony and do not summarize any opinions as to which Dr.
Archuletta is expected to testify, other than a vague description of ‘including findings of injury to
Mr. Haney’s back.’” (DE 33 ¶ 4 (quoting DE 33-1 at 2)). Defendants note that while the
postmortem examination report “lists anatomic findings for multiple gunshot wounds” and “two
abrasions,” “states the cause of death is multiple gunshot wounds and the manner of death is
homicide,” and “discusses external examination, signs of death, injuries, and internal
examination, among other things,” it “does not contain opinions regarding which gunshot wound
Dr. Archuletta believes to have been the fatal wound, which officers fired which shots, where
Mr. Haney and the officers were positioned when the gunshots were fired, or anything regarding
the reasonableness and necessity of the officers’ actions, including firing weapons.” (DE 33 ¶¶
4-5).
Defendants argue that Haney’s disclosure and the attached postmortem examination
report do not include any summary of Dr. Archuletta’s testimony, and thus argue that Dr.
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Archuletta should not be permitted to testify as a retained expert; Defendants further argue that as
a non-retained expert, Dr. Archuletta should only be permitted to testify at trial regarding the
facts and opinions contained within the postmortem examination report. Defendants contend that
Dr. Archuletta should not be permitted to testify regarding which gunshot wound she believes
was the fatal wound; which officers fired which shots; where Mr. Haney and the officers were
positioned at the time the gunshots were fired; the reasonableness or necessity of the officers’
actions, including firing weapons; the circumstances under which the officers shot Mr. Haney; or
any details regarding the gunshots (other than the location of the wounds and abrasions).
Haney did not disclose a written report detailing the subject matter on which Dr.
Archuletta is expected to present evidence as an expert; nor did Haney disclose a summary of the
facts and opinions to which Dr. Archuletta is expected to testify. Haney thus has failed to meet
the requirements of Rule 26(a)(2)(C) for testimony by a non-retained expert, despite listing Dr.
Archuletta as such in the supplemental initial disclosures. Furthermore, Haney does not argue
that her failure to disclose any written report for Dr. Archuletta’s testimony as either a retained or
non-retained expert was substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). Haney has
opted not to respond to Defendants’ motion seeking to exclude Dr. Archuletta from offering any
expert testimony, and thus Haney apparently does not oppose such an exclusion. Accordingly,
Defendants’ motion will be GRANTED.
III. CONCLUSION
For the foregoing reasons, Defendants’ motion (DE 33) is GRANTED. Dr. Archuletta
may not offer expert testimony at trial; she may testify regarding her observations made during
the postmortem examination, as well as her statements and findings made in her postmortem
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examination final report.
SO ORDERED.
Entered this 20th day of May 2016.
/s/ Susan Collins
Susan Collins,
United States Magistrate Judge

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