D.G. et al v. Henry et al
Filing
557
OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 539 Motion for Leave to File Document(s) (jcm, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
D.G., by Next Friend G., Gail Stricklin, et
al.,
Plaintiffs,
vs.
Case No. 08-CV-74-GKF-FHM
C. BRAD HENRY, in his official capacity
as Governor of the State of Oklahoma,
et al.,
Defendants.
OPINION AND ORDER
Plaintiff Children’s Motion for Leave to File Two Rebuttal Expert Reports, [Dkt. 539],
is before the undersigned United States Magistrate Judge for decision. The motion has
been briefed on an expedited schedule and is ripe for decision.
Pursuant to the Second Amended Scheduling Order Plaintiffs served their expert
witness reports on March 15, 2011 and Defendants served their expert witness reports on
June 9 and June 15, 2011. Plaintiffs now seek leave to name two additional expert
witnesses and file reports, “solely to rebut certain assertions contained in the reports of
Defendants’ proposed experts regarding the work performed by Dr. Jerry Milner and Mr.
John Goad, two of Plaintiffs’ experts.” [Dkt. 539, p. 1]. Plaintiffs contend that Defendants’
experts criticize the reports by Dr. Milner and Mr. Goad and raise what Plaintiffs call “highly
technical statistical issues.” Id. at 4. Plaintiffs assert that Dr. Milner and Mr. Goad are not
experts in statistics beyond what are usually and customarily used in their fields. Plaintiffs
therefore seek to name additional expert witnesses to rebut the statistical arguments
asserted by Defendants’ statisticians and also to rebut the criticisms about the
methodology employed by Dr. Milner and Mr. Goad. According to Plaintiffs, Fed. R. Civ.
P. 26(a)(2)(D)(ii) expressly contemplates the use of such rebuttal reports and courts in the
Tenth Circuit have permitted such reports when the rebuttal experts have special expertise
in the matters under attack.
Defendants argue that no additional expert witnesses should be permitted.
Defendants assert that the experts will not be offering rebuttal evidence but evidence to
defend and bolster the work performed by Dr. Milner and Mr. Goad. Defendants assert
that these witnesses should be able to defend their own work. They further assert that
interjecting new expert witnesses at this late date would be prejudicial to them.
Fed. R. Civ. P. 26(a)(2)(D) provides in relevant part:
Absent a stipulation or court order, [expert] disclosures must
be made:
*
*
*
(ii) if the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified [in another
party’s expert report], within 30 days after the other party’s
disclosure.
While the testimony of the expert witnesses Plaintiffs seek to add will challenge the
testimony of Defendants’ experts, the proposed testimony does not constitute rebuttal
evidence as that term is used in Rule 26(a)(2)(D)(ii). Plaintiffs have not asserted that
Defendants’ expert reports identified new subject matter. Instead, Defendants’ expert
reports respond to and rebut the subjects identified by Plaintiffs’ experts. Plaintiffs say as
much in their own papers: “[t]he eight expert reports served by Defendants addressing Dr.
Milner and Mr. Goad assert various statistical methodological challenges to the Milner and
Goad reports and, in that sense, are largely rebuttal in nature.” [Dkt. 539, pp. 1-2]. The
additional expert evidence Plaintiffs seek to add is more properly viewed as strengthening
or bolstering the testimony of Plaintiffs’ own experts, Dr. Milner and Mr. Goad. Such
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evidence is not “intended solely to contradict or rebut evidence on the same subject matter
identified by another party.” The undersigned finds that Plaintiffs’ proposed additional
expert testimony is not rebuttal evidence as that term is used in Rule 26(a)(2)(D)(ii) and
that rule does not provide authority for Plaintiffs request.
The refusal or allowance of rebuttal testimony is a matter of the court’s discretion.
Koch v. Koch Industries, Inc., 203 F.3d 1202, 1224 (10th Cir. 2000).1 The undersigned
finds that the factors in this case counsel against granting permission to name additional
expert witnesses.
In this case Plaintiffs’ experts Dr. Milner and Mr. Goad submitted expert reports. In
response Defendants produced expert witness reports which Plaintiffs describe as
rebutting their experts. Plaintiffs assert the need to file reports by additional experts to
rebut Defendants’ experts. In reality, what Plaintiffs seek is to file what would essentially
be a sur-rebuttal expert witness report. Such a report would serve to bolster or strengthen
the testimony of Plaintiffs’ original experts. Plaintiffs have not demonstrated that such
evidence is necessary to the presentation of their case. In fact, they claim that Dr. Milner
and Mr. Goad are qualified to and capable of defending their own reports. In view of the
foregoing, the undersigned finds that Plaintiffs have not demonstrated the need for the
addition of more experts so as to disrupt the schedule under which the court and the
parties have been operating.
1
The undersigned is not persuaded by the cases cited by Plaintiffs which have perm itted the addition
of rebuttal expert witnesses. Those cases were decided on the basis of the particular circum stances
presented which differ from the ones presented here and dem onstrate the application of the court’s discretion
under the facts presented. They are not particularly instructive because each set of facts m ust be analyzed
on its own m erits. .
3
Further, the addition of the witnesses would prejudice Defendants because it is not
reasonable to expect Defendants to receive additional expert witness reports on July 15,
evaluate the reports, depose the witnesses, and file Daubert motions by August 1. The
addition of more expert witnesses also opens up the possibility of the need for Defendants
to file further expert witness reports.
In Tyson the Court was faced with an analogous situation. The Court considered
whether a party should be permitted to supplement an expert report and ruled that the right
to supplement under Rule 26(e) is “not without limits.” Id. at 1. The Court noted several
cases where courts have ruled that supplemental reports that state additional grounds or
rationales or seek to strengthen or deepen opinions expressed in the original expert report
exceed the bounds of permissible supplementation and are subject to being excluded. Id.
(quoting Cohlmia v. Ardent Health Servs., 2008 WL 3992148 (N.D. Okla), further citations
omitted). Were it otherwise, a situation could develop where there would be no finality to
expert reports as each side could continue to supplement to buttress its case and modify
previous opinions. Such a system would eviscerate the expert report requirements of Rule
26, would wreak havoc in docket control, and would amount to unlimited expert opinion
presentation. Id. at *2. The same concerns are reasonably applied to rebuttal expert
witnesses in this case.2
In sum, Plaintiffs will not be granted the opportunity to name two additional expert
witnesses because: Plaintiffs’ general description of the proposed testimony indicates that
the additional evidence is not necessary to the presentation of Plaintiffs’ case; adding
2
In Oklahoma v. Tyson Foods, Inc., 2009 W L 252337 (N.D. Okla.), the Court also denied leave to
subm it rebuttal expert reports.
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evidence would merely serve to strengthen Plaintiffs’ expert witnesses testimony; adding
more expert witnesses at this stage would be disruptive to the schedule; and the addition
of expert witnesses at this stage would be prejudicial to Defendants.
Plaintiff Children’s Motion for Leave to File Two Rebuttal Expert Reports, [Dkt. 539],
is DENIED.
SO ORDERED this 15th day of July, 2011.
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