Bearchild v. Cobban et al

Filing 305

ORDERED: Mr. Pashas motion (Doc. 294) is GRANTED in part and DENIED in part, as set forth previously in this order. IT IS FURTHER ORDERED that on or before January 29, 2021, Mr. Bearchild shall serve on Mr. Pasha an amended disclosure of Dr. Evans sufficiently summarizing the facts and opinions on which she is expected testify at trial. See order for complete details and information. Signed by Judge Dana L. Christensen on 1/4/2021. (HEG)

Case 6:14-cv-00012-DLC Document 305 Filed 01/04/21 Page 1 of 9

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 Defendant Larry Pasha’s Motion in Limine seeking the
exclusion of Plaintiff Dewayne Bearchild’s expert witness, Dr. Crystal Evans.
(Doc. 294.) For the reasons stated herein, the Court will deny the motion to the
extent it seeks to exclude Dr. Evans from testifying at trial, but the Court will
provide Mr. Bearchild with certain alternative relief described below.
BACKGROUND
This civil rights action is brought by Mr. Bearchild, an inmate at the
Montana State Prison, seeking redress for an allegedly unconstitutional search
performed by correctional officer Mr. Pasha. (See generally Docs. 2; 11.) A
detailed factual background was provided in the Court’s previous order
adjudicating Mr. Bearchild’s own motion challenging the sufficiency of Mr.
Pasha’s expert witness disclosures. (Doc. 296 at 1–3.) Consequently, factual
recitation is provided only to the extent necessary to resolve the instant motion.
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In advance of the second trial, Mr. Bearchild has disclosed Roy T. Gravette
and Dr. Evans as expert witnesses. (Doc. 294-1.) As to Dr. Evans, Mr. Bearchild
couched such disclosure under Federal Rule of Civil Procedure 26(a)(2)(C) and
provided the following information:
1.

Subject Matter of Expected Testimony:
This witness is Mr. Bearchild’s treating licensed clinical social
worker. The witness would testify regarding the symptoms of
emotional distress suffered by Mr. Bearchild; the causal
relationship between Mr. Bearchild’s sexual assault by
Defendant Pasha and the symptoms experienced by Mr.
Bearchild; and the witness’s care, treatment, and prognosis by
Mr. Bearchild.

2.

Summary of Expected Opinion:
The witness would testify regarding the symptoms of emotional
distress suffered by Mr. Bearchild; her opinions regarding the
causal relationship between Mr. Bearchild’s sexual assault by
Defendant Pasha and the symptoms experienced by Mr.
Bearchild; and facts and opinions relating to the care, treatment,
and prognosis of Mr. Bearchild.

(Id. at 3–4.)
In response, Mr. Pasha has moved this Court for an order forbidding Dr.
Evans from testifying at trial on the basis that Mr. Bearchild has failed to comply
with various provisions of Rule 26. (See generally Doc. 294.) Each specific Rule
26 argument is addressed in turn below.

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DISCUSSION
Rule 26 requires litigants to disclose certain information regarding expert
witnesses they intend to call at trial. Specifically, under Rule 26(a)(2)(C), a party
must disclose certain information regarding expert witnesses who need not prepare
a report, including: (1) “the subject matter on which the witness is expected to
present evidence;” and (2) “a summary of the facts and opinions to which the
witness is expected to testify.” As this Court has previously recognized, the
sufficiency of a Rule 26(a)(2)(C) disclosure depends on whether it permits an
opposing party to “determine what, if any, adverse opinions are being proffered
and make an informed decision as to whether it is necessary to take a deposition
and whether a responding expert is needed.” Ibey v. Trinity Universal Ins. Co.,
2013 WL 4433796, *3 (D. Mont. 2013) (CV 12–31–M–DWM).
Additionally, under Rule 26(e) a party is required to supplement its
responses to discovery requests on an ongoing basis. This supplementation
requirement undoubtedly extends to discovery requests targeted at prospective
expert witnesses. If a party fails to make a proper Rule 26(a)(2)(C) disclosure or
supplement their responses to discovery requests, “the party is not allowed to use”
the omitted information” at trial. Fed. R. Civ. P. 37(c)(1). This exclusionary
sanction is inappropriate, however, if the nondisclosure is substantially justified or
harmless. Id. Moreover, this Court enjoys wide latitude to fashion other
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appropriate relief in response to a Rule 26 violation. Yeti by Molly, Ltd. v. Deckers
Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).
Mr. Pasha challenges Mr. Bearchild’s disclosure of Dr. Evans on two
grounds. Specifically, Mr. Pasha contends that: (1) Mr. Bearchild’s disclosure of
Dr. Evans insufficiently describes her opinions, in violation of Rule 26(a)(2)(C);
and (2) Mr. Bearchild has failed to supplement his responses to discovery requests
seeking information related to Dr. Evans’ proposed expert testimony, in violation
of Rule 26(e). (Doc. 294 at 2–3.) Considering these supposed “multiple violations
of Rule 26,” Mr. Pasha requests that this Court prohibit Mr. Bearchild from calling
Dr. Evans at trial. (Id. at 3.)
In response, Mr. Bearchild contends that his disclosure of Dr. Evans satisfies
the requirements of Rule 26(a)(2)(C). (Doc. 302 at 4–5.) Mr. Bearchild relies
predominately on this Court’s prior holding in Green v. Montana Department of
Public Health and Human Services, 2014 WL 12591834 (D. Mont. 2014 (CV 12–
62–H–DLC), arguing that his disclosure of “Dr. Evans is directly analogous to the
disclosure in Green” which this Court supposedly found sufficient under Rule
26(a)(2)(C). (Doc. 302 at 5–6.) Additionally, Mr. Bearchild represents that he will
supplement his discovery responses “despite having already disclosed the
witnesses in accordance with expert disclosure deadlines” and that exclusion of Dr.
Evans is an unwarranted sanction. (Id. at 6–7.)
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As an initial matter, the Court finds Mr. Bearchild’s reliance on Green
utterly misplaced. Notably, in Green this Court specifically noted that, unlike this
case, “Defendants do not object to the sufficiency of Plaintiffs’ Rule 26(a)(2)(C)
disclosures” and instead addressed the question of whether “medical records are a
necessary component of [an] expert disclosure related to treatment care providers.”
2014 WL 12591834 at *4–5 (adding “Defendants expressly do not raise” claims
“related to the sufficiency of [a] Rule 26(a)(2)(C) disclosure”). Put another way,
contrary to Mr. Bearchild’s representations, this Court in Green did not determine
whether a party’s expert witness disclosure satisfied the requirements of Rule 26
(a)(2)(C). Consequently, Green provides no guidance whatsoever for what
constitutes an adequate Rule 26(a)(2)(C) disclosure.
Turning to the question of whether Mr. Bearchild’s disclosure of Dr. Evans
complies with Rule 26(a)(2)(C), this Court undertakes two separate inquiries, each
asking whether the disclosure sufficiently summarizes: (1) the subject matter on
which the witness is expected to testify; and (2) a summary of the facts and
opinions to which the witness is expected to testify. As noted above, sufficiency
depends on whether the disclosure outlines the “adverse opinions . . . being
proffered” and permits the other party to “make an informed decision as to whether
it is necessary to take a deposition and whether a responding expert is needed.”

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Ibey, 2013 WL 4433796 at *3. Applying this test, the Court finds that Mr.
Bearchild’s disclosure of Dr. Evans violates Rule 26(a)(2)(C).
As to the first inquiry, the Court finds no defect with respect to Mr.
Bearchild’s disclosure of the subject matter on which Dr. Evans is expected to
testify. Indeed, Mr. Pasha admits as much. (Doc. 304 at 2.) Mr. Bearchild’s
disclosure states that Dr. Evans will testify on a multitude of subjects, including
Mr. Bearchild’s symptoms of emotional distress, the causal nexus between Mr.
Pasha’s alleged sexual assault of Mr. Bearchild and such symptoms of emotional
distress, and Dr. Evan’s treatment of Mr. Bearchild as his licensed clinical social
worker. (Doc. 294-1 at 3.) This disclosure sufficiently describes the various
subjects on which Dr. Evans intends to offer evidence.
As to the second inquiry, the Court finds Mr. Bearchild’s disclosure of Dr.
Evans to be woefully inadequate. Under “Summary of Expected Opinion,” the
disclosure provides nothing more than a renumeration of the subjects listed above.
(Id. at 4.) For example, the disclosure states that Dr. Evans would testify regarding
“her opinions regarding the causal relationship between Mr. Bearchild’s sexual
assault by Defendant Pasha and the symptoms experienced by Mr. Bearchild” as
well as the “facts and opinions relating to the care, treatment, and prognosis of Mr.
Bearchild.” (Id.) Critically, nowhere does the disclosure enlighten Mr. Pasha on
what those opinions actually are, which, unsurprisingly, is the central purpose of a
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Rule 26(a)(2)(C) disclosure. This inadequate disclosure thus runs afoul of Rule
26(a)(1)(C)(ii). See Amezcua v. Boon, 754 Fed. Appx. 551, 553 (9th Cir. 2018).
Having found a Rule 26 violation, this Court must fashion the proper
remedy. As noted above, Mr. Pasha urges this Court to deploy the nuclear option
and forbid Dr. Evans from testifying at trial. (Doc. 304 at 3.) Mr. Bearchild
predictably argues for a less severe outcome. (Doc. 302 at 6–7.) In the final
analysis, this Court does not find exclusion of Dr. Evans to be the appropriate
remedy and denies Mr. Pasha’s motion to the extent he seeks such relief. Instead,
the Court will render Mr. Bearchild’s Rule 26 violation harmless by ordering him
to serve on Mr. Pasha a supplemental disclosure of Dr. Evans on or before January
29, 2021. This disclosure shall sufficiently outline what actual opinions she
intends to offer. The Court warns Mr. Bearchild that the failure to make a
sufficiently precise supplemental disclosure may result in the exclusion of Dr.
Evans as a witness at trial. For good measure, Mr. Pasha shall be permitted to take
the deposition of Dr. Evans, should he so desire, and may disclose his own
response expert on or before March 1, 2021.1
The Court additionally takes the opportunity to remind Mr. Bearchild that
treating physicians, such as Dr. Evans, must produce a report in compliance with

1

The Court notes that the parties are free to stipulate to the extension of these two deadlines on
their own accord and without the intervention of this Court, so long as such stipulations do not
impede on the current trial setting.
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Rule 26(a)(2)(B) when their testimony “goes beyond care, treatment and
prognosis.” (Doc. 288 at 7.) Here, the disclosure of Dr. Evans specifically
contemplates testimony on “the causal relationship between Mr. Bearchild’s sexual
assault by” Mr. Pasha “and the symptoms experienced by Mr. Bearchild.” (Doc.
294-1 at 3.) It is well established that such causation testimony falls outside of the
scope of opinions formed “during the course of treatment” and are thus only
properly offered by experts who prepare and submit a written report. See, e.g.,
Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 824–26 (9th Cir.
2011). Accordingly, Mr. Bearchild is warned that the failure to produce a report in
compliance with Rule 26(a)(2)(B) for any of Dr. Evans opinions stemming beyond
“care, treatment, and prognosis” may result in the exclusion of such opinions at
trial. To the extent a report is necessary, Mr. Bearchild must produce one on or
before January 29, 2021.
Having found grounds to grant Mr. Pasha’s motion on the basis of a Rule
26(a)(1)(C)(ii) violation, the Court need not reach the question of whether Mr.
Bearchild has failed to supplement responses to Mr. Pasha’s discovery requests in
violation of Rule 26(e). Nonetheless, the Court takes the opportunity to remind the
parties of their ongoing duty to supplement. Fed. R. Civ. P. 26(e).
Accordingly, IT IS ORDERED that Mr. Pasha’s motion (Doc. 294) is
GRANTED in part and DENIED in part, as set forth previously in this order.
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IT IS FURTHER ORDERED that on or before January 29, 2021, Mr.
Bearchild shall serve on Mr. Pasha an amended disclosure of Dr. Evans
sufficiently summarizing the facts and opinions on which she is expected testify at
trial. Further, on or before March 1, 2021 Mr. Pasha may elect to take the
deposition of Dr. Evans and otherwise designate his own response expert. The
parties are free to stipulate to an alteration of these deadline without judicial
intervention, so long as such stipulations do not impede on the current trial setting.
DATED this 4th day of January, 2021.

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