Seibert v. Jackson County, Mississippi et al
Filing
107
ORDER granting in part and denying in part Defendants' 86 Motion in Limine to exclude the testimony of Janell Harvey; and denying 91 Defendants' Motion to Compel. Signed by District Judge Keith Starrett on August 26, 2015 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KRISTAN SEIBERT
PLAINTIFF
V.
CIVIL ACTION NO. 1:14-CV-188-KS-MTP
JACKSON COUNTY, MISSISSIPPI, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
For the reasons below, the Court grants in part and denies in part Defendants’ Motion
in Limine [86] to exclude the testimony of Janell Harvey, and the Court denies Defendants’
Motion to Compel [91].
A.
Background
Janell Harvey is a licensed professional counselor who treated Plaintiff, but Plaintiff did
not identify Harvey as a potential witness in her initial disclosures or designate her as an expert
witness. Plaintiff first identified Harvey in a response [91-1] to Defendant’s interrogatory
concerning medical treatment providers. She represented that she had seen Harvey for marriage
counseling and to talk about her work on sexual and child abuse cases.
On March 27, 2015, Defendants’ counsel sent a letter [91-2] to Harvey requesting her
records of Plaintiff’s treatment, accompanied by an authorization executed by Plaintiff. Harvey
never responded. A month later – two days before the discovery deadline and two weeks before
the motions deadline – Defendant took Plaintiff’s deposition. Plaintiff testified [91-3] that she
had spoken with Harvey about Defendant Byrd’s alleged actions, and she agreed to provide
Harvey’s records.
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On May 4, 2015, Defendants’ counsel followed up [96-2] with Plaintiff’s counsel
regarding Harvey’s records. On May 6, 2015, Plaintiff’s counsel sent correspondence [96-3] to
Harvey requesting any records she may have and a letter regarding Plaintiff’s treatment.
Plaintiff’s counsel received a letter [92-1] from Harvey on May 18, 2015 – but no treatment
records – and forwarded it to Defendants’ counsel with supplemented disclosures and discovery
responses.
On July 28, 2015, Defendant served Harvey with a subpoena [91-5] requesting any
records related to her treatment of Plaintiff. Harvey never responded. On August 11, 2015,
Defendants’ counsel sent a letter [91-6] to Harvey requesting that she comply with the subpoena,
but Harvey did not respond.
Defendant subsequently filed a Motion in Limine [86] to exclude Harvey’s testimony,
and a Motion to Compel [91] Harvey to comply with the subpoena.
B.
Expert Testimony
First, Defendants argue that Harvey’s testimony should be excluded because Plaintiff
failed to designate her as an expert witness. In response, Plaintiff represents that she has no
intention of offering Harvey as an expert. Therefore, the Court grants this aspect of Defendants’
motion as unopposed.
Alternatively, Rule 26 provides that “a party must disclose to the other party the identity
of any witness it may use at trial to present” expert testimony. FED. R. CIV. P. 26(a)(2)(A).
“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
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employed to provide expert testimony in the case . . . .” FED. R. CIV. P. 26(a)(2)(B). Among
other things, the report must contain “a complete statement of all opinions the witness will
express and the basis and reasons for them,” and “the facts or data considered by the witness in
forming them . . . .” FED. R. CIV. P. 26(a)(2)(B)(i)-(ii). The proponent of the expert testimony
must also supplement these disclosures if he learns that they are incorrect or incomplete. FED. R.
CIV. P. 26(e). “If a party fails to provide information or identify a witness as required by Rule
26(a) or (e), the party 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). When applying Rule 37, the Court considers the following factors: “(1)
the explanation for the failure to identify the witness; (2) the importance of the testimony; (3)
potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure
such prejudice.” Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004).
Here, Plaintiff provided no explanation for failing to designate Harvey as an expert
witness. Harvey’s testimony may be moderately important to Plaintiff’s case, but “expert
testimony showing actual harm to prove mental injury is not always required.” Univ. of S. Miss.
v. Williams, 891 So. 2d 160, 173 (Miss. 2004). Allowing Harvey to testify as an expert would
prejudice Defendants insofar as they did not receive timely notice of her opinions and had no
opportunity to depose her as an expert or obtain rebuttal testimony. Finally, there is no time to
cure the prejudice, as the trial of this matter is scheduled to begin in less than three weeks, on
September 14, 2015. Therefore, any proposed expert testimony from Harvey must be excluded
pursuant to Rule 37.
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C.
Fact Testimony
Plaintiff disclosed Harvey’s identity on March 23, 2015, in her responses to Defendants’
interrogatories [91-1]. Therefore, it appears to be undisputed that Plaintiff timely disclosed
Harvey as a fact witness. Defendant argues that Harvey’s fact testimony will consist of
inadmissible hearsay insofar as she will only repeat what Plaintiff told her.
In the past, the Court has permitted medical providers to testify as fact witnesses when a
party failed to comply with the disclosure requirements for expert witnesses. See, e.g. Payne v.
Univ. of S. Miss., No. 1:12-CV-41-KS-MTP, 2014 U.S. Dist. LEXIS 49739, at *10 (S.D. Miss.
Apr. 10, 2014); Gerald v. Univ. of S. Miss., No. 2:12-CV-147-KS-MTP, 2013 U.S. Dist. LEXIS
146728, at *20 (S.D. Miss. Oct. 10, 2013); BC’s Heating & Air & Sheet Metal Works, Inc. v.
Vermeer Mfg. Co., No. 2:11-CV-136-KS-MTP, 2012 U.S. Dist. LEXIS 111906, at *5-*6 (S.D.
Miss. Aug. 9, 2012). The Court will likewise permit Harvey to testify as a fact witness. But she
may only “testify as to basic facts known to [her] as the treating physician without expressing
any opinion at all.” Robbins v. Ryan’s Family Steak House E., Inc., 223 F.R.D. 448, 453 (S.D.
Miss. 2004). She may not provide any testimony informed by or based on her experience or
training as a licensed professional counselor or any other specialized or technical knowledge.
For example, Harvey stated in her letter that Plaintiff’s “body posture displayed shame and guilt
which is very typical of abused women . . . .” She said that “[w]omen who have been sexually
harassed often show” symptoms similar to those allegedly suffered by Plaintiff. These
professional opinions are not admissible as fact testimony.
Additionally, Harvey may not testify as to what Plaintiff told her during counseling
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sessions. Plaintiff argues that such testimony is admissible under Rule 801(d)(2). Plaintiff is
mistaken. Rule 801(d)(2) provides that an opposing party’s out-of-court statement is not hearsay
in certain circumstances. FED. R. EVID. 801(d)(2); United States v. Nelson, 732 F.3d 504, 515 (5th
Cir. 2013). In other words, Rule 801(d)(2) removes admissions by a party-opponent from the
definition of hearsay. See Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012). Plaintiff is
not permitted to offer her own out-of-court statements under Rule 801(d)(2). See United States v.
Anderton, 679 F.2d 1199, 1203 (5th Cir. 1982) (“That rule applies only to the admission of a
statement against a party. It does not avail one in this rather unusual position who seeks to
introduce the evidence in his own behalf.”).
D.
Lay Opinion Testimony
Plaintiff argues that Harvey may provide lay opinion testimony. Rule 701 provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is
limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
FED. R. EVID. 701. Subsection (c)’s purpose is to “eliminate the risk that the reliability
requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an
expert in lay witness clothing.” FED. R. EVID. 701, Advisory Committee’s Note to 2000
Amendment. It was “not intended to affect the prototypical examples of the type of evidence
contemplated by the adoption of Rule 701 relating to the appearance of persons or things, . . . the
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manner of conduct, . . . and an endless number of items that cannot be described factually in
words apart from inference.” Id.
“The distinction between lay and expert testimony is that lay testimony results from a
process of reasoning familiar in everyday life, while expert testimony results from a process of
reasoning which can be mastered only by specialists in the field.” United States v. Sosa, 513 F.3d
194, 200 (5th Cir. 2008). “[A] lay opinion must be the product of reasoning processes familiar to
the average person in everyday life,” and “any part of a witness’s opinion that rests on scientific,
technical, or specialized knowledge must be determined by reference to Rule 702, not Rule 701.”
Id. “To be considered expert, testimony must involve more than common sense or the
[witness’s] past experience formed from firsthand observation.” United States v. Ebron, 683
F.3d 105, 138 (5th Cir. 2012).
Lay witnesses may not provide an opinion which “requires specialized medical
knowledge.” United States v. York, 600 F.3d 347, 361 (5th Cir. 2010). Such testimony “is not the
type of opinion that one could reach as a process of everyday reasoning.” Id. However, this
Court has previously ruled that lay witnesses could provide opinion testimony as to a party’s
emotional state based on their personal observation of the party. See Ishee v. Fannie Mae, No.
2:13-CV-234-KS-MTP, 2014 U.S. Dist. LEXIS 165910, at *3-*4 (S.D. Miss. Nov. 26, 2014). As
the Court previously noted, it is “arguable that such opinion testimony is the ‘product of
everyday reasoning processes familiar to the average person in everyday life,’ and arises from
‘common sense’ and ‘firsthand observation.’” Id. at *4 (quoting Sosa, 513 F.3d at 194; Ebron,
683 F.3d at 138). “One does not need a medical degree to observe another person and discern
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whether they are upset.” Id. (citing United States v. Heard, 709 F.3d 413, 422 (5th Cir. 2013) (lay
witness permitted to give opinion testimony as to defendant’s mental state/intent in criminal
case)).
The opinions contained in Harvey’s letter [92-1] fall outside the scope of “common
sense” and “everyday reasoning.” Harvey stated in her letter that Plaintiff’s “body posture
displayed shame and guilt which is very typical of abused women . . . .” She reported that
Plaintiff “reported that she hadn’t been able to eat, drink or sleep,” and that “[w]omen who have
been sexually harassed often show” such symptoms. She provided her “professional opinion that
the harassment by” Defendant Byrd caused “much of the anxiety” with which Plaintiff allegedly
struggles, and that Plaintiff has a “long struggle” ahead of her in recovery. All of these opinions
are informed by Harvey’s experience and training as a licensed professional counselor, and,
therefore, they are “based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” FED. R. EVID. 701(c). Accordingly, they are not admissible as lay opinion
testimony. In fact, the letter contains no opinions which are admissible as lay opinions.
The Court can not evaluate testimony which is not before it in some form, whether via
deposition transcript or otherwise. Therefore, it can not provide a ruling as to any other potential
opinion testimony from Harvey. The Court is skeptical as to whether Harvey – a licensed
professional counselor and medical professional – can provide opinions that are solely “the
product of reasoning processes familiar to the average person in everyday life” and not based on
“scientific, technical, or specialized knowledge.” Sosa, 513 F.3d at 200. Furthermore, such
opinion testimony may be unfairly prejudicial insofar as the jury may interpret the purported lay
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opinion as an expert opinion because of Harvey’s status as a licensed professional counselor. See
FED. R. EVID. 403. Ultimately, the Court must hear the testimony to assess its admissibility.
Therefore, the Court defers further ruling until Plaintiff makes a proffer of the proposed opinion
testimony.
E.
The Letter [92-1]
Defendant argues that the letter provided by Harvey is inadmissible hearsay, and that the
letter is inadmissible because it contains expert opinions which were not timely disclosed. In
response, Plaintiff represents that she does not intend to offer the letter at trial. Therefore, the
Court grants this aspect of Defendant’s motion as unopposed.
F.
Motion to Compel [91]
Finally, Defendants filed a Motion to Compel [91] Harvey to produce certain documents
or to issue a show cause order regarding her failure to comply with the subpoena. Defendants
have known that Harvey treated Plaintiff since March 23, 2015, when they received Plaintiff’s
responses to their interrogatories. The discovery deadline expired on May 1, 2015. Defendants
never noticed Harvey’s deposition, and they did not subpoena her records until July 28, 2015 –
almost two full months after the discovery deadline had expired. They did not file a motion to
compel or otherwise seek relief from the Court until August 13, 2015.
“Motions regarding subpoenas will be considered discovery motions and are governed by
the procedural requirements that govern discovery motions.” L.U.Civ.R. 45(e). Local Rule 7(b)
provides: “A party must file a discovery motion sufficiently in advance of the discovery deadline
to allow response to the motion, ruling by the court and time to effectuate the court’s order
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before the discovery deadline.” L.U.Civ.R. 7(b)(2)(B). Defendants obviously failed to comply
with this rule. Rule 37 requires that a motion to compel be accompanied by a “certification that
the movant has in good faith conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court action.” FED. R. CIV. P.
37(a)(1); see also L.U.Civ.R. 37(a) (“A Good Faith Certificate [Official Form No. 4] must be
filed with all discovery motions.”). Defendants failed to provide a good faith certificate. For
these reasons, the Court denies Defendants’ Motion to Compel [91].
G.
Conclusion
For the reasons above, the Court grants in part and denies in part Defendants’ Motion
in Limine [86] to exclude the testimony of Janell Harvey. Harvey may not testify as an expert,
but she may provide fact testimony within the limits provided above. Harvey may not provide
lay opinion testimony to the extent such opinions match what she provided in the letter disclosed
to Defendants, but the Court defers ruling on any other proposed lay opinions. Finally, the letter
[92-1] provided by Harvey is excluded from trial. The Court denies Defendants’ Motion to
Compel [91].
SO ORDERED AND ADJUDGED this 26th day of August, 2015.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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