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Class Racing Stable, LLC v. Breeders' Cup Ltd.

United States District Court, E.D. Kentucky, Central Division, Lexington

January 31, 2018

CLASS RACING STABLE, LLC., Plaintiff,
v.
BREEDERS' CUP, LIMITED, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge

         This 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.

         I.

         This 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.

         Anticipated 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.

         II.

         Rule 26 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).

         Class 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).

         In 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 ...


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