MCATEE et al v. BUCA RESTAURANTS, INC.
Filing
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ORDER denying 53 Defendant's Motion to Strike Plaintiffs' Proposed Expert. Signed by Judge Sarah Evans Barker on 10/13/2011. (PGS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CRAIG MCATEE and LEE ANN
MCATEE,
Plaintiffs,
vs.
BUCA RESTAURANTS, INC., d/b/a
BUCA DI BEPPO,
Defendant.
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1:10-cv-1090-SEB-DKL
ORDER DENYING DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’
PROPOSED EXPERT
This cause is now before the Court on Defendant’s Motion to Strike Plaintiffs’
Proposed Expert [Docket No. 53], filed on September 15, 2011. For the reasons detailed
below, the motion is DENIED.
Factual Background
Plaintiffs, Craig McAtee and Lee Ann McAtee, bring this claim against Defendant,
Buca Restaurants, Inc., d/b/a Buca Di Beppo (“Buca”), alleging that Defendant was
negligent in maintaining the premises of its restaurant, and that, as a result, Mr. McAtee
slipped and fell, suffering serious and permanent physical injuries.
Plaintiffs were ordered to serve disclosures and reports pursuant to Federal Rule of
Civil Procedure 26(a)(2) by July 1, 2011. On July 6, 2011,1 Plaintiffs disclosed a number
of experts, but did not include any experts in the field of toxicology. Plaintiffs’ final
witness and exhibit lists were due on August 10, 2011, which were filed with the Court on
that date and also did not include a toxicology expert.
On September 1, 2011, Defendant served disclosures and reports from Charles
Hamburg, a professor in hospitality management and owner of Creative Hospitality
Associates, LLC. Mr. Hamburg, whose company recently created an alcohol awareness
program used to train and certify hotels, restaurants, and food service establishments in
the State of Illinois, opined that Mr. McAtee’s consumption of one alcoholic beverage
before entering Defendant’s establishment and further consumption of two alcoholic
beverages during dinner could have resulted in a loss of physical coordination, loss of
balance, unsteady gait, irritability, and slowed thinking.2
On September 2, 2011, the day after receiving Mr. Hamburg’s report, Plaintiffs
consulted for the first time with Daniel McCoy, Ph.D., the expert Defendant now seeks to
strike. On September 6, 2011, Dr. McCoy provided a report to Plaintiffs opining that Mr.
McAtee’s blood alcohol level would not have exceeded .01 or .02 as a result of the
alcohol consumption, that he would not have been intoxicated, and that he would not have
suffered the physical effects described by Mr. Hamburg. Plaintiffs provided a
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Defendant notes that these disclosures were made after the July 1, 2011 deadline, but
none of those disclosures are the subject of the instant motion to strike.
2
It does not appear that Mr. Hamburg has any training in medicine or toxicology.
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supplemental disclosure to Defendant that same day, identifying Dr. McCoy as an expert
in the area of toxicology, a field which includes the assessment of blood alcohol levels
and the resulting impairments that occur as a result of alcohol consumption. According to
Plaintiffs, Dr. McCoy was identified as a rebuttal expert in response to the expert report
of Mr. Hamburg. Defendant now moves to strike Dr. McCoy as a witness, arguing that
the disclosure of his report is untimely because Plaintiffs should have been aware at the
time they filed their initial disclosures that the question of whether Mr. McAtee was
impaired or intoxicated could potentially be at issue in this litigation, and thus, should
have identified a toxicology expert at that point.
Here, although the parties’ Case Management Plan set deadlines for the parties’
initial disclosures and reports required under Rule 26(a)(2)(B), it did not provide a
deadline for disclosing rebuttal expert witnesses. Absent a stipulation or a court order
regarding the time at which a rebuttal expert must be disclosed, Rule 26(a)(2)(D) provides
that where “the evidence is intended solely to contradict or rebut evidence on the same
subject matter identified by another party under Rule 26(a)(2)(B) or (C),” such
disclosures must be made “within 30 days after the other party’s disclosure.” Fed. R. Civ.
Pro. 26(a)(2)(D)(ii). As discussed above, Defendant filed its expert witness disclosures
on September 1, 2011 and Plaintiffs disclosed their rebuttal witness on September 6,
2011, well within the 30-day deadline. Thus, the only question is whether Plaintiffs were
in fact disclosing a rebuttal witness or whether Dr. McCoy’s testimony should have been
disclosed as part of Plaintiffs’ case in chief.
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“‘The proper function of rebuttal evidence is to contradict, impeach or defuse the
impact of the evidence offered by an adverse party.’” Peals v. Terre Haute Police Dept.,
535 F.3d 621, 630 (7th Cir. 2008) (quoting U.S. v. Grintjes, 237 F.3d 876, 879 (7th Cir.
2001)). However, if the testimony is offered only as additional support to an argument
made in a party’s case in chief, it cannot be considered rebuttal evidence. See Peals, 535
F.3d at 630. “The plaintiff who knows that the defendant means to contest an issue that is
germane to the prima facie case (as distinct from any affirmative defense) must put in his
evidence on the issue as part of his case in chief.” Braun v. Lorillard, Inc., 84 F.3d 230,
237 (7th Cir. 1996).
Upon review, we find that Dr. McCoy’s report is within the scope of a proper
rebuttal witness. It responds only to the conclusions of Mr. Hamburg regarding the
possibility that Mr. McAtee’s consumption of one alcoholic drink before dinner and two
during dinner could have resulted in impairment. Dr. McCoy reviewed Mr. Hamburg’s
report, and, based on his training and experience, opined that, contrary to Mr. Hamburg’s
opinion, a man of Mr. McAtee’s height and weight would not have been impaired as a
result of consuming three alcoholic drinks. Dr. McCoy’s report narrowly focuses on that
one issue raised in Mr. Hamburg’s report and does not address any other aspect of
Plaintiffs’ case.
Defendant’s argument that Plaintiffs’ counsel was “well aware” of the potential
issue of Mr. McAtee’s possible intoxication or impairment at the time of his alleged
injury and therefore should have included Dr. McCoy in Plaintiffs’ initial disclosures is
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unavailing. Our review of the record leaves us unconvinced that Plaintiffs should have
been aware that this issue would be in contention. Defendant argues that the June 8, 2011
deposition testimony of the manager of Buca, Richard Antonio “Chase” Romero, should
have alerted Plaintiffs to the issue. The pertinent part of Mr. Romero’s testimony recites
as follows:
Q:
When you saw Mr. McAtee did he appear intoxicated at all?
A:
He made a statement to the paramedics that he had a few drinks. The
state that I saw him in, you know, just based on my – I mean, when I
see someone that’s fallen or is shook up for whatever reason in life,
based upon my experience as a police officer, I look back and reflect
and go, is everything okay here, what’s going on. You know, from
just his overall condition, he just looked injured. I mean, I wasn’t
assessing whether or not he had been drinking. I wasn’t really –
Q:
Was he slurring his words or anything?
A:
A little bit, but it may have been because of the fall. I don’t know
why he would have been.
In addition to this testimony, Mr. Romero also stated that his staff would not be allowed
to serve alcohol to a patron who appeared intoxicated. Exh. D, Romero Dep. at 57-58.
Although Mr. Romero was questioned about possible intoxication, this deposition
testimony alone should not necessarily have led Plaintiffs’ counsel to reasonably believe
that Mr. Romero would testify that Mr. McAtee was intoxicated on the night of the
incident or otherwise alerted Plaintiffs’ counsel to the fact that Defendant intended to
raise the issue of Mr. McAtee’s possible impairment or intoxication. Our conclusion is
bolstered by the fact that Defendant’s discovery responses, provided to Plaintiffs on
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February 21, 2011, do not contain any mention of possible impairment or intoxication.
Specifically, Defendant did not mention alcohol or impairment in response to
Interrogatory No. 5, which requested each and every act which Defendant was asserting
as fault on the part of Mr. McAtee. Defendant has failed to amend its responses to
include an allegation of intoxication or impairment as fault on the part of Mr. McAtee.
For these reasons, we find that Dr. McCoy is a proper rebuttal witness whom
Plaintiffs timely disclosed in accordance with Rule 26(a)(2)(D). Accordingly,
Defendant’s Motion to Strike is DENIED.
IT IS SO ORDERED.
10/13/2011
Date: ___________________________
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
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Copies to:
Bruce P. Clark
BRUCE P. CLARK & ASSOCIATES
bpc@bpc-law.com
Jennifer E. Davis
BRUCE P. CLARK & ASSOCIATES
jed@bpc-law.com
Nicholas Calvin Deets
HOVDE LAW FIRM
ndeets@hovdelaw.com
John M. Krug
KOPKA PINKUS DOLIN & EADS, LLC
jmkrug@kopkalaw.com
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