INDIANA PROTECTION AND ADVOCACY SERVICES COMMISSION v. COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION

Filing 197

ENTRY granting 182 MOTION to Exclude Testimony of Kathryn Burns. Signed by Judge Tanya Walton Pratt on 6/28/2011. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

INDIANA PROTECTION AND
)
ADVOCACY SERVICES COMMISSION, et al., )
)
Plaintiffs,
)
v.
)
)
COMMISSIONER, INDIANA DEPARTMENT )
OF CORRECTION,
)
)
Defendant.
)

No. 1:08-cv-1317-TWP-MJD

ENTRY
“The purpose of the [expert witness] report is to provide adequate notice of the
substance of the expert's forthcoming testimony and to give the opposing party time to
prepare for a response.” Meyers v. National R.R. Passenger Corp. (Amtrak), 619 F.3d 729,
734 (7th Cir. 2010). “The consequence of non-compliance with Rule 26(a)(2)(B) is
exclusion of an expert’s testimony . . . unless the failure was substantially justified or is
harmless.” Id. (internal quotations omitted).
Having considered the defendant’s motion to exclude testimony of Dr. Kathryn
Burns, the response to such motion, and the defendant’s reply, the court grants such
motion (Dkt. No. 182) as specified below:

1.

Dr. Burns has been identified by plaintiffs as an expert witness. Dr. Burns’

deposition was taken on May 9, 2010. Neither during the course of the deposition
or prior thereto have the bases for Dr. Burns’ expert opinion been sufficiently and
properly disclosed.

2.

An expert report is required to include the facts or data considered by an

expert in forming her opinions so that opposing counsel has notice before a
deposition as to what the witness will testify. The goal in this regard is “to shorten
or decrease the need for expert depositions.” Ciomber v. Cooperative Plus, Inc.,
527 F.3d 635, 642 (7th Cir. 2008)(internal quotation omitted). “The expert witness
discovery rules are designed to aid the court in its fact-finding mission by allowing
both sides to prepare their cases adequately and efficiently and to prevent the tactic
of surprise from affecting the outcome of the case.” Sherrod v. Lingle, 223 F.3d 605,
613 (7th Cir. 2000).
3.

The testimony of Dr. Burns, on the basis of the present record and insofar

as it would extend to her expert opinion concerning the adequacy of mental health
treatment provided to inmates by the Indiana Department of Correction, is
excluded, subject to the following circumstances under which such testimony will
be permitted:

a.

The plaintiffs make a full disclosure of the basis for Dr. Burns’ opinion in the
fashion prescribed by Rule 26(a)(2)(B) of the Federal Rules of Civil
Procedure.

b.

The foregoing supplemental disclosure is made not later than July 6, 2011.

c.

Dr. Burns shall be made available for further deposition to be taken by the
defendant at the plaintiffs’ expense not later than July 13, 2011.

IT IS SO ORDERED.

Date:

06/28/2011

Distribution attached.

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution to:
David A. Arthur
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Karen T. Davis
INDIANA PROTECTION AND ADVOCACY SERVICES
[e-mail]
Kenneth J. Falk
ACLU OF INDIANA
[e-mail]
Wade J. Hornbacher
INDIANA ATTORNEY GENERAL
[e-mail]
Jan P. Mensz
ACLU OF INDIANA
[e-mail]
Gavin Minor Rose
ACLU OF INDIANA
[e-mail]
David Ross Smith
INDIANA PROTECTION & ADVOCACY SVCS
[e-mail]