Strickland v. City of Las Cruces et al

Filing 121

REPORT AND RECOMMENDATIONS by Magistrate Judge Kevin R. Sweazea re 73 City Defendants' Daubert Motion No. V: To Exclude Plaintiff's Expert Witness Roy Theophilus Bent, Jr. Objections to R&R due by September 13, 2024. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JONATHAN STRICKLAND,
Plaintiff,
v.

No. 2:23-cv-116 KG/KRS

CITY OF LAS CRUCES, JOSHUA SAVAGE,
MANUEL FRIAS, NATHAN KRAUSE,
DANIEL BENOIT, and ANTHONY LUCERO,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Defendants’ Daubert Motion No. V: To Exclude
Plaintiff’s Expert Witness, Roy Theophilus Bent, Jr. (“Motion to Exclude”), filed March 3, 2024.
(Doc. 73). Plaintiff has not filed a response and the time for doing so has passed, which
constitutes consent to grant the Motion. See D.N.M. LR-Civ. 7.1(a) (“The failure of a party to
file and serve a response in opposition to a motion within the time prescribed for doing so
constitutes consent to grant the motion.”). Defendants filed a Notice of Completion of Briefing
on March 31, 2024. (Doc. 101). The presiding judge referred the Motion to the undersigned to
recommend an ultimate disposition of the Motion. (Doc. 116). Having considered the Motion,
the record of the case, and relevant law, the Court recommends that Defendants’ Daubert Motion
No. V: To Exclude Plaintiff’s Expert Witness, Roy Theophilus Bent, Jr., (Doc. 73), be granted.
Defendants move to exclude the Plaintiff’s expert witness Roy Theophilus Bent, Jr., a
certified automobile appraiser. (Doc. 73) at 1-2. Mr. Bent was retained to determine the value
of Plaintiff’s vehicle prior the damage it incurred in the incident at issue in this case. (Doc. 73-1)
(Plaintiff’s expert disclosure); (Doc. 73-2) (Mr. Bent’s deposition). Mr. Bent states he reviewed

photographs of the vehicle following Plaintiff’s encounter with the police, spoke with Plaintiff’s
counsel, and called dealerships. (Doc. 73-2). Defendants state that during Mr. Bent’s
deposition, Plaintiff’s counsel provided Defendants’ counsel with some of the photographs
considered by Mr. Bent when developing his written report. (Doc. 73) at 5; (Doc. 73-2).
Additionally, after Mr. Bent’s deposition Plaintiff produced a supplement to Mr. Bent’s report
that included information that had not previously been produced. (Doc. 73) at 5. Defendants
argue that Mr. Bent should not be permitted to testify at trial because his report does not contain
the data and other information he considered when valuing the vehicle, and Plaintiff failed to
timely supplement the report despite multiple requests by Defendants prior to Mr. Bent’s
deposition. (Doc. 73) at 3. Defendants contend that Mr. Bent’s report and testimony should be
excluded under Rule 37(c) for failure to comply with Rule 26(a), and under Federal Rule of
Evidence 702. Id. at 5-22.
Rule 26(a)(2)(B) requires that a party’s expert witness disclosure “must be accompanied
by a written report—prepared and signed by the witness[.]” Fed. R. Civ. P. 26(a)(2)(B). The
Rule requires the expert report to contain:
(i)
(ii)
(iii)
(iv)
(v)
(vi)

a complete statement of all opinions the witness will
express and the basis and reasons for them;
the facts or data considered by the witness in forming them;
any exhibits that will be used to summarize or support
them;
the witness’s qualifications, including a list of all
publications authored in the previous 10 years;
a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
deposition; and
a statement of the compensation to be paid for the study
and testimony in the case.

Id. “The purpose of expert disclosures is ‘to eliminate surprise and provide opposing counsel
with enough information ... to prepare efficiently for deposition, any pretrial motions, and trial.’”
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Carbaugh v. Home Depot U.S.A., Inc., 2014 WL 3543714, at *2 (D. Colo.) (quoting Cook v.
Rockwell Int'l Corp., 580 F. Supp. 2d 1071, 1121-22 (D. Colo. 2006)).
Under Rule 37(c)(1), “[i]f a party fails to provide information ... as required by Rule
26(a) ... , 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); see also Vesom v. Atchison Hosp. Ass’n, 279 Fed. Appx. 624, 631 (10th
Cir. 2008) (explaining that exclusion of evidence that is presented in violation of Rule 37(c) “is
‘automatic and mandatory’ unless the violation was either justified or harmless”) (quoting Finley
v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996))). A district court has discretion to
decide whether a Rule 26 violation is justified or harmless and, when doing so, should consider
the following factors: “‘(1) the prejudice or surprise to the party against whom the testimony is
offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such
testimony would disrupt the trial; and (4) the moving party’s bad faith or willfulness.’” Jacobsen
v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002); Woodworker’s Supply, Inc. v. Principal
Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (“The determination of whether a Rule
26(a) violation is justified or harmless is entrusted to the broad discretion of the district court.”);
see also Walker v. Corizon Health, Inc., 2022 WL 1521626, at *1-2 (D. Kan.), reconsideration
denied, 2022 WL 1623823 (D. Kan.) (“Rule 37(c)(1) requires the court to exclude plaintiffs’
expert reports as a sanction for failing to comply with Fed. R. Civ. P. 26(a)(2)(B).”).
Here, Mr. Bent’s report does not include any listing or copies of the information he
considered in reaching his opinions. See (Doc. 73-3) (Mr. Bent’s expert report). Defendants
state they “requested information numerous times leading up to Mr. Bent’s deposition,
specifically providing Strickland no less than three (3) explicit opportunities to cure the

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deficiencies.” (Doc. 73) at 10. During Mr. Bent’s deposition, he offered to email Defendants’
counsel five photographs he had reviewed, and then during a break Plaintiff’s counsel emailed
Defendants’ counsel approximately 110 photographs. Id.; (Doc. 73-2) at 3-6. It was not until
after Mr. Bent’s deposition that Defendants were provided with the sources of other relevant
information Mr. Bent relied on, such as the make, model, and year of the vehicle. (Doc. 73) at
10-11. However, Mr. Bent did not provide other relevant information, such as the valuation
guides he used, communications with dealers and private sellers, or information about the
vehicle’s ownership or title. Id. at 11. For these reasons, the Court finds that Mr. Bent’s report
does not satisfy the requirements of Rule 26(a)(2)(B) because it does not contain “the facts or
data considered by the witness in forming” his opinions.
When an expert report does not contain the information required by Rule 26(a), Rule
37(c)(1) provides that 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). In determining whether a Rule 26 violation is justified or
harmless the Court considers: “(1) the prejudice or surprise to the party against whom the
testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which
introducing such testimony would disrupt the trial; and (4) the moving party’s bad faith or
willfulness.” Jacobsen, 287 F.3d 936, 953 (10th Cir. 2002) (citation omitted). Plaintiff failed to
respond to the Motion to Exclude and thus failed to provide any reason for his Rule 26 violation.
Defendants gave Plaintiff ample opportunity to supplement the report prior to Mr. Bent’s
deposition and Plaintiff failed to do so, and Plaintiff’s belated disclosure of some of the relevant
information is not sufficient to satisfy Rule 26. The Court finds that Defendants were prejudiced
by Plaintiff’s Rule 26 violation because they were unable to effectively depose Mr. Bent, and

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that allowing Mr. Bent to testify at trial would be disruptive because his report is not properly
supported. While the Court does not find evidence of Plaintiff’s bad faith or willfulness, the
remaining factors weigh against concluding that the Rule 26 violation is justified or harmless.
Based on the foregoing, the Court finds that Rule 37(c)(1) requires excluding Mr. Bent’s
expert report as a sanction for failing to comply with Fed. R. Civ. P. 26(a)(2)(B). See Fed. R.
Civ. P. 37(c)(1) (if a party fails to disclose information or identify a witness as required Rule
26(a), then “the party is not allowed to use that information or witness” at trial); see also
Walker, 2022 WL 1521626, *4 (holding that “Rule 37(c)(1) requires the court to exclude
plaintiffs’ expert reports as a sanction for failing to comply with Fed. R. Civ. P. 26(a)(2)(B)”
because plaintiffs failed to demonstrate their non-compliance was “substantially justified” or
“harmless”). Because the Court recommends excluding Mr. Bent’s report as a Rule 37 sanction
for violating Rule 26, the Court does not reach Defendants’ contentions that his report should
also be exclude under Federal Rule of Evidence 702. See, e.g., Lopez v. Shrader, 2022 WL
336680 (D. Colo.) (“[G]iven the court’s conclusion that Plaintiff’s proposed Experts are
precluded from offering testimony [under Fed. R. Civ. P. 26 and 37], the court need not address
Defendants’ Rule 702 arguments.”).
For the reasons stated above, the Court finds that Plaintiff’s expert, Mr. Bent, failed to
comply with Rule 26’s expert disclosure requirements and that failure was not substantially
justified or harmless. Therefore, the Court recommends that Defendants’ Motion to Exclude be
granted and Mr. Bent be excluded from giving testimony at trial pursuant to Rule 37(c)(1).
IT IS THEREFORE RECOMMENDED that Defendants’ Daubert Motion No. V: To
Exclude Plaintiff’s Expert Witness, Roy Theophilus Bent, Jr., (Doc. 73), be GRANTED and the

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records produced in Mr. Bent’s supplemental expert disclosures and his opinions and testimony
be EXCLUDED in this matter.

____________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
 THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN FOURTEEN (14) DAYS

OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may
file written objections with the Clerk of the United States District Court for the District of New
Mexico pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections with the Clerk of
the District Court within the fourteen (14) day period if that party wants to have appellate
review of the Proposed Findings and Recommended Disposition. If no objections are filed,
no appellate review will be allowed. Pursuant to Fed. R. Civ. P. 72(b)(2), a party may
respond to another party’s objections within fourteen (14) days after being served with a
copy of the objections.

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