Goldman et al v. Phillips & Sons Drilling, Inc. et al

Filing 98

ORDER DENYING DEFENDANT MID MARYLAND EXCAVATING, INC.'S MOTION 74 AND SUPPLEMENTAL MOTION 79 TO COMPEL EXPERT DISCLOSURES AND RESPONSES TO INTERROGATORIES. Objections are due within 14 days of this Order. Signed by Magistrate Judge James E. Seibert on 6/9/2014. (tlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
DAVID GOLDMAN and
ADAM GOLDMAN,
Plaintiffs,
v.

Civil No. 3:13-CV-152

PHILLIPS & SON DRILLING, INC., and
MID MARYLAND EXCAVATING, INC.,
Defendants.
ORDER DENYING DEFENDANT MID MARYLAND EXCAVATING, INC.’S MOTION
AND SUPPLEMENTAL MOTION TO COMPEL EXPERT DISCLOSURES AND
RESPONSES TO INTERROGATORIES
I.

INTRODUCTION

This matter is before the Court on Defendant Mid Maryland Excavating, Inc.’s Motion
(ECF No. 74) and Supplemental Motion (ECF No. 79) to Compel Expert Disclosures and
Responses to Interrogatories, filed on May 5, 2014 and May 14, 2014, respectively. Plaintiffs
filed a Response in Opposition to the Motion and Supplemental Motion along with four Exhibits
on May 20, 2014. (ECF No. 80). Defendant filed its Reply to Plaintiff’s Response on May 28,
2014. (ECF No. 81). On June 4, 2014, this Court held an evidentiary hearing and argument on
the motion. Plaintiffs appeared by counsel, Christopher P. Stroech, Esq., in person, Defendant
Mid Maryland Excavating, Inc., appeared by counsel, Austin Hovermale, Esq., on behalf of Eric
Hulett, Esq., in person, and Defendant Phillips & Son Excavating, Inc., appeared by counsel, W.
Michael Moore, Esq., by phone. The Court admitted as Defendants’ Exhibit 1, an April 11, 2014
letter from Defendant to Plaintiffs requesting that Plaintiffs supplement their expert disclosure.
No additional evidence or testimony was presented at the hearing.

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II. BACKGROUND
On March 13, 2014, Defendant filed its Second Set of Interrogatories to Plaintiffs and
requested that Plaintiffs identify all experts and submit all material required under Rule 26(b)(4).
On April 4, 2013, Plaintiffs filed their “Expert Witness Disclosures,” which listed three
individuals and provided a brief description of their work: 1) Roger Mattei, owner of Tri-State
Tree Service, provided Plaintiffs with estimates for tree removal and replacement; 2) Agents of
Powell’s Plumbing inspected Plaintiffs’ septic system; and 3) Greg Dash performed remedial
work at the property. Plaintiffs’ Responses to the interrogatories were due by April 29, 2014.
Plaintiffs did not respond by this date and Defendant filed its Motion to Compel Expert
Disclosures and Responses to Interrogatories on May 5, 2014. Defendant subsequently filed its
Supplemental Motion to Compel after receiving Plaintiffs’ Answers to the Defendant’s Second
Set of Interrogatories, which were mailed on May 2, 2014. However, Plaintiffs’ responses to
each interrogatory simply state “refer to Plaintiffs’ Expert Witness Disclosures,” which
Defendant argues are “wholly inadequate” under the Federal Rules of Civil Procedure.
Therefore, Defendant maintains that both the Expert Disclosures and responses to the
Defendant’s Second Set of Interrogatories are inadequate under Rule 26(a)(2).
III. DISCUSSION
A. Contention of the Parties
Defendant argues that Plaintiffs should be compelled to provide an expert report pursuant
to Rule 26(a)(2)(B) for each of their three designated experts, or if the Court finds there is
insufficient information to determine whether the individuals are indeed experts and whether
such reports are required, that Plaintiffs should, at minimum, be required to provide a summary
of facts and opinions to be offered by each expert as required by Rule 26(a)(2)(C). Lastly,

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Defendant argues Plaintiffs should be compelled to disclose the identity of all experts, rather
than merely referring to “agents” of Powell’s Plumbing.
Plaintiffs assert that the three witnesses will offer factual testimony because they were
each asked by Plaintiffs to perform remedial work at the property and/or offer estimates for
repair. Plaintiffs explained that the expert disclosures were made out of an abundance of caution
because the witnesses may offer their opinion as to what they observed and found on the
property. Therefore, Plaintiffs argue that their Expert Disclosures are sufficient because the three
individuals are merely fact witnesses. Plaintiffs further affirm that they have not retained the
witnesses and that each person was contacted prior to counsel being involved in this case.
IV. DISCUSSION
A. Rule 26(a)(2) Disclosure Requirements
Rule 26(a)(2) of the Federal Rules of Civil Procedure outline two provisions regarding
the disclosures required for expert witnesses. Pursuant to Rule 26(a)(2), a party is required to
provide a written report along with the identification of the expert witness “if the witness is one
retained or specially employed to provide expert testimony in the case or one whose duties as the
party's employee regularly involve giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B).
However, if a party is not required to provide a written expert report, the “disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of
Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is
expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). When persons are not classified as expert
witnesses, they may still fall in the category of expert witnesses called “hybrid witnesses,” which
require disclosures under Rule 26(a)(2)(C). The commentary to Rule 26 explains:
A witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify
as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or
705. Frequent examples include physicians or other health care professionals and
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employees of a party who do not regularly provide expert testimony. Parties must identify
such witnesses under Rule 26(a)(2)(A) and provide the disclosure required under Rule
26(a)(2)(C). The (a)(2)(C) disclosure obligation does not include facts unrelated to the
expert opinions the witness will present.
Commentary to Fed. R. Civ. P. 26(a)(2)(C) (2010); see also Sullivan v. Glock, Inc., 175 F.R.D.
497, 500 (D. Md. 1997) (finding that the more detailed disclosure required by Rule 26(a)(2)(B)
was not required for hybrid witnesses and “each of the health care experts disclosed by the
plaintiff falls into the category of expert witnesses commonly described as ‘hybrid witnesses,’”
to which Rule 26(a)(2)(A) applies.”).
When determining whether a witness is an expert who has to submit a report under Rule
26(A)(2)(B) or a “hybrid” witness that is only required to make disclosures under Rule
26(A)(2)(C), the court should not “focus solely on the status of the expert” but should instead
focus on “the nature of the testimony which will be offered at trial.” See Sullivan, 175 F.R.D. at
500. For example, “[i]f a treating physician forms an opinion of the causation of an injury to a
patient and the prognosis of the patient's condition during the treatment then such opinion may
be expressed by the treating physician without the necessity of a report under Fed. R. Civ. P.
26(a)(2)(B).” Hall v. Sykes, 164 F.R.D. 46, 48 (E.D. Va.1995) (emphasis added). In this case, the
court did not require the treating physician to prepare an expert report. Id. at 49.
Unlike expert witnesses or hybrid witnesses, however, when a person is merely a fact, or
lay witness, Rule 26 of the Federal Rules of Civil Procedure only requires the party to disclose
the name, address and telephone number of each witness. Fed. R. Civ. P. 26(a)(3)(A). A fact
witness whose testimony is in the form of an opinion must be: “(a) rationally based on the
witness's perception; (b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.” Fed. R. Evid. 701. If a fact witness’s testimony
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appears to cross over into expert testimony under Rules 702 and 703 of the Federal Rules of
Evidence, then such a witness should be classified as “hybrid witness,” which requires the
proper disclosures under Rule 26(a)(2)(C). See Kobe v. Haley, CA 3:11-1146-TMC, 2013 WL
4067921 (D.S.C. Aug. 12, 2013).
B. Legal Analysis
1. Roger Mattei
Disclosure: Mr. Mattei owns Tri-State Tree Service and is a tree expert. He is a fact witness that
will provide expert testimony regarding the value of the trees that were improperly removed
from the Plaintiffs’ property by the Defendants. More specifically, he will testify as to the
written report and attached estimates previously produced.
Plaintiffs attached to their Response a handwritten “report” by Mr. Mattei dated February
17, 2012. (ECF No. 80-2 at 1). The report stated that he has worked for thirty-six (36) years as an
arborist and that he examined twenty (20) oak trees in Plaintiffs’ front yard and “found the root
system’s damaged by a loader.” He further noted that the trees “may fall over any time, onto the
house or electric wires…the trees in the front yard need to come down as soon as possible.”
Plaintiffs also attached as an exhibit three invoices signed by Mr. Mattei. (ECF No. 80-2 at 2-4).
An invoice from December 23, 2011 states “remove 20 large trees/ destroyed root system/
damage done by excavator” and lists the estimated price of removal. Two invoices dated January
21, 2012 list the replacement cost for thirty (30) trees in the backyard and twenty (20) trees in the
front yard.
Defendant points to an affidavit signed by Mr. Mattei on April 14, 2014 stating that he
has long-term memory problems due to chemotherapy for cancer and he did not recall visiting
Plaintiffs’ property or performing any work at the property. (ECF No. 81-1). However, Mr.
Mattei stated that he did prepare the three “bid sheets,” which provided estimates to remove and
replace trees on Plaintiffs’ property. (Id.). Defendant argue that because Mr. Mattei never visited
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the property and did not do any work on the property that he is not a fact witness and should be
considered an expert witness because the only testimony he can provide is based on information
supplied to him by Plaintiffs.
Plaintiffs argue that Mr. Mattei may offer testimony as to the cost to remove and replace
the trees on Plaintiffs’ property, which is contained in the estimates he made on December 23,
2011 and January 21, 2012. (ECF No. 80-2). Plaintiffs assert that Mr. Mattei did in fact inspect
Plaintiffs’ property and then prepared the two estimates for removal and replacement of trees.
Plaintiffs argue that any question as to Mr. Mattei’s inability to remember being on the property
would be a credibility issue at trial rather than a reason to strike the witness.
The Court finds that Mr. Mattei is a fact witness as long as his testimony is confined to
discussing the estimates he provided Plaintiffs regarding tree replacement and removal. Any
issues involving Mr. Mattei’s memory of visiting the property or preparing the estimates is a
credibility issue to be raised at trial. Accordingly, the Court DENIES Defendant’s Motion to
Exclude Mr. Mattei because he is not an expert witness and Plaintiffs were not required to
submit a written expert report under Rule 26(a)(2)(B) or a disclosure under Rule 26(a)(2)(C).
2. Agents of Powell’s Plumbing
Disclosure: We expect them to testify as to the condition they found our septic system in.
Agents of Powell’s Plumbing are fact witnesses that may offer expert testimony outlining the
damage to the septic field and related system caused by the Defendants. More specifically, they
will testify as to the information contained in the written invoices previously produced.
Plaintiffs attached as an exhibit, two invoices from Powell’s Plumbing, Inc. regarding
repairs to Plaintiffs’ septic system. (ECF No. 80-3). The invoice dated October 17, 2011
indicates the cost for locating and digging up the septic tank and is signed by technician, “Paul
Billy.” The invoice dated November 4, 2011contains technician notes from “Justin/Bryan”
regarding a service call made to Plaintiffs’ property that assesses damage to the septic system.
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Defendant argues that Plaintiffs failed to identify the “agents” that would testify from
Powell’s Plumbing thus making the disclosure insufficient under Rule 26. Moreover, Defendant
asserts that the description provided in the disclosure is an inadequate summary of the facts and
opinions to which the witnesses are expected to testify as required under Rule 26(a)(2)(C) and
that Plaintiffs failed to provide expert reports for the witnesses under Rule 26(a)(2)(B).
At the evidentiary hearing, Plaintiffs agree that the disclosure needed to be supplemented
to sufficiently identify the agents but also assert that the agents would only serve as fact
witnesses. Plaintiffs assert that agents of Powell’s Plumbing came to Plaintiffs’ property,
assessed the septic system and then made repairs. Plaintiffs state that their testimony will be
describing what they found and what repairs they completed. Plaintiffs also affirm that the agents
would not testify, nor be able to testify, as what or who caused the damage they repaired.
The Court finds that the agent’s testimony, as described by Plaintiffs’ counsel, would not
rise to the level of providing an expert opinion; such testimony appears to be limited to the facts
observed and repairs made on Plaintiffs’ property. However, the Court ORDERS Plaintiffs to
adequately supplement the identity of the agent from Powell’s Plumbing as part of their pre-trial
disclosures. Accordingly, the Court DENIES Defendant’s Motion to Exclude an agent from
Powell’s Plumbing because such an agent, testifying to their observations and work on the
property, would not qualify as an expert witness pursuant to Rule 26(a)(2)(B) nor a hybrid
witness requiring a more detailed disclosure under Rule 26(a)(2)(C).
3. Greg Dash
Disclosure: Mr. Dash is a fact witness that may offer expert testimony regarding the conditions
he found at the property, what he determined would be needed to remedy the problems, and the
repairs he performed. The substance of the facts is that he performed all of the repairs we have
made to the property so far. The opinions we expect him to testify to are the opinions that he
rendered us regarding the improper installation of the well, as well as any opinions he may have
formed while completing the repairs. The facts he provided was a general summary of the issues
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we were facing with the property, such as the wide open septic tank, the impassible driveway we
were left with, and the erosion from the clearing. He is expected to testify as to his written report
and remedial work performed as set forth in the invoices previously produced.
Plaintiffs attached as an exhibit email correspondence between Plaintiffs and Mr. Dash
from February 2012 outlining what Mr. Dash’s company found when “pulling” Plaintiffs’ well.
(ECF No. 80-4). Plaintiffs also attached estimates for repairs to the septic system dated
December 6, 2011, January 24, 2012, May 12, 2012 and June 19, 2012 and invoices for work
completed on February 18, 2012, May 12, 2012, July 21, 2012 and May 10, 2013.
Defendant argues that when deposed, Mr. Dash first stated he was retained as an expert in
this case, but then later stated he was not paid as an expert for the case but rather paid for his
work on Plaintiffs’ property. Defendant asserts that if Mr. Dash is an expert, an expert report
must be provided or a more detailed summary of the facts and opinions he will testify to must be
disclosed. Additionally, Defendant argues that Plaintiffs refer to Mr. Dash’s “written report,”
which has not been provided to Defendant.
Plaintiffs argue that Mr. Dash simply performed remedial work on Plaintiffs’ property
and that Mr. Dash was not retained as an expert. Plaintiffs assert that Mr. Dash will testify to
what he found at the property and the problems he observed with Plaintiffs’ well. Plaintiffs also
stated that Defendant took a five hour deposition of Mr. Dash and have thoroughly questioned
him as to what facts he may testify to regarding the property.
The Court finds that Mr. Dash was not retained as an expert, but rather was hired to
complete repairs on Plaintiffs’ property. As such, the Court finds that Mr. Dash is a fact witness
as long as his testimony involves the actual work performed and observations made while
repairing Plaintiffs’ property. Accordingly, the Court DENIES Defendant’s Motion to Exclude

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Mr. Dash because he was not required to submit a written expert report under Rule 26(a)(2)(B)
nor a more detailed summary of facts or opinions under Rule 26(a)(2)(C).
V. CONCLUSION
The Court finds that the three individuals listed by Plaintiffs are not expert witnesses but
instead appear to be fact witnesses who will address what they observed on Plaintiffs’ property,
including possible damage to the property and septic system. Accordingly, the Court DENIES
Defendant’s Motion to Compel. However, the Court ORDERS Plaintiffs to disclose whether the
three witnesses will be testifying to anything other than facts, such as opinions pursuant to Rules
702, 703 or 705 of the Federal Rules of Evidence. If Plaintiffs intend to have the witnesses
testify as to their opinions under the Federal Rules of Evidence 702, 703 and 705, then such
witnesses should be classified as “hybrid witnesses” as described above and Plaintiffs must
supplement their disclosures pursuant to Rule 26(a)(2)(C).
Any party may, within fourteen (14) days of this Order, file with the Clerk of the Court
written objections identifying the portions of the Order to which objection is made, and the basis
for such objection. A copy of such objections should also be submitted to the District Court
Judge of Record. Failure to timely file objections to the Order set forth above will result in
waiver of the right to appeal from a judgment of this Court based upon such order.
Filing of objections does not stay this Order.
The Clerk of the Court is directed to transmit a copy of this Order to parties who appear
pro se and any counsel of record, as applicable.
IT IS SO ORDERED.
DATED: June 9, 2014
/s/ James E. Seibert
JAMES E. SEIBERT
UNITED STATES MAGISTRATE JUDGE 
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