Shepeard v. Labette Health Foundation, Inc. et al

Filing 126

MEMORANDUM AND ORDER granting in part and denying in part 115 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 3/7/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TERESA SHEPEARD, individually
and as administrator of the estate of
JOSHUA CARL SHEPEARD,
deceased,
Plaintiff,
vs.
LABETTE COUNTY MEDICAL
CENTER,
et al.,
Defendants.

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Case No. 11-1217-MLB-KGG

MEMORANDUM & ORDER
Before the Court is Plaintiff’s Motion to Compel seeking supplemental
information regarding Defendant’s non-retained expert witness disclosures
pursuant to Fed.R.Civ.P. 26(a)(2)(C). Having reviewed the submissions of the
parties, including the witness disclosures at issue, the Court GRANTS in part and
DENIES in part Plaintiff’s motion.
Fed.R.Civ.P. 26(a)(2)(C) mandates that if a non-retained expert witness “is
not required to provide a written report, this 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.” Defendant accurately points out that “there is
little to no guidance” in the context of case law as to “what constitutes a sufficient
summary under Fed.R.Civ.P. 26(a)(2)(C) that would obviate any danger of unfair
surprise” regarding the potential factual and/or opinion testimony of non-retained
witnesses. (Doc. 117-1 at 4.) Plaintiff generally argues, however, that Defendant
has “failed to identify the subject matter” on which certain witnesses are to testify
and “has made no attempt to summarize the facts and opinions to which the
witness is expected to testify.” (Doc. 116, at 2.)
As to experts A - F, H, and I, all of whom provided various types of medical
care to Plaintiff, Defendant has stated that they will “provide testimony on the facts
at issue in this case . . . .” (Id., at 6-7.) Clearly this is not a sufficient summary of
facts as contemplated by Rule 26 for the simple reason that not a single fact is
referenced beyond a passing, introductory reference to the general type of care the
individuals provided. Defendant does little more in regard to the opinions on
which these individuals will testify, generally referring to “medical opinions on all
aspects of the case” (witnesses A, B), “expert opinions on paramedic care”
(witnesses C, D, E, F), and “opinion testimony related” to care given as an air
ambulance nurse (witnesses H, I). (See id.) The Court finds this to be patently
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insufficient as no actual, specific opinions have been summarized or even
referenced. Plaintiff’s motion is GRANTED as to Defendant’s disclosures
regarding non-retained expert witnesses A - F, H, and I.
Conversely, the Court finds that Defendant’s disclosures regarding witnesses
G, L, and M are sufficient, albeit succinct. The individuals involved performed
specific, identifiable tasks relating to the decedent and/or the accident at issue – the
autopsy (witness G) and the responding to the accident (witnesses L, M). There
were also reports/documents generated by these witnesses, which should provide
Plaintiff with adequate information as to the involvement and relevant opinions of
these witnesses. (See Doc. 117-1, at 2, 3.) Plaintiff’s motion is DENIED as to
Defendant’s disclosures regarding non-retained expert witnesses G, L, and M.
Finally, Defendant has designated two of Plaintiff’s experts (witnesses J and
K). In it’s witness disclosure, Defendant merely states that it “cross-designates . . .
Plaintiff’s retained expert witnesses.” (Doc. 116, at 8.) Plaintiff argues that this
“does not relieve Defendant of its duty to follow the statute [sic] in making its
designation.” (Doc. 116, at 2.) Plaintiff continues that “if Defendant is going to
illicit opinions beyond those expressed in the designations or in the depositions [of
these witnesses], Plaintiff should have proper notice through compliance with the
statutory requirements.” (Id.) The Court agrees that Defendant’s designation of
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these two individuals is in noncompliance with the mandates of Fed.R.Civ.P. 26.
Plaintiff’s motion is, therefore, GRANTED as to Defendant’s disclosures
regarding non-retained expert witnesses J and K.

IT IS THEREFORE ORDERED that Plaintiff’s motion (Doc. 115) is
GRANTED in part and DENIED in part as more fully set forth above.
Dated at Wichita, Kansas, on this 7th day of March, 2013.

S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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