Burnett v. Gallia County, Ohio et al

Filing 19

OPINION AND ORDER granting 11 Motion to Strike. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/23/2015. (mas)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BELINDA BURNETT,
Plaintiff,
Civil Action 2:14-cv-2544
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

v.

GALLIA COUNTY, OHIO, et al.,
Defendants.

OPINION AND ORDER
Plaintiff, Belinda Burnett, brings this action against Defendants, Gallia County, Ohio,
and Gallia County employees, asserting that Defendants violated her rights under the Family
Medical Leave Act, 29 U.S.C. § 2601 (“FMLA”) and Ohio laws prohibiting disability and age
discrimination when they terminated her employment. This matter is before the Court for
consideration of Plaintiff’s Motion to Strike Defendants’ Late Expert Designation (ECF No. 11),
Defendants’ Memorandum in Opposition (ECF No. 14), and Plaintiff’s Reply (ECF No. 15). For
the reasons that follow, Plaintiff’s Motion to Strike is GRANTED.
On March 6, 2015, this Court issued a Preliminary Pretrial Order (“PPO”) containing the
deadlines that the parties had recommended to the Court in their Rule 26(f) report. (ECF No. 5.)
The Court set July 31, 2015, as the deadline for expert disclosures, with September 30, 2015, as
the deadline for rebuttal expert disclosures. The Court also set November 2, 2015, as the
discovery deadline and January 15, 2016, 2013, as the case-dispositive motion deadline.
In her March 20, 2015 initial disclosures, Plaintiff identified Nurse Practitioner Jeannie
Ingles as a witness. Neither party identified an expert on or before the July 31, 2015 deadline for

expert disclosures. On September 1, 2015, Defendants requested medical authorizations for the
release of Plaintiff’s medical records. Following negotiations concerning the temporal scope of
the authorizations, Defendants received the authorizations on September 25, 2015. On
September 30, 2015, Defendants served an Expert Disclosure Notice in which they identified Dr.
Michael E. Yaffe, M.D., as “a witness they may sue at trial to present evidence under Federal
Rules of Evidence 702, 703, or 705, along with subject matter, and summaries of fact opinions.”
(ECF No. 10.) Defendants neither attached a report nor disclosed the subject matter on which
they expected Dr. Yaffe to testify.
Plaintiff filed the subject Motion to Strike on October 1, 2015. (ECF No. 11.) Plaintiff
asserts that Defendants’ disclosure of Dr. Yaffe is untimely in violation of Federal Rule of Civil
Procedure 26(a)(2)(D) and also in violation of Rule 26(a)’s requirement that all expert
designations be accompanied by a report containing certain categories of information. Plaintiff
asserts that the foregoing deficiencies will significantly prejudice her if Dr. Yaffe is permitted to
provide expert testimony in light of the insufficient time remaining to conduct discovery and her
inability to offer a rebuttal expert. Plaintiff therefore submits that the sanction of exclusion is
warranted under Federal Rule of Civil Procedure 37(a).
In their Memorandum in Opposition, Defendants repeatedly emphasize that Dr. Yaffe “is
a responsive witness to the anticipated testimony of Jeanne Ingles,” (ECF No. 14 at 5 (emphasis
added)), not a primary expert. (Id. at 3, 4, and 5.) According to Defendants, even though
Plaintiff identified Ms. Ingles as a fact witness only, they should be permitted to identify a
responsive expert to rebut her anticipated testimony because “it is evident that Ms. Ingles is to be
called as an expert witness in her capacity as a certified nurse practitioner who allegedly treated

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Plaintiff’s hypertension.” (Id. at 3.) Defendants assert that they therefore timely identified Dr.
Yaffe on the September 30, 2015 deadline for rebuttal expert disclosures. Defendants explain
that the absence of an accompanying report is attributable to the delay in obtaining Plaintiff’s
medical records. Defendants represent that the report will be forthcoming should the Court
permit Dr. Yaffe to serve as a rebuttal expert and maintain that Plaintiff will suffer no prejudice
because they “will continue to cooperate in all discovery matters.” (Id. at 5.)
In her Reply, Plaintiff asserts that “[b]ecause Ms. Ingles is not an expert witness and was
never designated as such, Defendants have no basis for presenting a rebuttal expert.” (Pl.’s
Reply 3, ECF No. 14.) Plaintiff alternatively posits that even if Ms. Ingles was designated as an
expert, Defendants failure to timely disclose an expert report was neither substantially justified
nor harmless. In support of this contention, Plaintiff submits that Defendants have failed to offer
an explanation for their delay in requesting medical releases for Plaintiff’s medical records.
Plaintiff further maintains that permitting Dr. Yaffe to proceed as an expert will prejudice her in
the form of delay attributable to the need to conduct additional discovery, which she posits is
especially prejudicial because she remains unemployed.
Given Defendants’ clarification that they seek to utilize Dr. Yaffe as a rebuttal expert
only, the threshold issue for the Court is whether there exists any expert testimony for him to
rebut. Federal Rule of Civil Procedure 26(a)(2)(D)(ii) contemplates rebuttal expert testimony so
long as the rebuttal expert is disclosed within thirty days (or an alternative time frame set forth in
a court order) and “the evidence is intended solely to contradict or rebut evidence on the same
subject matter identified by another party under Rule 26(a)(2)(B).” Fed. R. Civ. P.
26(a)(2)(D)(ii); see also Fed. R. Civ. P. 26 advisory committee’s notes to 1993 amendments

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(describing rebuttal expert testimony as “expert testimony to be used solely to contradict or rebut
the testimony that may be presented by another party’s expert”).
On this point, as set forth above, Defendants identify Plaintiff’s disclosure of Nurse
Practitioner Jeanne Ingles, asserting that “it is evident” that she will be called as an expert
witness. (Defs.’ Mem. in Opp. 3, ECF No. 14.) But it is undisputed that Plaintiff neither
identified Ms. Ingles as an expert as required under Rule 26(a)(2)(A) nor provided disclosures
under either Rule 26(a)(2)(B) or 26(a)(C)(i). Consistently, Plaintiff makes clear in her Reply
that “Jeanne Ingles is nothing more than a standard fact witness . . . .” (Pl.’s Reply 1, ECF No.
15; Id. at 3 (“Ms. Ingles is not an expert witness . . . .”)).
As Plaintiff points out, Ms. Ingle’s status as a treating medical provider of Plaintiff does
not render her an expert witness. “The determinative issue is the scope of the proposed
testimony.” Fielden v. CSX Transp., Inc., 482 F.3d 866, 871 (6th Cir. 2007) (internal quotation
marks and citation omitted). As set forth above, Plaintiff has made repeated assurances that Ms.
Ingles’ testimony will be limited to that contemplated by a standard, lay witness under Federal
Rule of Evidence 701. This obviates the need for Defendants to call a rebuttal expert.
In sum, Plaintiff did not disclose an expert under Rule 26(a)(2)(A). It follows, then, that
Defendants may not offer Dr. Yaffe as a rebuttal expert. Plaintiff’s Motion to Strike is therefore
GRANTED. (ECF No. 11.)
IT IS SO ORDERED.

Date: December 23, 2015

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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