Kirk v. Schaeffler Group USA, Inc. et al
Filing
487
ORDER granting in part Plaintiff's objection to Don Van Dyke's testimony. Signed on March 7, 2016 by Chief District Judge Greg Kays. (Lehr, Jonathan) Modified on 3/7/2016 - document replaced to correct signature date (Francis, Alexandra).
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
JODELLE L. KIRK,
Plaintiff,
v.
SCHAEFFLER GROUP USA, INC., et al.,
Defendants.
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No. 3:13-cv-5032-DGK
ORDER GRANTING IN PART PLAINTIFF’S OBJECTION TO
DON VAN DYKE’S TESTIMONY
Now before the Court is Plaintiff’s objection and motion to strike expert testimony from
Don Van Dyke (Doc. 431 at 9-10), the project manager for the Missouri Department of Natural
Resources at the Newton County Superfund site.1 Mr. Van Dyke, a non-retained expert witness,
has not submitted any expert report.
Plaintiff moves to preclude Defendants from offering any testimony from Mr. Van Dyke,
or alternately, to limit his testimony to the expert opinions listed in Plaintiff’s Rule 26(a)(2)
disclosures.
Defendants respond that they are entitled to call Mr. Van Dyke as an expert witness.2
They contend: (1) the lack of any expert report from him does not bar his expert testimony since
he was not required to submit an expert report under Rule 26(a)(2); and (2) because Plaintiff’s
designated him as an expert witness pursuant to paragraph three of the Court’s Scheduling and
1
In ruling on the motion, the Court has considered Defendants’ Suggestions In Opposition (Doc. 457), Defendants’
Supplemental Suggestions (Doc. 485), and Plaintiff’s additional Suggestions to Preclude (Doc. 486).
2
The scope of the expert testimony on which Defendants claim he is entitled to give is unclear; it seems to have
changed over the course of the briefing. Defendants initially argued they should be allowed to “elicit testimony
from him regarding the subjects for which Plaintiff designated him as a expert.” Defs.’ Suggestions (Doc. 457) at 2.
Defendants now appear to be arguing he can testify about virtually any topic on which he might qualify as an expert,
including the accuracy of Dr. Everett’s proposed TCE plume. Defs.’ Br. (Doc. 485) at 4-5.
Trial Order, Defendants may call him to testify as an expert witness, even though he has not
submitted an expert report.
For the following reasons, Plaintiff’s objections are sustained in part. Mr. Van Dyke is
not permitted to testify as an expert witness.
DISCUSSION
A.
Neither party may call Mr. Van Dyke as an expert witness.
As a threshold matter, neither party may call Mr. Van Dyke to testify as an expert witness
because the Court long ago ordered that all experts, retained or not, must provide an expert
report. The Court begins with the text of the applicable rule of civil procedure, which is Rule
26(a)(2)(B). It begins, “Unless otherwise stipulated or ordered by the court,” thus the default
rule listed in Rule 26(a)(2)(B) does not apply if the Court has ordered otherwise
And the Court has ordered otherwise. On June 20, 2013, the Court entered its Scheduling
and Trial Order (“Scheduling Order”) (Doc. 13). Paragraph three of the Scheduling Order lists
the deadline to designate expert witnesses, and it states this deadline “applies to all witnesses
retained or non-retained from whom expert opinions will be elicited at trial.” (Emphasis added.)
Paragraph four then adds that, “Along with each party's designation of expert witnesses, each
party shall provide the other parties with an affidavit [the expert report] from each expert witness
designated pursuant to paragraph 3 of this section.” (Emphasis added.) Thus, the Court has
ordered that all experts, retained and non-retained, must provide an expert report to testify as an
expert.3
Defendants’ observation that “the Court has previously held that ‘Rule 26(a)(2) does not
require [parties] to disclose the facts or opinions of its non-retained expert[s],’” is irrelevant and
3
Paragraph five of the Scheduling Order provides a partially exemption for certain testimony from treating
physicians, but this exception is not applicable to Mr. Van Dyke's testimony.
2
misguided. Defs.’ Br. (Doc. 485) at 2 (quoting Weitz Co., LLC v. MH Washington, LLC, No. 060559-CV-W-DGK, 2008 WL 8625900, at *1 (W.D. Mo. Sept. 15, 2008). While the quoted
language is strictly speaking accurate—the Court did enter such an order containing such
language—the order is taken out of context. The Court made the ruling it made in the Weitz case
because the scheduling order in that case was substantively different. The scheduling order in
Weitz did not contain any of the language quoted above stating that all experts, retained or nonretained, must submit an expert report. Compare Scheduling Order (Doc. 13) at ¶¶ 3-4, with
Weitz Co., LLC v. MH Washington, LLC, No. 06-0559-CV-W-DGK, Scheduling and Jury Trial
Order (Doc. 20) (W.D. Mo. filed October 10, 2006).4
Similarly, Defendants’ citation to various cases holding that non-retained expert
witnesses do not have to submit expert reports is irrelevant because these cases are not
analogous. They do not contain scheduling order in which the court required non-retained
experts to submit expert reports.
B.
Allowing Defendants to call Mr. Van Dyke as an expert would prejudice
Plaintiff.
The Court further finds that allowing Defendants to call Mr. Van Dyke as an expert
witness on the topics Defendants propose having him testify about would prejudice Plaintiff
because it would deprive her of the opportunity to challenge his opinions under Federal Rules of
Evidence 702 and 703.
For example, although Plaintiff previously designated him as an
unspecified expert, she did not designate him as an expert in hydrology, which appears to be at
4
The Honorable Judge Laughrey entered the scheduling order in Weitz, and her scheduling order is materially
different from the one used in this case. Judge Laughrey’s scheduling order does not require non-retained experts to
submit expert reports. See Weitz Co., LLC v. MH Washington, LLC, No. 06-0559-CV-W-DGK, Scheduling and
Jury Trial Order (Doc. 20) (W.D. Mo. filed October 10, 2006). The Weitz case was transferred to the undersigned
shortly before trial, in August of 2008. Thus, when the Court was called upon to make its ruling about expert
witnesses in the Weitz case, it was applying Judge Laughrey’s scheduling order, an order which did not require nonretained experts to submit expert reports.
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least one of the subjects on which Defendants would like him to offer expert testimony. After
briefly reviewing his credentials, the Court has deep concerns about whether he is qualified to
offer an expert opinion as a hydrologist, toxicologist, or any number of other specialties.
CONCLUSION
Plaintiff’s objection (Doc. 431 at 9-10) to Don Van Dyke’s testimony is SUSTAINED IN
PART. Mr. Van Dyke is not permitted to testify as an expert witness.
IT IS SO ORDERED.
Date: March 7, 2016
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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