United States District Court, W.D. Kentucky, Louisville Division
AMY C. SMITH, Plaintiff,
OLD DOMINION FREIGHT LINE, INC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Lindsay, Magistrate Judge
matter is before the Court on Plaintiff's motion to
exclude or limit the opinions of two of Defendants'
rebuttal experts, William Smock and Lane VanIngen (DN 52).
Defendants filed a response in opposition (DN 59) and
Plaintiff filed a reply (DN 66). The motion is now ripe for
review. For the following reasons, Plaintiffs' motion is
asks the Court, pursuant to Rules 26(a)(2)(D)(ii) and
37(c)(1) of the Federal Rules of Civil Procedure, to exclude
and/or limit the opinions of two rebuttal experts proffered
by Defendants. Pursuant to a series of amended scheduling
orders, the following deadlines applied to the parties'
disclosures of expert opinions: (1) Plaintiff's expert
witness deadline --May 18, 2016; (2) Defendants' expert
witness deadline -- June 20, 2016; and (3) both parties'
rebuttal expert witness deadline -- July 13, 2016. (DN 29,
34.) The parties appear to agree that Plaintiff served on
Defendants four expert reports on May 18, 2016, and that
Defendants disclosed two expert witnesses who jointly
submitted one report on June 20, 2016. Then, on July 13,
2016, Plaintiff disclosed two rebuttal expert reports,
authored by David Stopper and Nancy Grugle, two of the
individuals who she identified in her initial expert
disclosure. On the same date, Defendant identified five new
individuals as rebuttal experts. Plaintiff now contends that
two of the purported rebuttal experts disclosed by
Defendants, William Smock and Lane VanIngen, were in reality
new expert witnesses offering new opinions,
rather than opinions designed to rebut the expert reports
proffered by Plaintiff. Defendants disagree, arguing that
their rebuttal experts intended to -- and did -- rebut the
expert opinions proffered by Plaintiff.
26(a)(2) of the Federal Rules of Civil Procedure sets forth
certain parameters applicable to expert testimony. Absent a
stipulation or court order to the contrary, disclosures of
“evidence  intended solely to contradict or rebut
evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B) or (C)[ must be made] within 30
days of the other party's disclosure.” Fed.R.Civ.P.
26(a)(2)(D)(ii). In this case, it is undisputed that
Defendants served Smock and VanIngen's reports in
compliance with the Court's July 13, 2016 deadline for
disclosure of rebuttal experts. The question before the Court
is whether Smock and VanIngen's reports were within the
permissible scope of rebuttal experts provided in the Rule --
that is, whether they were “intended solely to
contradict or rebut evidence on the same subject
matter” identified by one or more expert witnesses
disclosed by Plaintiff. Fed.R.Civ.P. 26(a)(2)(D)(ii).
parties state in their briefs that there is little case law
from our district applying Rule 26(a)(2)(D)(ii). This is
true; however, after completion of the parties' briefing
on the instant motion, Magistrate Judge Dave Whalin issued a
memorandum opinion and order addressing a number of motions
in limine, including arguments regarding rebuttal experts.
Magistrate Judge Whalin's opinion is instructive with
respect to both the permissible scope of rebuttal expert
opinions and the analytical approach to questions involving
Rule 26(a)(2)(D)(ii). See Louisville Mktg. v. Jewelry
Candles, LLC, 2016 U.S. Dist. LEXIS 153328, *26-34 (W.D.
Ky. Nov. 4, 2016). In the Jewelry Candles case,
Magistrate Judge Whalin considered whether a defense
expert's second report was properly considered an initial
report or a rebuttal report. The plaintiff argued that the
report in question was should be classified as an initial
report and that it should have an opportunity to rebut the
opinion. The court examined the contents of the defense
expert's report, as compared to the reports of three of
plaintiff's experts to whom he purported to respond.
Id. at *29. The court concluded that the defense
expert's report “addresse[d] the same subject
matter as [the plaintiff's experts] -- namely, whether
‘jewelry in candles' and ‘jewelry
candles' are generic terms, ” and that his report
“provide[d] a counterpoint for [plaintiff's] expert
reports indicating the terms and logos were generic.”
Id. at *31. The court went on to state that the
defense expert's report exceeded the scope of
“simply responding” to the plaintiff's
experts, but it concluded that “any matters regarding
the potentially excessive scope of his rebuttal testimony can
be challenged through objections and rigorous
cross-examination.” Id. at *31-32; see
Id. at *32 (further finding that report identified three
flaws in a third plaintiff's expert's report and
refuted those points).
beyond the Sixth Circuit, the Northern District of Illinois
provided a helpful, albeit non-binding, discussion of the
issue in Green v. Kubota Tractor Corporation, 2012
U.S. Dist. LEXIS 56770 (N.D. Ill. Apr. 24, 2012). In
Green, the defendant argued that a rebuttal expert
identified by plaintiffs did not actually rebut
defendant's experts, but rather, “merely covered
the same subjects as plaintiffs' originally disclosed
experts, ” and therefore, his opinions should have been
disclosed at the time of plaintiffs' original expert
opinions. Id. at *8-9. The court first described the
opinions set forth in the purported rebuttal report and then
examined it in light of the opinions offered by
defendant's experts. The court found that the rebuttal
expert's opinions were “specifically targeted at
the expert evidence proffered by the defendants and . . .
either contradict[ed] or rebut[ted] that evidence.”
Id. at *13 (laying out differing opinions among the
parties' experts regarding a certain type of technology
used in lawn mowers).
the Green court acknowledged that the rebuttal
expert opinions “touch[ed] upon subjects previously
addressed by” certain of plaintiffs' initially
disclosed experts, but stated that “the mere fact that
opinions offered in a rebuttal report touch upon the same
subjects covered in an initial expert report [by the same
party] does not require that the rebuttal reports be
stricken.” Id. at *13 (discussing City of
Gary v. Paul Shafer, 2009 U.S. Dist. LEXIS 41004 (N.D.
Ind. May 13, 2009)). The court went on to decline to adopt a
rule that would exclude a rebuttal opinion that could have
been offered as part of the party's initial expert
disclosures, as that “would open the doors to
‘vast amounts of arguably irrelevant material in an
expert's report on the off chance that failing to include
any information in anticipation of a particular criticism
would forever bar the expert from later introducing relevant
material.'” Id. at *17-18 (quoting
Shafer, 2009 U.S. Dist. LEXIS 41004 at *5).
the approaches employed in the cases discussed above, the
Court will examine Smock's and VanIngen's purported
rebuttal expert reports at issue in light of the Plaintiff
expert reports that they purport to rebut: those of Marks and
Stopper, respectively. While the motion, response, and reply
all discuss the extent to which Smock and VanIngen rebut the
expert reports of Marks and Stopper, respectively, the
parties have not filed Marks and Stopper's reports as
exhibits to their briefs. Fortunately, the two reports have
been filed elsewhere in the record, so they are available for
the Court's review. (See DN 96-8 (Stopper's
expert report, exhibit to Plaintiff's response to DN 72);
DN 98-5 (Marks's expert report, exhibit to
Plaintiff's response to DN 73).)
William Smock, M.S., M.D.
report, Smock sets forth an itemized list of the documents
that he reviewed, and states that the “purpose of [his]
review was to examine the medical issues and facts in order
to develop opinions in this case.” (DN 52-2 at 1-2.) As
Plaintiff emphasizes, Smock makes only one direct reference
to Marks, whose opinion Defendants argue Smock intends to
rebut. Smock states as follows:
I have reviewed the report of Dr. Marks and the information
related to [Defendant Danny] Webb's medications and
medical conditions. I strongly disagree with many of his
opinions and speculative conclusions, as there is no
foundation based upon the medical or forensic evidence in
(Id. at 3.) However, the frequency with which Smock
mentions Marks's name, or whether he structures his
opinion in the same way as Marks's opinion, is not
determinative of whether Smock's opinion is deemed a
rebuttal opinion for purposes of Rule 26. The question before
the Court is whether Smock's opinion is “intended
solely to contradict or rebut evidence on the same
subject matter identified by” Marks.
Fed.R.Civ.P. 26(a)(2)(D)(ii) (emphasis added).
to Smock's report, after providing a narrative analysis,
he offered five opinions regarding Webb's medical
condition at the time of the motor vehicle accident
underlying this case.
1. There is no medical or forensic evidence any of Mr.
Webb's medical conditions played a role in or contributed
to the incident on March 7th, 2015.
2. There is no medical or forensic evidence any of Mr.
Webb's prescribed medications played a role in or
contributed to ...