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Hampton v. Bob Evans Transportation Co., LLC

United States District Court, E.D. Kentucky, Southern Division, London

April 8, 2019



          Danny C. Reeves United States District Judge.

         Defendants Bob Evans Transportation Company, LLC, and Joe Morrison have moved to strike Plaintiff Wendell Hampton's second supplemental expert disclosures filed on March 1');">1');">1');">1, 201');">1');">1');">19. [Record No. 39] The defendants assert that Hampton's recent disclosures identify an expert whose proposed opinions do not constitute rebuttal evidence and should be stricken as untimely. [Id.] The defendants' motion will be granted for the reasons explained below.


         This action arises from an October 1');">1');">1');">18, 201');">1');">1');">17, motor vehicle accident involving Hampton and Morrison. [Record No. 1');">1');">1');">1-1');">1');">1');">1] Hampton filed his Complaint in Laurel Circuit Court and the defendants removed it to this Court on May 8, 201');">1');">1');">18. [Record No. 1');">1');">1');">1] Hampton asserts a claim of negligence against Morrison and claims of vicarious liability, negligent training, negligent hiring, and negligent supervision against Bob Evans. [Record No. 1');">1');">1');">1-1');">1');">1');">1] The Scheduling Order entered August 22, 201');">1');">1');">18, required Hampton to disclose the identity of his expert witnesses no later than December 4, 201');">1');">1');">18. [Record No. 20] He listed six witnesses in his “CR 26 Disclosures” on December 4, 201');">1');">1');">18, and moved for an extension of time to disclose the identity and written reports of expert witnesses. [Record Nos. 25, 26]

         The Court granted the requested extension. Hampton timely filed supplemental disclosures on January 4, 201');">1');">1');">19. [Record Nos. 27, 28] The Court also extended the defendants' deadline and they filed a disclosure of experts one month later. [Record Nos. 27, 34] The defendants filed a motion to strike Hampton's supplemental disclosures of two experts (Dr. Aneja Arun and Dereni Black Brock, PT) on January 7, 201');">1');">1');">19, and the Court granted the motion on February 1');">1');">1');">13, 201');">1');">1');">19. [Record Nos. 30, 36]

         The defendants' disclosure of experts properly disclosed Scott Noll, Ph.D., and William T. Baldwin, Jr., Ph.D., and provided their respective reports. [Record No. 34] Noll's report involved an analysis and opinion regarding the cause of the accident. [Id.] Hampton subsequently filed his “second supplemental CR 26 disclosures” on March 1');">1');">1');">1, 201');">1');">1');">19, and identified Edward R. Crum as a proposed rebuttal expert. [Record No. 37] He asserts that:

Mr. Crum will provide testimony that lack of physical evidence would preclude speed and braking estimates. Mr. Crum will also testify that there is no evidence that Mr. Hampton was inattentive. Mr. Crum provided context in his report, but his function is to rebut the testimony regarding speed, distance, inattention of Mr. Hampton, and the testimony that Mr. Morrison acted appropriately in recognizing no threat coming towards him.

[Record No. 40] However, Crum's report indicates “without some other type of physical evidence, any type of pre-collision speed estimate would be considered a guess, ” but Crum does not provide a guess regarding the pre-collision speed and does not indicate that a lack of physical evidence would generally preclude speed and braking estimates. [Record No. 37-1');">1');">1');">1] Additionally, Crum indicates that he “would agree with Mr. Noll that the minimum impact speed of the Hampton Vehicle would be a minimum of 35 to 40 miles per hour.” [Id.] Further, three of Crum's conclusions involve reiteration of statements by witnesses to the accident and do not provide an opinion. [Id.]


         The defendants state that Hamptons' disclosure of Crum should be stricken because it is “germane to Plaintiff's case-in-chief” and is not “real” rebuttal evidence. [Record No. 39-1');">1');">1');">1, p. 6] Alternatively, they contend that if Crum's opinions are not essential to the plaintiff's case-in-chief, the report simply addresses the same subject matter as Noll, but does not contradict or rebut Noll's report, so it is not real rebuttal evidence. [Record No. 39-1');">1');">1');">1, p. 7] Finally, the defendants contend that Hampton has failed to comply with Rule 26 of the Federal Rules of Civil Procedure and the sanction of striking the expert disclosure is appropriate because he has not shown that the failure to properly disclose Crum was harmless or substantially justified. [Record No. 39-1');">1');">1');">1, pp. 7-8]

         A. Real Rebuttal Evidence

         Expert disclosures must comply with Rule 26 of the Federal Rules of Civil Procedure and any deadlines set by the Court. Fed.R.Civ.P. 26(a)(2). Parties may disclose rebuttal testimony after the deadline for initial disclosure has passed, but such disclosures are limited in scope. Fed.R.Civ.P. 26(a)(2)(D)(ii). Rebuttal opinions must be “intended solely to contradict or rebut evidence on the same subject matter identified by another party['s]” expert disclosure. Id.; see also Bentley v. Highlands Hosp. Corp., No. 1');">1');">1');">15-97-ART-EBA, 201');">1');">1');">16 WL 5867496, at *5 (E.D. Ky. Oct. 6, 201');">1');">1');">16). “The rebuttal expert may cite new evidence and data so long as the new evidence and data is offered to directly contradict or rebut the opposing party's expert.” Bentley, 201');">1');">1');">16 WL 5867496 at *5. (internal quotations and citations omitted).

         The Sixth Circuit uses the term “real rebuttal evidence” which has been defined as:

evidence or expert opinion offered by a Plaintiff in response to a defense theory or proof that ordinarily would not be offered by the Plaintiff in its case-in-chief to establish an element of one or more of its causes of action. Put differently, if the evidence or opinion offered in rebuttal is evidence or an opinion that the Plaintiff ordinarily would be expected to offer in support of one or more of the elements of its cause of action, then such evidence or opinion is not ‘real' rebuttal evidence and may be properly excluded on such ground by the district court.

Taylor v. Brandon, No. 3:1');">1');">1');">14-CV-0588-DJH, 201');">1');">1');">18 WL 3581');">1');">1');">11');">1');">1');">142, at * 2 (W.D. Ky. Jan. ...

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