Humphreys & Partners Architects, L.P. v. HRB Louisville LLC et al

Filing 136

MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Colin H. Lindsay on 12/20/2016. For the reasons set forth, Plaintiff's 121 Motion to Compel is GRANTED IN PART AND DENIED IN PARTY. HRB Defendants SHALL DISCLOSE Diestelkamp's written report by 1/15/2017. The parties SHALL SUBMIT a joint proposed amended scheduling order by 1/15/2017. cc: Counsel(RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:14-cv-706-CRS-CHL

Humphreys & Partners Architects, L.P.,

Plaintiff,

v.
HRB Louisville, LLC, et al.,

Defendants.
Memorandum Opinion and Order

Humphreys & Partners Architects, L.P. (“Humphreys”) moved to compel the HRB
Defendants’1 compliance with the expert report requirements of Rule 26. (DN 121). The HRB
Defendants responded in opposition to the motion. (DN 124). Humphreys filed a reply. (DN
125). The HRB Defendants filed a notice of supplemental case information. (DN 126).
For the reasons below, the Court will grant in part and deny in part the motion to compel.
Background
On April 19, 2016, the HRB Defendants filed their expert witness disclosure. (DN 116).
The disclosure lists Eric H. Sussman, CPA; David E. Shipley; Robert C. Greenstreet, Ph.D; and
Amy S. Diestelkamp. Id. at 2 – 6. The disclosure included reports by Sussman, Shipley, and
Greenstreet. (DNs 116-1; 116-2; & 116-3).
That same day, Humphreys filed this motion. In its reply, Humphreys says that the HRB
Defendants provided the additional information sought with regard to Shipley. Pl.’s Reply 2.
Now, Humphreys argues that Sussman’s report is incomplete and that the HRB Defendants
should have disclosed an expert report for Diestelkamp.

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The HRB Defendants include: HRB Louisville LLC; Royal/Buck Company LLC; HRB
Louisville Member LLC; Buck SH Company, LLC; The John Buck Company, LLC; Buck
Development Louisville, LLC; Buck Development, LLC; and TJBC, Inc.
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Discussion
Rule 26(a)(2) governs the disclosure of expert testimony. In general, a party must
disclose the identity of any expert witness it may use at trial. Fed. R. Civ. P. 26(a)(2)(A).
(B) Witnesses Who Must Provide a Written Report.
Unless otherwise stipulated or ordered by the court, this 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 in the
case or one whose duties as the party’s employee regularly involve giving expert
testimony.
Fed. R. Civ. P. 26(a)(2)(B) (emphasis added). For a witness who must provide a written report,
the report must contain “a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition.” Fed. R. Civ. P. 26(a)(2)(B)(v). For a witness
who is not required to provide a written report, the disclosure must “state the subject matter on
which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or
705; and a summary of the facts and opinions to which the witness is expected to testify.” Fed.
R. Civ. P. 26(a)(2)(C).
Then, “[i]f a party fails to make a disclosure required by Rule 26(a), any other party may
move to compel disclosure and for appropriate sanctions.” Fed. R. Civ. P. 37(a)(3)(A). In
addition, under Rule 37(c)(1), a party who fails to provide information as required by Rule 26 “is
not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at
a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); see
also, Dickenson v. Cardiac & Thoracic Surgergy of E. Tenn., 388 F.3d 976, 983 (6th Cir. 2004)
(“The exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1)
unless non-disclosure was justified or harmless.”).
Analysis
1. Sussman’s expert report

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Sussman’s expert report lists fifty-three cases in which he has participated. Pl.’s Mem. 9
(DN 121-1); Defs.’ Resp. 4 n.2. Sussman’s first supplement lists twenty-one cases. (DN 120-1).
Sussman’s second supplement lists nineteen cases. (DN 124-2).
Humphreys argues that the Sussman’s first supplement is deficient because it does not list
case numbers for all fifty-three cases listed in Sussman’s original report. Pl.’s Mem. 9. For
example, Humphreys takes issue with the lack of specificity for the cases in California courts.
Id. at 10 (“Physically searching for case files would be an unreasonable task: there are 38
courthouses for just the Los Angeles Superior Court.”).
The HRB Defendants respond that the second supplemental disclosure provides “full case
citations for those cases in which the retained experts provided testimony during the past four
years, in an effort to resolve Plaintiff’s objection to locating this case information
independently.” Defs.’ Resp. 2. According to the HRB Defendants, the second supplemental
disclosure “resolves all objections to the completeness of the testifying histories for the HRB
Defendants’ specially retained expert witnesses.” Id.2
In its reply, Humphreys argues that Sussman’s report is deficient because he has not
provided courts or case numbers for twenty-eight cases identified in his original report. Pl.’s
Reply 2. Humphreys argues that he has the ability to produce the courts and case numbers for
these twenty-eight cases. Id. at 4.

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The HRB Defendants did not move for leave to file a sur-reply. In a notice of
supplemental authority, the HRB Defendants provided a list of “full case style, case numbers,
and tribunals for the cases in which the HRB Defendants’ experts testified as an expert at trial or
by deposition during the previous 4 years.” Notice Supp. Case Information (DN 126). This
notice of additional case information appears to provide the same information as Sussman’s
second supplemental disclosure. Compare DN 124-2 with DN 126-1.
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Humphreys relies heavily on the undersigned’s January 12, 2016 memorandum opinion
in Crouch v. John Jewell Aircraft, 3:07-cv-638-CHL (DN532). In that case, the undersigned
wrote:
Rule 26 requires more than attempted compliance; it requires mandatory
disclosure of all deposition and trial testimony within the past four years, together
with sufficient information about where that testimony was given to enable the
opposing party to gain access to it. Ater ex rel. Ater v. Follrod, 2004 WL
6042439 at *3 (S.D. Ohio Nov. 10, 2004). In order to be useful, ‘this listing must
include, at a minimum, the courts in which the testimony occurred, the names of
the parties and the case numbers, and must indicate whether the testimony was
given at deposition or at trial.’ Id. at *1 (citing Coleman v. Dydula, 190 F.R.D.
316, 318 (W.D. N.Y. 1999); Nguyen v. IBP, Inc., 162 F.R.D. 675, 682 (D.Kan.
1995)).
Id. at 7.
Contrary to Humphreys’s assertions, the opinion in Crouch does not show “how strictly
Rule 26(a)(2)(B)(v) is enforced.” Pl.’s Mem. 9. The Court did exclude that expert witness from
testifying, but that expert witness’s failure to supplement his report with a full list of trial or
deposition testimony was among other reasons the Court excluded his testimony. See, e.g.,
Mem. Op. 19 (concluding that the expert witness’s proffered testimony was irrelevant under
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). Here, Humphreys has not
argued that Sussman’s testimony is inadmissible under Daubert.
In its reply, Humphreys takes issue with the HRB Defendants’ claim “in a footnote that
the original list contained cases ‘more than four years ago or in which he did not provide
testimony … .’” Pl.’s Reply 4. The HRB Defendants did make this claim in a footnote, but in
the body of their response, they also said, “the additional supplemental disclosures filed herewith
contain all case citations for cases in which the experts testified at trial or by deposition during
the previous four years.” Defs.’ Resp. 4. Humphreys did not challenge this assertion: that the
second supplemental disclosure contains all case citations for which Sussman testified at trial or

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by deposition during the previous four years. Instead, Humphreys says, without citation to any
authority, that Sussman “should be required to provide the court and case numbers for every case
on his curriculum vitae.” Pl.’s Mem. 4.
The rule requires disclosure of “a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by deposition.” Fed. R. Civ. P. 26(a)(2)(B)(v)
(emphasis added). It does not require the court and case number for every case listed on an
expert witness’s curriculum vitae, and Humphreys has pointed to no authority that suggests
otherwise.
The Court assumes that the HRB Defendants’ assertion in its response that Sussman’s
second supplemental list provided “all case citations for cases” in which he testified at trial or by
deposition in the last four years is true because Humphreys did not challenge that assertion. The
Court will note that said information should have been included with Sussman’s initial report,
and Humphreys should not have been put to the task of prodding the HRB Defendants to supply
it.
Accordingly, the Court will deny as moot Humphreys’s motion to compel compliance of
Sussman’s expert report with Rule 26(a)(2)(B)(v).
2.

Whether Diestelkamp is retained or specially employed to provide expert
testimony in this case

Diestelkamp did not provide a written report. The HRB Defendants’ expert disclosure
says:
(1) Amy S. Diestelkamp is the General Manager of the Cardinal Towne student
housing development located adjacent to the University of Louisville campus
in Louisville, Kentucky. Ms. Diestelkamp has also served as property
manager for other privately developed student housing complexes around the
country.
(2) Ms. Diestelkamp is expected to present evidence based on her experience as a
property manager for privately owned student housing projects, including in
Louisville, Kentucky, regarding the factors that influence students to choose
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to rent an apartment in one student housing development as opposed to
another.
(3) Ms. Diestelkamp is not receiving any compensation in this case.
DN 116 at 6.
Humphreys argues that Diestelkamp’s disclosure is deficient because she is a specially
employed witness who did not file an expert report. Pl.’s Mem. 11 – 14. In the alternative,
Humphreys argues that even if Diestelkamp is not a specially employed witness, the summary of
her testimony is deficient under Rule 26(a)(2)(C). Id. at 14 – 16.
The HRB Defendants respond that Diestelkamp is not required to provide a written report
because she is not retained or specially employed. Defs.’ Resp. 7.

They also argue that

Diestelkamp’s summary is sufficient under Rule 26(a)(2)(C). Id. at 7 – 8.
In support of their arguments, Humphreys and the HRB Defendants both cite Downey v.
Bob’s Discount Furniture Holdings, Inc., 633 F.3d 1 (1st Cir. 2011) and N. Am. Rescue Prods.,
Inc. v. Bound Tree Med., LLC, No. 2:08-cv-101, 2009 WL 4110889 (S.D. Oh. Nov. 19, 2009).
The undersigned will briefly discuss those cases.
In Downey, the plaintiff’s expert was an exterminator who inspected and treated the
plaintiff’s home for bedbugs. 633 F.3d at 4. The district court excluded the exterminator’s
testimony for his failure to provide a written report under Rule 26(a)(2)(B). Id. at 5.
On appeal, the First Circuit discussed various factors that indicate whether an expert
witness is “retained or specially employed” under Rule 26(a)(2)(B). Id. at 6. The considerations
include whether the individual holds “himself out for hire as a purveyor of expert testimony” and
whether the expert charges a fee for the testimony. Id. at 6. Beyond that,
In order to give the phrase “retained or specially employed” any real meaning, a
court must acknowledge the difference between a percipient witness who happens
to be an expert and an expert who without prior knowledge of the facts giving rise
to litigation is recruited to provide expert opinion testimony. It is this difference,
we think, that best informs the language of the rule.
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Id. at 6. Using these factors, the court of appeals held that the district court erred in finding that
the exterminator was a specially employed witness required to file a written report under Rule
26(a)(2)(B).

Id. at 8.

The court of appeals found the district court’s exclusion of the

exterminator was an abuse of discretion and remanded for a new trial. Id.
In North American Rescue Products, the defendant’s expert was an “occasional client or
customer” of the defendant, but he did not “have in-depth familiarity with respect to all of the
products at issue in this action.” 2009 WL 4110889 at *4. The expert “also testified that he did
not have any personal knowledge of the issues presented in this case.” Id.
In the discussion, the magistrate judge said, “whether an expert report is required depends
on whether the expert’s opinion will be limited to testimony based on personal knowledge of the
factual situation or whether the testimony will be based on information utilized to develop
specific opinion testimony—that is, information obtained in anticipation of litigation.” 2009 WL
4110889 at *4. The magistrate judge ruled that the expert was specially employed because he
had been provided information in anticipation of litigation. Id. at *4. The magistrate judge
concluded that if the defendant intended to call the expert, he would be required to file a report.
Id. The district judge affirmed this ruling. 2010 WL 1873291 (S.D. Oh. May 10, 2010).
Here, some facts lean toward a finding that Ms. Diestelkamp is not a “specially
employed” witness required to file a written report under Rule 26(a)(2)(B). It does not appear
that Ms. Diestelkamp holds herself out as a purveyor of expert testimony in the campus student
housing industry because she is a property manager at a competing student housing complex.
The disclosure indicates that she “is not receiving any compensation in this case.” DN 116 at 6.
Moreover, the HRB Defendants say that Ms. Diestelkamp has “not been provided with any
material to review in connection with her opinions.” Defs.’ Resp. 6.

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But, the inquiry does not end there. The disclosure does not provide an explanation of
how Ms. Diestelkamp could be considered a “percipient witness who happens to be an expert”
rather than someone who has been recruited to provide expert opinion testimony. See Downey,
633 F.3d at 6. Nor does the disclosure offer a window into the expert opinion she may offer such
that opposing counsel could reasonably prepare to depose her. See, e.g., DN 116 at 6 (asserting
that “Ms. Diestelkamp is expected to present evidence based on her experience as a property
manager for privately owned student housing projects, including in Louisville, Kentucky,
regarding the factors that influence students to choose to rent an apartment in one student
housing development as opposed to another.”). And, the disclosure offers no window into
whether Ms. Diestelkamp has personal knowledge of and participated in the underlying events.
Ms. Diestelkamp appears to have knowledge of the campus student housing industry, and
she may indeed qualify as an expert in that regard. But, counsel’s assertion in the brief that “Her
opinions are limited to the factors she observes to influence students’ housing decisions” is
insufficient to show that she is not retained or specially employed in this case. Unlike the
exterminator in Downey, who witnessed the bedbug infestation about which he later provided
expert causation testimony, it is unclear how Ms. Diestelkamp could be considered a “percipient
witness” in this copyright infringement lawsuit without more detail as to whether she has
personal knowledge of and participated in the underlying events. See 633 F.3d at 6. Rather, it
appears that Diestelkamp is someone “who without prior knowledge of the facts giving rise to
litigation” has been recruited to provide expert opinion testimony in this matter. See id.
The undersigned concludes that Ms. Diestelkamp has been specially employed to provide
expert testimony in this case. Accordingly, if the HRB Defendants intend to call her as a witness
at trial, she must provide a written report in accordance with Rule 26(a)(2)(B).

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Order
The Court GRANTS in part and DENIES in part the Plaintiff’s motion to compel (DN
121).
The Court DENIES AS MOOT the plaintiff’s motion to the extent it seeks an order that
the HRB Defendants to disclose an expert report for Sussman that complies with Rule
26(a)(2)(B). The Court GRANTS the plaintiff’s motion to the extent it asks for a ruling that
Diestelkamp is a specially employed expert under Rule 26(a)(2)(B). If the HRB Defendants
intend to call Diestelkamp as an expert witness at trial, the HRB Defendants SHALL
DISCLOSE Diestelkamp’s written report in accordance with Rule 26(a)(2)(B) on or before
January 15, 2017.
The Court previously stayed expert witness discovery and the dispositive motion
deadline. Order Mar. 7, 2016 (DN 110). Counsel for all parties SHALL SUBMIT a joint
proposed amended scheduling order on or before January 15, 2017.
Going forward, the Court’s standing order regarding discovery disputes applies. No
party may file a discovery-related motion without first having participated in a telephonic
status conference regarding the dispute.

Cc: counsel of record
15.0

December 20, 2016

Colin Lindsay, MagistrateJudge
United States District Court

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