Riley et al v. PK Management, LLC et al

Filing 279

MEMORANDUM AND ORDER overruling without prejudice 243 Motion to Strike Expert Designations Or In The Alternative, Exclude Or Limit Expert Testimony. Signed by District Judge Kathryn H. Vratil on 1/7/2020. (smc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LEORA RILEY, et al.,

)
)
)
Plaintiff,
)
)
v.
)
)
PK MANAGEMENT, LLC, et al.,
)
)
)
Defendant.
)
____________________________________________)

CIVIL ACTION
No. 18-2337-KHV

MEMORANDUM AND ORDER
Leora Riley and Terri Ozburn bring putative class action claims against PK Management,
LLC, Central Park Investors, LLC, Aspen Companies Management, LLC and Central Park
Holdings, LLC. Second Amended Class Action Complaint (Doc. #204) filed July 15, 2019.
Plaintiffs allege that defendants failed to prevent and remedy uninhabitable living conditions at
Central Park Towers, an apartment building in Kansas City, Kansas. This matter is before the
Court on Plaintiff’s Omnibus Motion To Strike Expert Designations Or In The Alternative,
Exclude Or Limit Expert Testimony (Doc. #243) filed September 16, 2019. For reasons stated
below, the Court overrules plaintiffs’ motion.
Procedural Background
On July 26, 2019, defendants PK Management and Central Park Investors designated the
following individuals as non-retained expert witnesses: (1) Scott Rhine; (2) Ed Milberger;
(3) Terry Davis; (4) Claudio Carreon; (5) Michael Mason, Jr.; (6) Charity McClendon; and

(7) Devon Bryant. 1 (Doc. #243-1) at 2-5. The individuals so designated did not file expert
witness reports.
Also on July 26, 2019, defendants Aspen Companies Management and Central Park
Holdings joined their co-defendants in designating Michael Mason, Jr. and Claudio Carreon.
They also designated the following non-retained expert witnesses: (1) Michael Mosley; (2) Loren
Albright; (3) Josh Johnson; (4) Barry Weiss; and (5) Joe Reynolds. (Doc. #243-2) at 2-4. These
designated individuals did not file expert witness reports.
On September 16, 2019, plaintiffs filed their motion challenging all of defendants’ experts
except Davis and Mason. Plaintiffs’ Omnibus Motion To Strike Expert Designations Or In The
Alternative, Exclude Or Limit Expert Testimony (Doc. #243). Plaintiffs requested that the Court
strike defendants’ expert designations or, in the alternative, limit or exclude their testimony
pursuant to Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
Defendants opposed plaintiffs’ motion.2
After a hearing on November 13, 2019, U.S. Magistrate Judge Teresa J. James denied
plaintiffs’ motion to strike but ordered that by December 6, 2019, defendants serve supplemental
expert designations that fully comply with Rule 26(a)(2)(C). Clerk’s Minute Sheet – Motion

1

PK Management and Central Park Investors did not specify a subsection of Rule 26.
Because they designated non-retained experts, the Court presumes that they filed their designations
under Rule 26(a)(2)(C).
See Defendants Central Park Investors LLC And PK Management, LLC’s Brief In
Opposition To Plaintiffs’ Omnibus Motion To Strike Expert Designations Or, In The Alternative,
Exclude Or Limit Expert Testimony (Doc. #247) filed September 30, 2019; Defendants Aspen
Companies Management, LLC And Central Park Holdings, LLC’s Opposition To Plaintiff’s
Omnibus Motion To Strike Expert Designations Or In The Alternative, Exclude Or Limit Expert
Testimony (Doc. #248) filed September 30, 2019.
2

-2-

Hearing (Doc. #268). Judge James did not rule on plaintiffs’ alternative request that the Court
exclude or limit expert testimony.
In accordance with Judge James’s order, defendants served supplemental non-retained
expert designations. 3 See Exhibits A and B to Notice Of Partial Withdrawal Of Motion To
Exclude Or Limit Expert Testimony (Doc. #277) filed December 12, 2019. In addition, PK
Management and Central Park Investors withdrew their designations of Rhine, Carreon, Mason
and McClendon. Aspen Companies Management and Central Park Holdings withdrew their
designation of Carreon.
On December 12, 2019, plaintiffs withdrew their motion to exclude or limit expert
testimony of Scott, Milberger, Carreon, McClendon and unidentified technicians and individuals
who prepared the pre-Real Estate Assessment Center (“REAC”) inspections. Notice Of Partial
Withdrawal Of Motion (Doc. #277). Plaintiffs did not withdraw their motion as to other experts,
and did not file additional briefing. The Court therefore construes plaintiffs’ motion as one to
limit or exclude testimony of Bryant, Mosley, Albright, Johnson, Weiss and Reynolds.
Defendants did not respond to plaintiffs’ partial withdrawal of their motion or supplement
their briefs to respond to the parties’ supplemental disclosures.
Analysis
In light of defendants’ supplemental disclosures under Rule 26(a)(2)(C), plaintiffs must rebrief their motion to exclude or limit expert testimony. If they wish to challenge defendants’
supplemental non-retained expert witness designations, plaintiffs must directly address how such
testimony is deficient under Rule 702, Fed. R. Evid., and Daubert v. Merrel Dow Pharm., Inc., 509

3

Pursuant to a request from plaintiffs, defendants amended their supplemental
designations on December 9, 2019.
-3-

U.S. 579 (1998). In addition, plaintiffs must be mindful that Rule 702 and Daubert are primarily
addressed to the sufficiency of expert opinion. Like non-expert witnesses, witnesses who qualify
as experts by virtue of knowledge, skill, experience, training or education may generally testify as
to facts; they generally do not need to qualify their factual testimony under Rule 702 or Daubert,
and plaintiffs should take care to challenge only the opinion testimony of such witnesses.
IT IS THERFORE ORDERED that Plaintiff’s Omnibus Motion To Strike Expert
Designations Or In The Alternative, Exclude Or Limit Expert Testimony (Doc. #243) filed
September 16, 2019 is OVERRULED without prejudice.
Dated this 7th day of January, 2020 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

-4-