Bearchild v. Cobban et al

Filing 296

ORDER granting in part and denying in part 290 Motion to Object to Defendant's Expert Disclosures. Signed by Judge Dana L. Christensen on 12/9/2020. (ASG)

Case 6:14-cv-00012-DLC Document 296 Filed 12/09/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
DEWAYNE BEARCHILD,

CV 14–12–H–DLC

Plaintiff,
vs.

ORDER

LARRY PASHA,
Defendant.
Before the Court is Plaintiff Dewayne Bearchild’s Motion to Object to
Defendant’s Expert Disclosures. (Doc. 290.) Mr. Bearchild challenges Defendant
Larry Pasha’s expert witness disclosures on various grounds and seeks to preclude
such expert witnesses from testifying at trial. For the reasons stated herein, the
Court finds insufficient justification for precluding such witnesses from testifying
at trial but will grant certain alternative relief as described below.
BACKGROUND
Mr. Bearchild, a prisoner incarcerated in the Montana State Prison,
commenced this action in 2014 complaining that he was sexually assaulted by Mr.
Pasha in violation of his constitutional rights. (See generally Docs. 2; 11.) With
Mr. Bearchild proceeding pro se, this matter was tried before a jury in July 2017,
with a verdict being reached in favor of Mr. Pasha. (See Doc. 258.) This verdict

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was subsequently reversed on appeal. See generally Bearchild v. Cobban, 947
F.3d 1130 (9th Cir. 2020). Following remand, this Court issued a new scheduling
order setting the case for a second trial. (Doc. 273.)
Mr. Bearchild, now represented by counsel, subsequently moved this Court
for an order re-opening discovery so that he could conduct up to 6 depositions and
disclose 2 expert witnesses. (Doc. 284 at 2.) This Court refused to re-open
discovery so that fact witnesses could be deposed, concluding that it did “not see
the need to depose individuals who have already provided sworn testimony in the
first trial” and that it was unlikely such depositions would lead to the discovery of
additional relevant evidence. (Doc. 288 at 5–6.) With respect to the designation of
expert witnesses, however, the Court ordered that each party shall be permitted to
designate no more than two expert witnesses. (Id. at 6.) The Court also set an
expert discovery deadline of December 30, 2020. (Id. at 9.)
The parties have now made their respective expert witness disclosures.1 Mr.
Pasha originally disclosed three expert witnesses, including Michael Zuber, Bill
Weddington, and Patrick Sheehan. (Doc. 291 at 3.) Such expert witnesses were
designated as “hybrid expert witness[es] pursuant to” Federal Rule of Civil
Procedure 26(a)(2)(C), with Mr. Pasha representing that none of the three

The sufficiency of Mr. Bearchild’s expert witness disclosures is the subject of another motion.
(Doc. 294.) This motion is not yet ripe for adjudication and will be addressed in a subsequent
order. See L.R. 7.1(d)(1)(D).
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witnesses have been retained or specially employed to provide expert testimony in
the case. (Doc. 291-1 at 2–4, 6.) In response to this motion (Doc. 290), Mr. Pasha
served on Mr. Bearchild an amended expert witness disclosure removing Mr.
Weddington as an expert witness. (Doc. 292-2.) With respect to Mr. Zuber and
Mr. Sheehan, Mr. Pasha maintains they will testify exactly as they did during the
first trial. (Doc. 292 at 4.) As noted above, Mr. Bearchild raises several arguments
regarding the sufficiency of Mr. Pasha’s expert witness disclosures and each
contention will be addressed in turn.
DISCUSSION
Mr. Bearchild challenges Mr. Pasha’s expert witness disclosures on various
grounds, including that Mr. Pasha has improperly: (1) exceeded the number of
expert witnesses permitted in this matter; (2) refused to make Mr. Zuber and Mr.
Sheehan available for a deposition as to the expert opinions they intend to offer in
this case; and (3) designated Mr. Weddington as a Rule 26(a)(2)(C) expert witness
as opposed to a Rule 26(a)(2)(B) expert witness, thus requiring the production of a
written report. (Id. at 3–9.) As relief, Mr. Bearchild asks this Court to preclude
Mr. Zuber and Mr. Sheehan from testifying at trial and impose a similar exclusion
should Mr. Weddington fail to provide a written report. (Id. at 5, 9.)
As an initial matter, the Court finds the first and third issues—Mr. Pasha’s
disclosure of more than two expert witnesses and Mr. Weddington’s alleged failure
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to produce a written report—to be moot. Specifically, after Mr. Bearchild’s
motion was filed, Mr. Pasha produced an amended expert witness disclosure
removing Mr. Weddington, thus reducing his designated expert witnesses from 2 to
3. (Docs. 292 at 3; 292–2 at 3–5.) As such, Mr. Bearchild’s complaints regarding
the numerical excess of Mr. Pasha’s disclosures and the proper expert witness
classification of Mr. Weddington no longer present a live controversy.
Recognizing this, Mr. Bearchild argues in his reply brief that, for good
measure, this Court should “order that any testimony from Mr. Weddington be
limited only to facts within his percipient knowledge.” (Doc. 295 at 3.) In other
words, Mr. Bearchild argues that this Court should order that Mr. Weddington, a
lay witness, can only offer testimony properly provided by a lay witness. See
generally Fed. R. Civ. P. 701. The Court finds such an affirmative ruling
unnecessary and prefers to address the issue at trial should it arise. If Mr.
Weddington’s trial testimony impermissibly crosses the line between lay and
expert testimony, then Mr. Bearchild is free to object on that basis.
With respect to the second issue—Mr. Pasha’s refusal to make Mr. Zuber
and Mr. Sheehan available for depositions—the Court finds Mr. Bearchild’s
position persuasive. As noted above, this Court previously refused to permit Mr.
Bearchild to depose “individuals who have already provided sworn testimony at
the first trial.” (Doc. 288 at 5.) This includes Mr. Zuber and Mr. Sheehan. (Docs.
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267 at 249–86; 268 at 36–79.) Mr. Bearchild contends, however, that in light of
Mr. Pasha’s designation of them as experts witnesses for the second trial, he should
be permitted to depose them on the expert opinions they intend to offer. (Doc. 291
at 4.) In response, Mr. Pasha has served an amended expert disclosure and
represents that Mr. Zuber and Mr. Sheehan “are expected to testify just as they did
at the first trial.” (Doc. 292 at 4.) But this position cannot withstand inspection.
As discussed above, Mr. Pasha called Mr. Zuber and Mr. Sheehan as lay
witnesses during the first trial. (Docs. 267 at 249–86; 268 at 36–79.) They were
not designated as expert witnesses and they did not offer expert opinions. (Id.)
With that in mind, Mr. Pasha’s designation of Mr. Zuber and Mr. Sheehan as
expert witnesses in the run up to the second trial reasonably indicates that they will
be offering testimony different to that provided during the first trial in which they
exclusively testified as lay witness. This renders Mr. Pasha’s assertion that Mr.
Zuber’s and Mr. Sheehan’s sudden designation as expert witnesses will not result
in any additional testimony during the second trial, at a minimum, suspicious.
Indeed, inspection of their testimony in the first trial in comparison with Mr.
Pasha’s amended expert disclosure confirms this suspicion and the necessity of
their depositions. During the first trial Mr. Zuber testified generally regarding the
layout of the Montana State Prison’s High Side Unit 1, the job of a shift
commander, interdiction of inmate contraband, and the methodology of contraband
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searches within the Montana State Prison under applicable Montana Department of
Corrections policy. (Doc. 267 at 249–286.) In essence, Mr. Zuber testified about
what it is like, given his personal experience, to conduct contraband searches as a
correctional officer for the Montana State Prison.
Similarly, Mr. Sheehan testified regarding application and implementation
of the Prison Rape Elimination Act of 2003 standards within the Montana State
Prison. (Doc. 268 at 36–79.) Critically, the basis of this testimony was not Mr.
Sheehan’s role as an expert on the PREA, but rather on his individual role as the
PREA policy coordinator for the Montana State Prison. (Id. at 36–38.) The
proposed testimony described in Mr. Pasha’s amended disclosure, however,
indicates that their testimony at the second trial may be more robust and include
expert opinions that were not offered during the first trial.
Specifically, in Mr. Pasha’s amended expert witness disclosure he states that
“Mr. Zuber is expected to testify consistent with the facts and opinions he provided
in his earlier testimony . . . and the following” additional subject areas. (Doc. 2922 at 3 (emphasis added).) These additional subject areas include, but are not
limited to, “security issues faced by correctional institutions . . . and the Associated
American Correctional Standards.” (Id.) Moreover, Mr. Sheehan is expected to
testify as to “sexual misconduct in correctional institutions, the general timeline of
PREA, including PREA standards . . . and standards of the American Correctional
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Association.” (Id. at 5.) As such, while the crux of Mr. Zuber’s and Mr.
Sheehan’s anticipated trial testimony appears to be similar to that provided in the
first trial, Mr. Pasha’s amended expert disclosure does indicate an intent to provide
more expansive testimony only properly offered by expert witnesses.
The Court agrees, therefore, that Mr. Pasha should have made Mr. Zuber and
Mr. Sheehan available for depositions upon Mr. Bearchild’s request. The Court
does not agree, however, that forbidding Mr. Zuber and Mr. Sheehan from offering
expert testimony at trial is the proper remedy. Instead, the Court will grant Mr.
Bearchild’s motion to the extent it seeks to depose Mr. Zuber and Mr. Sheehan on
the expert opinions they intend to offer in the upcoming trial. These depositions
shall be strictly limited to such expert opinions and shall not extend to any lay
witness testimony offered during the first trial.
Accordingly, IT IS ORDERED that Mr. Bearchild’s motion (Doc. 290) is
GRANTED in part and DENIED in part, as set forth previously in this Order.
DATED this 9th day of December, 2020.

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