Talley v. City of Charlotte et al

Filing 45

ORDER denying 36 Motion to Strike Plaintiff's Expert Reports and to Exclude Plaintiff's Expert Testimony. The issue of expenses or other sanction is reserved for further consideration at the conclusion of trial, and defendants are allowed 60 days within which to designate and serve the report of any rebuttal expert on the issue of present value if so desired. Signed by District Judge Max O. Cogburn, Jr on 2/12/2016. (chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00683-MOC-DCK
DARLENE TALLEY,

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Plaintiff,
Vs.
CITY OF CHARLOTTE
MECKLENBURG COUNTY
JOHN DOE
JASON VAN AKEN
JOSEPH WHITE
DANNY LEUNG
WAYNE GOODE III,
Defendants.

ORDER

THIS MATTER is before the court on defendants’ Motion to Strike Plaintiff’s Expert
Reports and to Exclude Plaintiff’s Expert Testimony.

The court has carefully considered

defendants’ supporting memorandum, plaintiff’s “Motion in Opposition,”1 and defendants’ Reply.
As accurately summarized in defendants’ Reply, the expert report of Lurae Ahrendt
(Certified Life Care Planner) was incomplete and that the report of Gary Albrecht (economist) was
served more than five months out of time and does not comply with the disclosure requirements
of Rule 26(a)(2)(B)(v)( and (vi).

Defendants contend that plaintiff’s supplementation of the

Ahrendt Report on or about November 24, 2015, is insufficient as it fails to explain the delay and
does not comply with the court’s Case Management Plan. Essentially, defendants argue that
plaintiff has not and cannot show good cause or excusable neglect justifying the non-compliance

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Counsel for plaintiff is reminded that the pleading should have been captioned Response in Opposition as
provided in L.Cv.R. 7.1.

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with the deadlines provided in the Pretrial Order. As to the Albrecht Report, plaintiff contends that
she did not know it was necessary to have an economist render an opinion on the present value of
the life care plan and that such opinion could not, in any event, be reached until the life care plan
was complete. Defendants point to the North Carolina Pattern Jury Instructions, which they
believe has long suggested the requirement of obtaining expert testimony on the issue of present
value of future damages. See N.C.P.I. Civ. § 810.16. While North Carolina law has long held that
“damages for losses which may occur in the future, such as the future interest rate payments in this
case, must be reduced to the present worth of such losses, and it is error not to do so,” Watts v. N.
Carolina Dep't of Env't & Nat. Res., 182 N.C. App. 178, 186 (2007), aff'd in part as modified, 362
N.C. 497 (2008), the court finds nothing in the pattern instruction or reported state cases that
mandates that a plaintiff present evidence of present value through expert opinions, discussed at
greater length infra. Defendants argue that the court should strike both reports as being noncompliant with the Case Management Plan.

I.
Defendants argue that the Albrecht Report should be stricken because it does not comply
with Rule 26(a)(2)(B) or the Case Management Plan. Although defendants correctly cite to a
number of cases, the court has taken into consideration the recent amendments to the Federal Rules
of Civil Procedure, which came into effect December 1, 2015. Overall, the 2015 amendments
instruct that the Rules are to be “employed by the court and the parties” to secure just and speedy
adjudication. While defendants cite Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306 (M.D.N.C.
2002) for the proposition that Rule 26(e) only allows for supplementation of an expert when the
report is misleading, this court reads the “incorrect or incomplete” provision of the rule as being
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in the disjunctive and concludes that the words “incorrect” and “incomplete” have distinct
meanings which can be discerned from a plain reading of words. Fed.R.Civ.P. 26(e)(1)(A)
(emphasis added). Here, the Ahrendt Report was clearly “incomplete” for the reasons provided in
defendants’ motion. Plaintiffs have through supplementation corrected that problem well within
the meaning of the term “incomplete” as the initial report was clearly incomplete when served.
Defendants correctly point to a further error of counsel in not providing the reason for such
omission in admissible form; while that is clearly a problem, what the court is ultimately concerned
with is whether striking the expert report would be a just resolution. Had such been made in
admissible form, the court would have certainly allowed the supplementation. Considering the
allegations of the Complaint – that plaintiff suffered injuries while in police custody, including
brain damage – it would not be just to strike plaintiff’s damage expert. Inasmuch as trial is still
seven months away, any misstep of counsel is substantively harmless as defendants have plenty of
time to counter any newly promulgated opinion. See Southern States Rack & Fixture, Inc. v.
Sherwin–Williams Co., 318 F.3d 592, 597 (4th Cir. 2003). The court will not strike the Ahrendt
Report.

II.
As to the Albrecht Report, the problem is that such report comes months after the expert
report deadline passed and was in no manner preceded by a Motion for Leave to File Expert Report
Out-of-Time. While defendants argue that it should have been obvious to plaintiff’s counsel that
it would be necessary to employ an economist to render a present value opinion well before the
deadline set in the Pretrial Order, the court is not as certain that the pattern instruction creates a
per se rule that a plaintiff must employ an expert economist for a jury to determine present value:
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810.16 PERSONAL INJURY DAMAGES - FUTURE WORTH IN PRESENT
VALUE.
Any amount you allow as future damages for [medical expenses] [loss of earnings]
[pain and suffering] [scars and disfigurement] [loss (of use) of part of the body]
[permanent injury] [state any other type of damage supported by the evidence] must
be reduced to its present value, because a smaller sum received now is equal to a
larger sum received in the future.
(Notwithstanding, there is evidence before you that the calculation of the plaintiff's
future [medical expenses] [loss of earnings] [pain and suffering] [scars and
disfigurement] [loss (of use) of part of the body] [permanent injury] [state any other
type of damage supported by the evidence] [has] [have] already been reduced to
[its] [their] present value(s). Whether [it] [they] [has] [have] in fact been so reduced
is for you to determine from the evidence using logic and common
sense. Therefore, if you find that any type of future damage has already been
reduced to its present value, you must not reduce it again.)
N.C.P.I. Civ. § 810.16. Indeed, the court can find no clear requirement in North Carolina case
law, the pattern instruction, or relevant federal case law that plaintiff must present expert evidence
of the present value of her claim for future damages. As one commentator observes,
[t]he courts are split on whether it is necessary to introduce expert testimony to
explain the concept of discounting an award to present value or to supply suggested
discount and inflation rates and/or mathematical calculations. While some courts
have permitted, for example, a local banker to testify as to the fair return on a safe
investment, or a mathematician an actuary, or an accountant to testify concerning
the procedure by which the reduction to present value should be calculated, other
courts have held that expert testimony is permitted but not required, and that the
jury should generally be left to its own discretion as to what discount factors should
be used.
3 Stein on Personal Injury Damages Treatise § 15:10 (3d ed.). This court concludes that it was
only in reaction to defendants’ motion that plaintiff concluded that a present value expert was
required. While not required, such expert opinion would certainly be helpful to a fact finder.
The court does agree with defendants that the designation and report come well after the
deadline and without leave; however, the just solution is not to strike the expert, but to allow
defendants an opportunity to hire their own rebuttal expert and to request additional expenses such
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out-of-time report has caused (beyond the regular costs of the rebuttal expert) at the conclusion of
trial. As far as the failure to request leave, the court views that issue of non-compliance as more
of a failure to comply or, perhaps, understand the Federal and Local Rules, and finds the
appropriate remedy is an educational one, which the court will consider at the close of trial. Again,
striking the expert opinion would not be proportional and would in no manner further a just result
in this case. Southern States Rack & Fixture, Inc., supra. If defendants need additional time to
hire a present value rebuttal expert, leave to designate a rebuttal expert out-of-time is granted and
defendants will have 60 days within which to designate and serve the report of such a rebuttal
expert.

ORDER
IT IS, THEREFORE, ORDERED that defendants’ Motion to Strike Plaintiff’s Expert
Reports and to Exclude Plaintiff’s Expert Testimony (#36) is DENIED, the issue of expenses or
other sanction is reserved for further consideration at the conclusion of trial, and defendants are
allowed 60 days within which to designate and serve the report of any rebuttal expert on the issue
of present value if so desired.

Signed: February 12, 2016

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