Wells v. Craig & Landreth Cars, Inc. et al

Filing 113

MEMORANDUM OPINION AND ORDER by Judge Charles R. Simpson, III granting 95 Motion to Strike and and Plaintiff is PRECLUDED from relying onthe opinion of proposed expert witness Don Coker in any motion, hearing, or trial in this case. cc:counsel (MLG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

DIANE WELLS

PLAINTIFF

v.

CIVIL ACTION NO. 3:10-CV-00376

CRAIG & LANDRETH CARS, INC., et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER

This matter is before the court on the motion of defendant Craig and Landreth Cars, Inc., to
strike plaintiff Diane Wells’ expert witness disclosure and preclude any testimony by Wells’
proposed expert, Don Coker (DN 95).
As set forth in Wells’ second amended complaint (DN 46), Wells alleges that in January
2010, she visited Craig and Landreth, a car dealership in Louisville, Kentucky, and signed a
purchase order for a 2007 Mitsubishi vehicle. Wells claims that she told Craig and Landreth that she
planned to apply for financing from a credit union and she did not fill out a credit application with
Craig and Landreth or ask for any assistance with financing from Craig and Landreth. Wells alleges
that Craig and Landreth nonetheless applied for credit for her from various financing companies,
each of whom denied credit for her. Wells brought claims against Craig and Landreth for violating
the Fair Credit Reporting Act and its accompanying regulations, the Equal Credit Opportunity Act,
the Kentucky Consumer Protection Act, and the Kentucky Uniform Electronic Transactions Act, and
for the tort of violating her privacy.1

1

Wells also asserted claims against various financial institutions and a credit reporting
agency. The claims against those defendants have been dismissed.

In an order dated August 31, 2011, Magistrate Judge James D. Moyer granted a motion made
by Wells for an extension of time to disclose an expert witness (DN 92). The order provided that
Wells would have until September 6, 2011, to disclose an expert and shall use the additional time
granted to ensure that her disclosure fully complies with all requirements under the Federal Rules
of Civil Procedure and any orders of this court as they relate to [her] duties in disclosing her
experts.” On September 6, 2011, Wells sent Craig and Landreth a document entitled, “Expert
Witness Disclosure.” That document stated that Don Coker would be serving as an expert witness
for Wells; a lengthy CV for Coker was attached. However, the document also informed Craig and
Landreth that Wells had not received a written report from the expert, that the expert had not yet
reviewed the depositions in the case, and that Wells did not yet have a list of all the cases in which
Coker testified during the last four years. The document provided that Wells would supplement the
disclosure when she had additional information to supply.
Craig and Landreth moved to strike Wells’ expert witness disclosure on the basis that Wells
failed to comply with the dictates of Rule 26 of the Federal Rules of Civil Procedure. Wells
responded to that motion by stating that she did not have the funding to pay Coker’s fee, and thus
Coker would not be testifying as an expert for her. Wells added that she was seeking an expert to
testify “without any cost or expense.”2
The motion by Craig and Landreth’s to strike Wells’ expert witness disclosures pertaining
to Coker will be granted. As Craig and Landreth point out, Wells’ purported expert witness

2

Wells also averred in her response papers that Craig and Landreth’s attorney had agreed
to allow Wells a reasonable period of time to search for a new expert, and Wells hoped that the
search would be completed by April 27, 2012. In Craig and Landreth’s reply papers, it stated that
it did not object to an extension of time until April 27, 2012, for Wells to obtain the services of a
new expert.
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disclosure of September 6, 2011, did not contain a written report prepared by the witness, as required
by Rule 26(a)(2)(B), containing, among other things, a statement of the opinions the witness will
express, the basis and reasons for the opinions, the facts or data considered by the witness, the
exhibits used to summarize or support the opinions. Accordingly, Wells will not be entitled to rely
upon Coker’s expert opinions in any motion, hearing, or trial in this case. FED. R. CIV. P. 37(c)(1).
Wells is further warned that, in making any other expert disclosures, she must comply with the
dictates of the Federal Rules and any other orders from this court pertaining to expert witness
disclosures. Failure to do so may result in those disclosures being struck and her being precluded
from relying upon the expert opinions.
For all the reasons stated above and the court being otherwise sufficiently advised, IT IS
HEREBY ORDERED AND ADJUDGED that the Defendant’s motion to strike the Plaintiff’s
expert witness Don Coker (DN 95) is GRANTED and Plaintiff is PRECLUDED from relying on
the opinion of proposed expert witness Don Coker in any motion, hearing, or trial in this case.

June 6, 2012

D03

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