Mark LeTourneau et al v. Kansas Department of Transportation, et al

Filing 65

MEMORANDUM AND ORDER denying 54 Motion to Strike and Exclude Plaintiffs' Designation of Jan Roughan as an Expert Witness. Signed by District Judge Julie A. Robinson on 4/3/2017. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK LETOURNEAU ET AL.,
Plaintiffs,
Case No. 15-CV-2629-JAR

v.
VENTURE CORPORATION,
Defendant.

MEMORANDUM AND ORDER
Plaintiffs Mark LeTourneau and Deborah LeTourneau bring this action to recover
personal injury damages arising from a motorcycle accident where he alleges he lost control as
the result of uneven payment on the highway. Defendant Venture Corporation was hired by the
State of Kansas Department of Transportation to perform the improvements to the highway that
led to the alleged uneven pavement. Plaintiffs’ Complaint alleges a personal injury action,
negligence per se, and loss of consortium.1 This matter is before the Court on Defendant’s
Motion to Strike and Exclude Plaintiffs’ Designation of Jan Roughan of Roughan & Associates
as an Expert (Doc. 54). Defendant alleges Roughan is properly excluded because her expert
report does not comply with Fed. R. Civ. P. 26(a)(2). The motion to exclude is fully briefed, and
the Court is prepared to rule. For the reasons explained in detail below, the Court denies
Defendant’s motion.

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Doc. 1.

1

I.

Background
Plaintiffs disclosed to Defendant the expert testimony of Jan Roughan of Roughan &

Associates on August 8, 2016.2 Roughan offers testimony relating to a life care plan for Mark
LeTourneau. The life care plan offered included needs for past, present, and future procedural
intervention, home and facility care, medical care, diagnostic testing, orthotics and prosthetics,
psychological services, evaluations and treatment sessions, therapeutic equipment, aids for
independent functions, drugs and supplies, wheelchair and mobility needs, home and home
maintenance, and transportation. The life care plan included estimated cost for all needs.
On August 18, 2016, Defendant filed an objection to Roughan’s testimony on grounds
that it did not comply with the requirements of Fed. R. Civ. P. 26(a)(2)(B).3 In particular,
Defendant alleged that Roughan had (1) not signed the report, (2) had written “DRAFT 8/8/16”
in the corner of each page, (3) included internal references that were blank and had phrasing like
“awaiting response,” and (4) failed to state the basis and reasons for the opinions provided or the
facts or data she considered in forming the opinion.
On August 29, 2016, the parties held a mediation, which did not settle the case.
However, at the mediation, Defendant’s counsel discussed with Plaintiffs’ counsel, Michael
DeKruif, the deficiencies of Roughan’s expert report. Defendant alleges that Plaintiffs’ counsel
assured him that the expert disclosure was compliant, was accompanied by a letter explaining her
opinions, and was not a draft. Plaintiffs allege that their counsel assured Defendant’s counsel

2

Doc. 51. Plaintiffs disclosure of their experts was timely pursuant to the amended scheduling order in this
matter. Doc. 49.
3

Doc. 52. The scheduling order required that all technical objections related to the sufficiency of the
written expert disclosures be made within 14 days after service of the disclosure. Thus, this objection was timely
filed.

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that he would subsequently provide the signed introductory letter to the expert report as it may
have been left out of the initial disclosure in error.
On September 2, 2016, Defendant’s counsel sent Plaintiffs’ counsel an email following
up on the conversation from August 29.4 The email explained that if the deficiencies were not
remedied by September 7, 2016, Defendant would file a motion to exclude Roughan. On
September 7, 2016, Plaintiffs’ counsel emailed to Defendant’s counsel the cover letter to
Roughan’s report.5 The cover letter included Roughan’s qualifications, the stated basis and
factual considerations for her opinion, her signature, and language stating “[s]hould the need for
edits and/or amendments arise, or should additional information become available, I reserve the
right to amend the Life Care Plan in accordance with the same.”6 The motion considered herein
was filed following the objection on September 7, 2016 requesting that Roughan’s testimony be
excluded.7 According to Defendant’s counsel, this motion was filed at 5:45 p.m. before receipt
of the email including Roughan’s cover letter. On September 19, 2016, per defense counsel’s
request, Plaintiffs submitted Roughan’s report with the word draft omitted.8
Pursuant to the amended scheduling order in place at the time of the motion, Defendant
had until October 27, 2016 to disclose rebuttal experts.9 The Court has since granted another
extension of time to disclose rebuttal experts, and the deadline was set at January 13, 2017.10

4

Doc. 54-2.

5

Doc. 55-2. The email was time stamped as 5:40 p.m. central standard time. This was 3:40 p.m. for
Plaintiffs’ counsel, who was located in California.
6

Doc. 55-3.

7

Doc. 54.

8

Doc. 55-6.

9

Doc. 49.

10

Doc. 58.

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II.

Legal Standard
Defendant alleges that Roughan’s expert report does not meet the requirements of Fed. R.

Civ. P. 26(a)(2)(B), which governs the disclosure of expert witnesses. This rule requires that
unless otherwise stipulated to or ordered by the court, an expert 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. The report must contain:
(1) a complete statement of all opinions the witness will express and the basis and
reason for them;
(2) the facts or data considered by the witness in forming them;
(3) any exhibits that will be used to summarize or support them;
(4) the witness’s qualifications, including a list of all publications authored in the
previous 10 years;
(5) 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
(6) a statement of the compensation to be paid for the study and testimony in the
case.11
“If 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” at trial, “unless the
failure was substantially justified or is harmless.”12
“The determination of whether a Rule 26(a) violation is justified or harmless is entrusted
to the broad discretion of the district court.”13 In determining whether the sanction of excluding
an expert should be imposed, the district court should consider: (1) the prejudice or surprise to
the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice;
(3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving

11

Fed. R. Civ. P. 26(a)(2)(B)(i)–(vi).

12

Fed. R. Civ. P. 37(c)(1).

13

In re Indep. Serv. Org. Antitrust Litig., 85 F. Supp. 2d 1130 (D. Kan. 2000) (quoting Woodworker’s
Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999)).

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party’s bad faith or willfulness.14 The decision to exclude evidence is considered a drastic
sanction for a failure to comply.15
Pursuant to D. Kan. Rule 37.2, if a technical objection is served pursuant to Fed. R. Civ.
P. 26, counsel must confer or make a reasonable effort to confer before filing such an objection
or motion.
III.

Discussion
The Court finds that Jan Roughan’s testimony should not be excluded pursuant to Rule

37(c)(1). A number objections to Roughan’s report made pursuant to Rule 26(a)(2) are without
merit in light of the cover letter submitted to Defendant’s counsel on September 7, 2016.16 The
cover letter contains Roughan’s signature. The cover letter reserves the right for amendments or
edits should additional material become available, which negates the objection to an internal
reference that was blank and included the phrase “awaiting response.” The cover letter contains
the basis and reasoning for Roughan’s opinion, including nurse life care planning standards, the
nurse life planning process, review of medical records, information from Plaintiffs, review of
deposition testimony, consultation with a physiatrist, analysis of geographically relevant cost,
and computation of averages. Further, by September 19, 2016, Plaintiffs presented Defendant’s
counsel with the life care plan without the term draft in the corner.17 Although the life care plan
from September 19, 2016 contained the words “awaiting response” with an hourglass icon on the
table of content page, it did not appear anywhere in the substantive part of the life care plan other

14

Woodworker’s Supply, 170 F.3d at 993.

15

In re. Indep. Serv. Org. Antitrust Litig., 85 F. Supp. 2d at 1162 (citing Summers v. Missouri Pac. R.R.
Sys., 132 F.3d 599, 604 (10th Cir. 1997)).
16

Doc. 55-3.

17

Doc. 56-2. The life care plan presented on September 19, 2016 removed the word draft, but the date
“8/8/2016” was still in the left corner. It is not alleged nor has the Court found that the life care plan has been
changed since August 8, 2016 other than the removal of the word draft.

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than next to the names of the physicians reports consulted. Therefore, every technical objection
made by Defendant has been remedied.
Given the technical objections are without substantive merit, the Court is also not
persuaded that the factors warranting exclusion weigh in Defendant’s favor. First, the Court
finds that Defendant has suffered little prejudice as the result of Roughan’s initial report
disclosed on August 8. The only argument the Court can discern Defendant makes as to this
factor is that “Plaintiffs’ designation of Jan Roughan will require Defendant undertake additional
discovery to identify the basis for her opinions and the meaning behind her present report, at
Defendants’ own expense.”18 However, as the Court has explained, Roughan’s cover letter that
was submitted to Defendant’s counsel contained the basis for her opinion. While it was not
submitted until September 7, Plaintiffs’ counsel did comply with the deadline Defendant’s
counsel set before filing the instant motion. There is no need for Defendant to conduct discovery
into the basis underlying Roughan’s opinion. Further, the other objections regarding the
signature and the omission of the word draft are not prejudicial as these objections relate merely
to technical aspects of the opinion. There has been no substantive change to the report since
August 8, 2016, so the Court accepts the report as the final work from Roughan. Defendant does
not allege nor could it reasonably allege that it suffered prejudice in designating rebuttal experts
based on the objections to Roughan’s report.19 Thus, the prejudice resulting is neglible, so this
factor weighs against exclusion.
Second, the Court finds that any resulting prejudice has been remedied. Defendant
argues that it took three complaints for Plaintiffs to remedy Roughan’s report and the non18

Doc. 54 at 4.

19

Defendant initially had until October 27, 2016 to disclose rebuttal experts, which was more than 30 days
after the final September 19 report was submitted to Defendant’s counsel. The deadline was extended to January 13,
2017 for rebuttal expert disclosure, which was approximately four months after the final September 19 report.

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compliance has delayed discovery. As the Court explained above, the cover letter was sent on
September 7, which was twenty days after the initial objection was lodged on August 18.
Defendant’s counsel told Plaintiffs’ counsel that this motion would be filed September 7 if the
issues were not remedied. Plaintiffs’ counsel remedied the issues with the signature, the right to
amend, and the basis for the opinion with the submission of the cover letter on September 7.
Further, the objection relating to the word draft in the left hand corner has no bearing on the
substantive report, so it was not prejudicial. It was also remedied by September 19. Although
there have been extensions granted to discovery deadlines,20 there is no indication that this is
solely due to the objections to Roughan’s report. The delays to discovery from these technical
objections have been minimal. Thus, this factor also weighs against exclusion.
Third, there is no indication from Defendant the extent to which introducing Roughan’s
testimony would disrupt the trial. The objections to Roughan’s testimony have been remedied,
so it is unclear how Roughan’s testimony would disrupt the trial. Throughout the dispute herein,
the trial date has not been moved. Thus, this factor also weighs against exclusion.
Finally, there is no evidence of bad faith or willful misconduct. Plaintiffs’ counsel
supplied the cover letter that remedied most of the concerns on September 7, which was
compliant with the request made by Defendant’s counsel. Plaintiffs further submitted an
identical copy of the report with the word draft removed from the left hand corner on September
19. This factor again weighs against exclusion. Thus, because all four factors weigh against
exclusion, the Court finds Roughan’s testimony should not be excluded.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion to Strike
and Exclude Plaintiffs’ Designation of Jan Roughan as an Expert Witness (Doc. 54) is denied.

20

Docs. 49, 58.

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IT IS SO ORDERED.
Dated: April 3, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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