Crites v. Haysville, Kansas, City of

Filing 108

MEMORANDUM AND ORDER granting in part and taking under advisement in part 85 Defendant's Motion to Exclude Expert Testimony; denying 87 Plaintiff's Motion to Exclude Expert Testimony. The court adopts the pretrial order, which shall not be modified hereafter except to prevent manifest injustice. Signed by District Judge John W. Broomes on 06/06/2018. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT L. CRITES,
Plaintiff,
v.

No. 16-1397-JWB

THE CITY OF HAYSVILLE, KANSAS,
Defendant.

MEMORANDUM AND ORDER
This matter came before the court on June 5, 2018, for a hearing on pending motions and
for a final pretrial conference. The court made several oral rulings at the hearing, which are
summarized below. This order additionally sets out procedures for trial and other matters discussed
with the parties at the June 5 hearing.
1. Scope of Plaintiff’s ADA1 claim. Plaintiff’s counsel confirmed that the ADA claim is
based on the City’s decision to refer Plaintiff for a fitness-for-duty (“FFD”) evaluation with Dr.
Nystrom. Plaintiff contends the City’s decision to require that evaluation violated the ADA
because it was not job-related and consistent with business necessity. Plaintiff is not asserting an
independent violation of the ADA arising from the City’s reliance on Dr. Nystrom’s conclusion.
See Doc. 98 at 1.
With respect to the City’s asserted justification for requiring the FFD evaluation, Plaintiff
concedes the City has not waived its assertion that Plaintiff was unable to perform the essential
functions of his job. Cf. Doc. 98 at 2;

1

The parties agreed at the hearing that for purposes of trial, references to the Rehabilitation Act are unnecessary.

2. Damages. Plaintiff’s claim for liquidated damages under the FMLA (Doc. 59 at 33) is
no longer an issue in the case in view of the court’s dismissal of the FMLA claim.
The court reserves its ruling concerning presentation of back pay and front pay to the jury
until after completion of briefing on the motions in limine. Cf. Fed. R. Civ. P. 39(c) (“in an action
not triable of right by a jury, the court, on motion or on its own … may try any issue with an
advisory jury”).
3. Admission of Exhibits at Trial. If the parties agree upon the admissibility of an exhibit
in advance, the exhibit may be used at trial prior to formal admittance. Any such exhibits may then
be formally admitted, as a group, at the conclusion of the testimony of a witness who discussed
the exhibits. Any exhibit as to which no witness testified will not be admitted.
4. Witness Disclosures and Objections. Plaintiff will provide the City with his final list
of witnesses by the end of business June 6, 2018. Any objection thereto by the City is due June 7,
2018.
5. The City’s Motion to Exclude Expert Testimony (Doc. 85.)
A. Dr. Crosby. The court grants the City’s motion insofar as it seeks to exclude opinion
testimony from Dr. Crosby that goes beyond Crosby’s treatment of Plaintiff.
Fed. R. Civ. P. 26(a)(2)(B) requires that an expert disclosure be accompanied by a written
report if the witness is “one retained or specially employed to provide expert testimony in the
case.” “In the District of Kansas, … it has long been recognized that treating physicians are not
subject to this requirement to the extent they offer opinions on matters within the scope of their
treatment of an individual.” Richard v. Hinshaw, No. 09-1278-MLB, 2013 WL 6709674, at *1 (D.
Kan. Dec. 18, 2013). “Opinions within the scope of [treatment] may extend to causation of an
injury, diagnosis, prognosis, and other opinions arising out of and related to the treatment.” Id.

2

“When a physician's proposed testimony extends beyond facts made known during treatment and
beyond opinions relating to the course of care and treatment, the witness may be subject to the
requirement of a written report. For example, a treating physician who is asked to review to
medical records of another provider in order to render an opinion about the propriety of that
provider's care would likely be considered specially retained for trial.” Id. (citing Wreath v. United
States, 161 F.R.D. 448, 450 (D. Kan. 1995)).
Dr. Crosby’s opinions about Dr. Nystrom’s conclusions and methods did not arise out of
or relate to Crosby’s care and treatment of Plaintiff. The court finds such opinions trigger the
requirement for a written report under Rule 26(a)(2)(B). No written report was provided. Under
Rule 37(c)(1), if a party fails to provide information required by Rule 26(a), the party is not allowed
to use that information at trial “unless the failure was substantially justified or is harmless.” See
Paliwoda v. Showman, No. 12-2740-KGS, 2013 WL 5938027, *7 (D. Kan. Nov. 6, 2013) (burden
is on party failing to make disclosure to show it was harmless or substantially justified). In
determining whether a failure is harmless, the court considers: (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 party’s
bad faith or willfulness. Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002).
The court is not persuaded the lack of a written report from Dr. Crosby was substantially
justified or harmless. A written report must include a complete statement of all opinions the witness
will express and the reasons for them, as well as all facts and data considered by the witness.
Haysville was not provided any of that information, and it went into Dr. Crosby’s deposition
without notice that his opinions would go beyond his treatment of Plaintiff. Haysville was entitled
to such notice before it deposed the witness, both to prepare for its questioning of him and to make

3

decisions about its own witnesses. Given the late disclosure, there is no opportunity to re-open
discovery or otherwise cure the lack of notice. Although there is no suggestion of bad faith by
Plaintiff in failing to provide a report, the motion to exclude opinions by Dr. Crosby beyond the
scope of his treatment of Plaintiff will be granted.
B. Dr. Leenay. The court will reserve ruling with respect to Dr. Leenay’s testimony until
after briefing is completed on the motions in limine.
6. Plaintiff’s Motion to Exclude Expert Testimony (Doc. 87.) Plaintiff’s motion to
exclude the testimony of Dr. Nystrom is denied. Plaintiff contends the testimony will not be helpful
to the trier of fact. The court finds the testimony is admissible under the standards of Fed. R. Evid.
401 (evidence is relevant if it has any tendency to make a fact more or less probable and the fact
is of consequence in determining the action). Dr. Nystrom’s testimony concerns an evaluation
conducted shortly after Haysville decided to require the FFD and it may tend to support Haysville’s
asserted justification for the FFD. Additionally, the testimony may tend to disprove (or prove)
Plaintiff’s asserted damages from the allegedly wrongful referral. The court concludes the
testimony may be helpful to the trier of fact on these issues.
7. Voir Dire/ Opening Statements. After the court’s introductory remarks and questions,
the parties will present their opening statements to the entire jury panel. After opening statements,
the court will complete its voir dire questioning. Each party will then have 20 minutes to complete
its own voir dire examination of the panel.
8. Trial Schedule. The court will meet with counsel on the morning of trial, June 19, 2018,
at 8:30 a.m. Jury selection will begin at 9:00 a.m. The normal trial schedule will generally be from
9:00 a.m. to 12:00 p.m., and from 1-4:30, with a 15-minute recess in the morning and in the
afternoon. The schedule may vary somewhat depending on presentation of witnesses. After

4

counsel confer with one another, any issues that need to be addressed by the court outside the
hearing of the jury should be raised prior to 9:00 a.m., during a recess, or after conclusion of the
day’s evidence, so the jury is not kept waiting.
Based on the claims and evidence to be presented, the court anticipates the parties will
complete their presentation of evidence by Thursday, June 21, 2018, and that the jury will be
instructed on Friday morning, June 22, 2018.
Conclusion.
The court adopts the foregoing pretrial order, which shall not be modified hereafter except
to prevent manifest injustice.
Defendant’s Motion to Exclude Expert Testimony (Doc. 85) is GRANTED IN PART and
TAKEN UNDER ADVISEMENT IN PART. The motion is granted with respect to any opinions
by Dr. Crosby beyond the scope of his treatment of Plaintiff.
Plaintiff’s Motion to Exclude Expert Testimony (Doc. 87) is DENIED.
IT IS SO ORDERED this 6th day of June, 2018.
__s/ John W. Broomes_____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

5