Claflin v. Shaw et al

Filing 59

ORDER granting 50 motion to strike expert testimony of Brad DeLay. Signed on 12/13/13 by District Judge Ortrie D. Smith. (Wolfe, Steve)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
KATHARINE CLAFLIN,
Plaintiff,
vs.
LARRY MITCHELL SHAW and
BARTON COUNTY, MISSOURI,
Defendants.

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Case No. 13-5023-CV-SW-ODS

ORDER AND OPINION GRANTING MOTION TO STRIKE EXPERT TESTIMONY OF
SHERIFF BRAD DELAY
Pending is Plaintiff’s Motion to Strike, which seeks to preclude expert testimony
Defendant intends to introduce from Sheriff Brad DeLay. The motion (Doc. # 50) is
granted.

I. BACKGROUND

According to the Amended Complaint, Plaintiff worked as a dispatcher for the
Barton County Sheriff’s Office. In January 2009, Larry Shaw became the Sheriff of
Barton County. Plaintiff alleges that in the 2012 election she supported Sheriff Shaw’s
opponent, Jeremy Brand. She also alleges that she was interviewed by an investigator
from the Missouri Highway Patrol regarding an investigation into missing and unserved
warrants. Plaintiff has sued Sheriff Shaw and Barton County, alleging these events led
to her termination in violation of both her First Amendment rights and state law.
Pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure, Defendants
have notified Plaintiff they intend to offer expert testimony from Sheriff Brad DeLay, the
Lawrence County Sheriff. Defendants have also provided the report required by Rule
26(a)(2). Relying on the report, Plaintiff contends Sheriff DeLay’s expert testimony
should be disallowed because it does not satisfy the requirements of Rules 702 and 703
of the Federal Rules of Evidence.

II. DISCUSSION

A. Is the Motion Premature?

Before delving into the particulars of Sheriff DeLay’s report, the Court first
addresses Defendants’ argument that Plaintiff’s motion is premature and should be
refiled after Sheriff DeLay is deposed. The Court rejects this proposition.
When provisions requiring expert reports were added in 1993, the accompanying
Advisory Committee Notes explain the intent was to shorten, if not eliminate the need
for, expert depositions. Subsequent practice has proved that attorneys still routinely
depose experts, but the importance of the expert’s report remains: it must set forth,
among other things, all of the expert’s opinions and the facts or data relied upon in
reaching those opinions. Fed. R. Civ. P. 26(b)(2)(B). True, the Court’s Scheduling and
Trial Order (Doc. # 10) states, in paragraph 6, that all experts’ testimony “will be limited
to opinions and information contained in the report and in any depositions that might be
taken,” but the Scheduling and Trial Order does not require that there be any expert
depositions – and in the absence of a deposition, the expert’s testimony is limited to the
opinions in the Report.1
The Court also notes that a deposition will not affect the legal analysis. As
discussed more fully in the next section, Sheriff DeLay’s opinions are not admissible
and allowing him to expound upon them in a deposition will not change this conclusion.

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The Court intended this provision to allow an expert to testify about opinions and
explanations that were more expansive than those contained in the report if they were
divulged during a deposition. The Court’s rationale is that (1) the deposition testimony
provides fair notice to the opposing side and (2) this provision avoids unnecessary hairsplitting about the differences between deposition testimony and expert reports. The
Court does not intend to permit depositions to substitute for the report required by Rule
26, and proponents of the expert’s testimony cannot rely on the opposing party’s
deposition as a means for curing deficiencies in the report.
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B. Are Sheriff DeLay’s Opinions Admissible?

Rule 702 provides that an expert may testify in the form of an opinion if the
expert’s knowledge “will help the trier of fact to understand the evidence or to determine
a fact in issue,” provided “the testimony is based on sufficient facts or data.” The Court
concludes Sheriff DeLay’s opinions are not based on sufficient facts or data and will not
assist the jury.
It must be remembered that Sheriff DeLay is testifying as an expert: while he has
reviewed depositions and exhibits related to this suit he has no first-hand information
about anything connected to it. Sheriff DeLay is prepared to testify that Plaintiff “was
not terminated unjustly and was terminated for cause.” He bases this opinion on a
review of various statutes, various policies promulgated by the Barton County Sheriff’s
Office, and his review of the facts. He concludes Plaintiff was properly fired because:


Various witnesses described Plaintiff as discourteous to citizens who called the
Sheriff’s Office.



Sheriff Shaw testified Plaintiff was unduly critical of others (including Sheriff
Shaw) and Sheriff Shaw “believed [Plaintiff] to be spreading gossip regarding his
office.”



Sheriff Shaw testified Plaintiff was insubordinate.

In his report’s concluding section, Sheriff DeLay opines as follows:
Sheriff Shaw had every reason to terminate [Plaintiff]. She had not
followed his directives and policies. . . . Her disregard for policies and
directives resulted in the division of Sheriff Shaw’s office, created a hostile
work environment for fellow employees and lowered the morale of his
office.
Sheriff DeLay continues by opining that he “saw no evidence in the depositions I
reviewed that would substantiate” Plaintiff’s claim that she was terminated in retaliation
for protected conduct and as far as he could determine “Sheriff Shaw had no prior
knowledge of [Plaintiff’s] contact with” the Highway Patrol.
Sheriff DeLay’s opinions are really just his own factual findings. He has reviewed
the depositions, exhibits, and other evidence and has made determinations of historical
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facts, including the content, nature and effect of Plaintiff’s prior actions and Sheriff
Shaw’s knowledge. However, a jury would be fully capable of performing this function,
and Sheriff DeLay’s testimony would not aid the jury in its fact-finding mission. He has
purported to apply legal principles to his factual findings, but it is the Court’s province to
instruct the jury as to the law. Finally, Sheriff DeLay offers that, based on what he
believes occurred, he would have fired Plaintiff too – but this opinion also is of no help
to the jury. Sheriff Shaw will undoubtedly testify as to why he fired Plaintiff, and Sheriff
DeLay’s opinions will not help the jury understand or evaluate that testimony.
The Court views Sheriff DeLay’s testimony as Defendant’s effort to “launder” the
facts through an “expert” in order to provide undeserved substantiation for Defendants’
views. Expert testimony is not designed to provide an “imprimatur of officialness” or
endorsement to ordinary facts; it is designed to help a jury understand facts of a
technical, scientific or specialized nature. This testimony will not assist the jury and
does not satisfy Rule 702

III. CONCLUSION

For these reasons, the Motion to Strike is granted. Sheriff DeLay will not be
permitted to offer the opinions set forth in his report at trial.

IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: December 13, 2013

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