United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
matter is pending for consideration of Plaintiff's motion
in limine to conclude that anticipated witnesses Joe
Masino and Tom Arndt need not be disclosed separately as
expert witnesses. [Record No. 60');">60] In the alternative, the
plaintiff asks that if the Court finds the witnesses are
required to be disclosed as experts, the Court grant it leave
to supplement the expert disclosures previously filed.
Id. For the reasons set forth below, the
plaintiff's motions will be denied.
case arises out of events surrounding the 2015 Breeders'
Cup. Plaintiff Class Racing Stable, LLC (“Class
Racing”) owns the thoroughbred Holy Lute. [Record No.
1-1, ¶ 22] Defendant Breeders' Cup operates the
Breeders' Cup World Championships. It hosted the 2015
Breeders' Cup at Keeneland Race Course in Lexington,
Kentucky. Id. at ¶ 9. Holy Lute was nominated
to run in one of the 2015 Breeders' Cup races.
Id. at ¶ 24. Class Racing alleges that
Breeders' Cup was negligent when it pre-entered Holy Lute
in the 2015 Breeders' Cup Sprint (Dirt) after the
thoroughbred's trainer told the Director of Racing for
Breeders' Cup that the horse was to be entered in the
Turf Sprint. Id. at ¶ 58.
witnesses Joe Masino and Tom Arndt are members and equity
owners of Class Racing. [Record No. 60');">60, p. 1] Class Racing
filed the present motions, alleging that it does not need to
disclose Masino and Arndt as experts. Specifically, it
contends that Masino and Arndt fall under an exception of
expert witness disclosures because both are witnesses who
have personal knowledge of the facts, rather than traditional
expert witnesses who rely on reports and investigations done
by others. Id. at p. 2. In the alternative, Class
Racing seeks leave to supplement its expert disclosures.
Id. at p. 3.
of the Federal Rules of Civil Procedure requires that parties
disclose the identity of any expert witness that they intend
to use at trial under Federal Rule of Evidence 702, 703, or
705. Fed.R.Civ.p. 26(a)(2)(a). Further, parties are required
to make expert disclosures “at the times and in the
sequence that the court orders.” Fed.R.Civ.P.
26(a)(2)(D). If a party fails to timely disclose its expert
witnesses, Rule 37 provides that:
the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is
harmless. In addition to or instead of this sanction, the
court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of
the orders listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1).
racing argues that Masino and Arndt are not required to be
disclosed as expert witnesses under an exception for
witnesses who have personal knowledge of the facts. It argues
that, while portions of their anticipated testimony may be
considered expert opinions, it is not required to disclose
Masino and Arndt because of an “actor/viewer”
exception mentioned in the Advisory Committee Notes
accompanying the 1970 amendments to Rule 26. The plaintiff
further contends that the 6th Circuit carved out this
exception in Pedigo v. UNUM Life Insurance Co. of
America, 145 F.3d 804, 807 (6th Cir. 1998).
Pedigo, the plaintiff, a physician and medical
examiner, attempted to offer his own opinion testimony
regarding bullet entry and exit wounds he suffered as a
result of a shooting. Id. The court found that his
attempt to remove himself from expert disclosure requirements
“based upon any ‘actor/viewer exception'
[were] without merit.” Id. It reasoned that
even though the plaintiff was “present during the
‘transactions or occurrences that are part of the
subject matter of the lawsuit, ' Pedigio's proposed
testimony did not involve information gained as a result of
his presence ...