Fuqua v. United States of America
Filing
72
MEMORANDUM OPINION & ORDER granting in part 64 Motion to Strike. Signed by Chief Judge Thomas B. Russell on 10/6/2011. cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:09-CV-212
PATRICIA FUQUA
PLAINTIFF
V.
UNITED STATES OF AMERICA and
THE CITY OF OAK GROVE
DEFENDANTS
MEMORANDUM OPINION & ORDER
Plaintiff Patricia Fuqua has filed a Motion to Strike and/or Amend Scheduling Order (DN
64). Defendant has filed a response (DN65). Plaintiff has filed a reply (DN 66). For the
following reasons, Plaintiff’s Motion to Strike is GRANTED IN PART.
BACKGROUND
Plaintiff filed her third amended complaint on January 10, 2011 for a declaration of rights
as to ownership of a strip of land upon which the Defendant United States operates a railroad and
as to whether Naomi Lane is a public road. Pursuant to the Court’s Scheduling Order, the
Defendants were to identify its experts by March 2, 2011 and complete discovery by April 15,
2011. The United States designated Scott Vaughan, a civil engineer, as its expert witness in
February 2011. Subsequently, Vaughan supplemented his expert report on June 8, 2011.
In a motion for summary judgment, the United States disclosed three additional witnesses
on May 2011. These witnesses include (1) Scott Giller, a land surveyor for the Corps of
Engineers; (2) George F. Williamson III, a real estate attorney for the Corps of Engineers who
handled the acquisition of the railroad property; and (3) James Gilkey, a federal employee who
oversees all maintenance for Fort Campbell’s railroad system. The parties agreed that Scott
Giller is being offered as an expert concerning the metes and bounds described in the deeds of
the United States’ right of way and the adjoining Fuqua property. The parties disagree as to
whether Williamson is being offered as an expert. In Williamson’s declaration, Williamson
states that the United States, by deed, acquired “the fee interest in the railroad property, including
all improvements.” It is undisputed that Gilkey is a fact witness.
Plaintiff requested to reopen discovery on June 6, 2011 in order to depose the United
States’ expert Vaughan and to complete discovery of representatives of the Army Corps of
Engineers. The Court extended discovery until September 10, 2011 and ordered that Plaintiff
have until September 30, 2011 to file any responsive memorandum to the United States’ pending
motion for summary judgment. Plaintiff was able to depose Williamson and Giller on August
10, 2011 and chose not to depose Gilkey. Plaintiff then filed this Motion to Strike and/or Amend
Scheduling Order that same day.
STANDARD
Federal Rule of Evidence 26(a)(2)(D) provides that parties must make their expert
disclosures at the times and in the sequence that the court orders. “[I]f the evidence is intended
solely to contradict or rebut evidence on the same subject matter identified by another party”
and there is no court order or stipulation with respect to the disclosure at issue, then the
disclosure must be made “within 30 days after the other party’s disclosure.” Fed. R. Civ. P.
26(a)(2)(D)(ii). Additionally, Rule 26(e) requires parties to supplement their disclosures in a
timely manner if the party learns that some material respect of the disclosure is incomplete or
incorrect. Rule 37(c)(1) further provides that a failure to provide information as required by
Rule 26(a) or (e) results in the inability of that party to “use the information or witness to supply
evidence on a motion, at a hearing, or at trial” unless that failure was harmless or substantially
justified.
DISCUSSION
Plaintiff seeks an order striking the United States’ three witnesses disclosed in its motion
for summary judgment—Mr. Giller, Mr. Williamson, and Mr. Gilkey—because disclosure was
untimely. In the alternative, Plaintiff seeks a revision of the current scheduling order to permit
the testimony of her designated rebuttal expert witness, Mr. Keith Biggerstaff, as well as that of
all of the United States’ witnesses. The plaintiff believes that this is the “most common sense
approach.” The Court agrees. The United States has only partially opposed this approach,
seeking to limit the scope of Mr. Biggerstaff’s rebuttal testimony to Mr. Giller’s expert
testimony, which relates to the metes and bounds description of Plaintiff’s property.
The United States believes that the scope of any rebuttal testimony should not extend to
Mr. Vaughan’s expert testimony because such disclosure would be untimely. The opinion of the
United States’ other expert, Mr. Vaughan, initially was disclosed in February of 2011. However,
Mr. Vaughan’s expert opinion was then supplemented June 8, 2011. Plaintiffs were prepared to
depose Mr. Vaughan on August 5, 2011 but the deposition was postponed at the last minute by
Mr. Vaughan. This led to an extension of the time to complete discovery until September 10,
2011. For these reason, it is understandable that Plaintiffs have yet to offer a rebuttal expert
witness to Mr. Vaughan. Furthermore, Plaintiff’s counsel disclosed that Mr. Biggerstaff would
be presenting rebuttal testimony with respect to both Mr. Giller and Mr. Vaughan in a July 27,
2011 letter. Plaintiff’s delay in disclosing the rebuttal testimony of Mr. Biggerstaff is both
substantially justified and harmless. Accordingly, Plaintiff will be allowed to present rebuttal
testimony as to the expert opinion of Mr. Giller and the expert opinion of Mr. Vaughan. The
United States will be permitted an opportunity to depose the plaintiff’s rebuttal expert witness.
Additionally, the Court will not strike the testimony of the three witnesses—Mr. Williamson,
Mr. Giller, and Mr. Gilkey— disclosed in the United States’ motion for summary judgment.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Strike and/or Amend Scheduling Order
is GRANTED IN PART.
October 6, 2011
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