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August 13, 2004.

ANGIE CHEN, Plaintiff,

The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge


Before the court is Plaintiff's Motion to Strike Rule 26(a)(1) Witness Disclosure and to Exclude Testimony. [Dkt 126.] That motion was previously granted regarding the disclosure by defendant Mayflower Transit, Inc. ("Mayflower) of Steven Dawkins and denied (with certain conditions) as to the disclosure of Terry Webb, with ruling reserved as to the disclosure of Joseph Harrison. [Dkt 127, 130.] Mayflower was permitted to submit Defendant's Suggestions in Support of Proffer of Testimony of Joseph M. Harrison. [Dkt 130, 131.] After reviewing all of the submissions, including Defendant's Suggestions, and hearing the arguments of counsel, Plaintiff's Motion to Strike is GRANTED as to Joseph M. Harrison.


  The present motion has a lengthy background. After plaintiff Angie Chen ("Chen") was given leave to file an amended complaint including a claim under the Racketeer Influenced Corrupt Organizations ("RICO") Act, a discovery schedule was established which required disclosures by Mayflower under Federal Rule of Civil Procedure 26(a)(2) to be made by April 30, 2002. (Order, July 18, 2001.) [Dkt 57.] Subsequently, fact discovery was extended a number of times, ultimately until September 30, 2002. (Order, March 13, 2002.) [Dkt 83.]*fn1 At a status hearing on June 12, 2002, Mayflower's counsel advised the court that it did not expect any further expert disclosures. At a status hearing in January 10, 2003, the parties agreed that discovery was closed, and a dispositive motion schedule was set. (Order, Jan. 10, 2003.) [Dkt 92.] It is undisputed that Mr. Harrison had not been disclosed as a witness, either as a fact witness or pursuant to Rule 26(a)(2).

  Mayflower attached an affidavit from Mr. Harrison as part of its materials in support of its motion for summary judgment. [Dkt 97.] Chen moved to strike that affidavit and other parts of Mayflower's summary judgment materials. [Dkt 98.] That motion was granted, and Mayflower was given leave to file a revised motion for summary judgment. (Order, April 14, 2003.) [Dkt 101.] Mayflower subsequently filed a revised motion for summary judgment, again submitting an affidavit from Mr. Harrison. [Dkt 102, 103.] Chen again moved to strike that affidavit, arguing, inter alia, that Mr. Harrison had not been properly disclosed as a witness, and that his affidavit contained proposed expert testimony, although Mr. Harrison had not been disclosed as an expert. (Pl.'s Second Mot. Strike at 2-4.) [Dkt 108.] That motion was taken with the motion for summary judgment and denied as moot because, although Chen's arguments had force, the inadmissible testimony was disregarded by the court. (Mem. Opinion and Order, Mar. 11, 2004 at 59.) [Dkt 119.]

  Trial is set to begin on October 4, 2004. On May 21, 2004, Mayflower served Defendant's Supplemental Rule 26(a)(1) Witness Disclosure, listing Joseph Harrison, Steven Dawkins, and Terry Webb. (Pl.'s Mot. Strike Rule 26(a)(1) Witness Disclosure, Ex. A, Def's Supplemental Rule 26(a)(1) Witness Disclosure.) [Dkt 126.] Chen moved to strike that supplemental disclosure, and as noted above, following argument, that motion was granted as to Mr. Dawkins, denied with conditions as to Mr. Webb, and ruling was reserved as to Mr. Harrison. (Order, June 30, 2004; Order, July 28, 2004.)

  Mayflower originally argued that the disclosure of Mr. Harrison was not untimely because he had been disclosed during discovery, by way of the affidavit submitted in support of Mayflower's motion for summary judgment. (Def.'s Opp'n Pl.'s Mot. at 8.) [Dkt 128.] However, that argument was premised on Mayflower's mistaken belief that Mr. Harrison's affidavit had been signed in December 2001. (Id.) In fact, Mr. Harrison's first affidavit was signed in December 2002, and was served with Mayflower's materials in support of its first motion for summary judgment in March 2003. (Mayflower's Stmt. Material Facts, Ex. D.) [Dkt 97.] All of those dates were after the close of discovery. Chen argues that any testimony by Mr. Harrison is precluded by Fed.R.Civ. P. 37(c). Mayflower asserts that any late disclosure is harmless.

  It is undisputed that Mayflower has never made (or sought to make) a Rule 26(a)(2) disclosure regarding Mr. Harrison, and it is clearly too late to do so. See, e.g., Musser v. Gentiva Health Servs., 356 F.3d 751, 757-58 (7th Cir. 2004) (stating that "[f]ormal disclosure of experts is not pointless. . . . [T]here are countermeasures that could have been taken that are not applicable to fact witnesses. . . ."). Thus, Mr. Harrison will not be permitted to offer testimony pursuant to Rules 702, 703 or 705 of the Federal Rules of Evidence. At the oral argument on Chen's motion to strike, the court questioned whether it is necessary to decide if a late disclosure of Mr. Harrison under Rule 26(a)(1) could be permitted if the testimony Mayflower expects him to present would be Rule 702 testimony. Mayflower was given leave to submit its Suggestions as an offer of proof in support of its argument that Mr. Harrison's testimony would not be Rule 702 testimony.


  Rule 701 and Rule 702 Testimony

  Mayflower argues that Mr. Harrison's testimony is admissible pursuant to Federal Rule of Evidence 701. (Def.'s Suggestions at 1.) Federal Rule of Evidence 701 provides that a witness who is not testifying as an expert may offer opinions or inferences that are:
(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Fed.R. Evid. 701 (emphasis added). Lay opinion testimony "most often takes the form of a summary of first-hand sensory observations." United States v. Conn, 297 F.3d 548, 554 (7th Cir. 2002) (citing Asplundh Mfg. Div. v. Benton Harbor Engr., 57 F.3d 1190, 1196-1202(3d Cir. 1995)). In the Conn case, the Seventh Circuit quoted the "helpful summary of lay opinion testimony" expressed by the Third Circuit in the Asplundh case:
The prototypical example of the type of evidence contemplated by the adoption of Rule 701 relates to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences. . . . Other examples of this type of quintessential Rule 701 testimony include identification of an individual, the speed of a vehicle, the mental state or responsibility of another, whether another was healthy, the value of one's property.
Id. at 554 n. 2 (quoting Asplundh, 57 F.3d at 1196-98). "Lay opinion testimony is admissible only to help the jury or the court to understand the facts about which the witness is testifying and not to provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events." Id. at 554 (quoting United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001)).

  Expert opinion testimony, on the other hand, need not be based on first hand knowledge of the facts of the case. Expert opinion "brings to an appraisal of those facts a scientific, technological or other specialized knowledge that the lay person cannot be expected to possess." Id. Rule 701 was amended in 2000 "to ensure[] that a party will not evade the expert witness disclosure requirements set forth in Fed.R. Civ. P. 26 and Fed.R. Crim. P. 16 by simply calling an expert witness in the guise of a layperson." Advisory Committee Notes, 2000 Amendments to Rule 701.

  Mr. Harrison's Proposed Testimony

  According to Mayflower, Mr. Harrison has been the President of the American Moving and Storage Association ("AMSA") for 23 years. (Suggestions at 1.) Mayflower does not claim that Mr. Harrison is now or ever has been employed by Mayflower, or by any of the affiliated local companies involved in Chen's move, or that he has any personal knowledge of the events surrounding Chen's move or her transaction with Mayflower. Mayflower states that Mr. Harrison will testify regarding "the pricing practices of those moving companies which are AMSA members and the role of tariffs in the household goods moving industry." (Id.) ...

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