United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For CAROLINE ROBINSON, Individually, and as Personal Representative and Administrator of THE ESTATE OF ARNELL ROBINSON, Estate No. 2009ADM305, Plaintiff: David L. Shurtz, DAVID L. SHURTZ, ESQ., Washington, DC.
For DISTRICT OF COLUMBIA, a municipal corporation, MICHAEL PEPPERMAN, individually in his personal capacity, Defendants: Caliandra Burstein, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC; David A. Jackson, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC; Erica Taylor McKinley, LEAD ATTORNEY, ATTORNEY GENERAL'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC; James Anthony Towns, Sr., OFFICE OF THE ATTORNEY GENERAL for DC, Washington, DC.
JAMES E. BOASBERG, United States District Judge.
On March 6, 2009, Arnell Robinson was riding his motorcycle down O Street in Northwest Washington, when he was involved in a fatal collision with an unmarked police car. Later that year, his mother, Plaintiff Caroline Robinson, brought this suit against the Metropolitan Police Department officer who was driving the car and the District of Columbia. A pivotal question in the case is how the accident transpired. Now that the parties have completed extensive discovery, Robinson moves to strike Defendants' accident-reconstruction expert, Wendell Cover. She argues that Defendants and Cover failed to comply with certain disclosure requirements for expert witnesses, that Cover is not qualified to serve as an expert, and that his opinions are unreliable.
While the Court agrees that Defendants should have exercised more care in complying with the rules of expert discovery, it believes that striking Cover's participation is unnecessarily draconian. The Court will thus deny Plaintiff's Motion, although it will permit her to re-open Cover's deposition to inquire further about certain limited topics.
I. Procedural Background
While some cases may proceed on an express route, this one has not. Like the slowest local, this train has stopped at every possible station along the way. Expert discovery was initially scheduled to close on August 30, 2011, over three years ago. See Scheduling Order, Dec. 14, 2010, at 2. Upon requests from both parties, however, the Court has extended the deadlines for expert reports and expert discovery on more than fifteen occasions. See Minute Orders of May 5, 2011; July 29, 2011; Oct. 17, 2011; Jan. 23, 2012; June 19, 2012; Oct. 1, 2012; Nov. 19, 2012; Jan. 23, 2013; Feb. 22, 2013; Mar. 21, 2013; Apr. 22, 2013; July 25, 2013; Sept. 12, 2013; Dec. 6, 2013; Feb. 6, 2014; Mar. 31, 2014. In the end, designations for Defendants' experts were due June 28, 2013, and the depositions of their experts were to take place on or before May 1, 2014. See Minute Orders of Apr. 22, 2013; Mar. 31, 2014.
One of the experts whom Defendants identified is Wendell Cover. He was retained " to evaluate and reconstruct, to the degree possible, [the] motor vehicle collision that occurred on Friday, March 06, 2009." See Cover Report (ECF No. 68-3) at 1. Defendants provided a copy of his report to Robinson on February 21, 2013. See Letter from David Shurtz, Plaintiff's Counsel, to David Jackson, et al., Defense Counsel, Apr. 18, 2014 (ECF No. 68-12) at 1. But by May 1, 2014 -- the final deadline for expert discovery -- Defendants had yet to make him available for a deposition.
As a result, on May 6, 2014, Plaintiff filed a motion to strike Cover's report and testimony. The motion sought to exclude him on several grounds, including that Defendants had failed to produce him for a deposition before the relevant cutoff date; he had not provided certain materials before the expert-report deadline; his analysis was deficient in certain respects; and he lacked the necessary qualifications to serve as an expert. See Pl. Mem. to Preclude Wendall [sic] Cover (ECF No. 62-1). The Court dismissed that motion without prejudice and ordered that Cover's deposition take place in early June 2014. See Minute Order of May 7, 2014. Shortly after the deposition was completed, Plaintiff filed the present Motion, again seeking to bar Cover's report and testimony.
While this Court has previously cautioned Plaintiff about submitting digressive and prolix filings, that admonition appears to have struck stony ground. Instead, Robinson has submitted a lengthy Motion to Strike, which frequently veers off into discussions of the merits of the case and often skips back and forth among various arguments. The filing, as a result, is difficult to decipher. The Court was, nevertheless, able to discern three principal grounds on which Robinson challenges Cover's report and proposed testimony. First, she asserts that Defendants and Cover failed to comply with Rule 26(a) of the Federal Rules of Civil Procedure. Second, she contends that Cover is not qualified to serve as an expert on the issues for which he is proffered. Finally, she argues that his opinions are not reliable. The Court will analyze each of these arguments in turn.
A. Compliance with Rule 26(a)
Rule 26(a)(2) provides that " a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705," which are the rules that govern expert testimony. For proposed experts who regularly provide expert testimony or who have been specifically retained to do so, this disclosure must ordinarily be supplemented by a written report, prepared and signed by the witness, which includes the substance of the expert's opinions and the " basis and reasons for them." Id. The report must additionally contain " the facts or data considered by the witness," " any exhibits that will be used to summarize or support" his opinions, and certain information about the witness's qualifications, his past history as an expert, and his compensation. Id. " The purpose of Rule 26(a)(2) is to prevent unfair surprise at trial and to permit the opposing party to prepare rebuttal reports, to depose the expert in advance of trial, and to prepare for depositions and cross-examination at trial." Minebea Co., Ltd. v. Papst, 231 F.R.D. 3, 5-6 (D.D.C. 2005); see also Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 167, 377 U.S.App.D.C. 187 (D.C. Cir. 2007).
Under Rule 37(c)(1), if a party fails to comply with these disclosure requirements, " the party ...