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Smith v. Old Dominion Freight Line, Inc.

United States District Court, W.D. Kentucky, Louisville Division

December 21, 2016

AMY C. SMITH, Plaintiff,


          Colin Lindsay, Magistrate Judge

         This 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 denied.


         Plaintiff 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[1] on May 18, 2016, and that Defendants disclosed two expert witnesses[2] 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.[3] 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.


         Rule 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).

         The 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).

         Looking 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).

         Further, 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).

         Following 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).)

         A. William Smock, M.S., M.D.

         In his 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 this case.

(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).

         Returning 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 ...

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