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Bell v. Illinois Central Railroad Co.

December 14, 2006

SHANNON M. BELL, PLAINTIFF,
v.
ILLINOIS CENTRAL RAILROAD COMPANY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge

ORDER

This matter is before the Court on the Motion to Strike Plaintiff's Expert Witness, filed by defendant M & C Transportation, Inc. (hereinafter "M & C Transport"), on September 27, 2006 (Doc. 67); the Motion to Strike Defendant's Motion to Strike Plaintiff's Expert Witness June Blaine, filed by Shannon Bell, filed on October 4, 2006 (Doc. 70); the Motion to Amend/Correct Plaintiff's Motion to Strike Defendant's Motion to Strike Plaintiff's Expert Witness June Blaine, filed by Shannon Bell on October 12, 2006 (Doc. 82); the Motion to Strike Defendants' Retained Experts, filed by Shannon Bell on November 28, 2006 (Doc. 111); the Motion to Strike Dr. Bernard Randolph, filed by Shannon Bell on November 28, 2006 (Doc. 112); the Motion to Supplement Plaintiff's Motion to Strike Dr. Bernard Randolph, filed by Shannon Bell on November 29, 2006 (Doc. 115); the Motion to Strike Plaintiff's Motion to Strike Defendants' Retained Experts, filed by M & C Transport on December 13, 2006 (Doc. 138); the Motion to Strike Plaintiff's Motion to Strike Dr. Randolph, filed by M & C Transport on December 13, 2006 (Doc. 139); and the Motion for Leave to Respond to Plaintiff's Reply to the Motion to Strike Defendants' Retained Experts, filed by M & C. Transport on December 14, 2006 (Doc. 140).

For the reasons set forth below, Defendant M & C Transport's Motion to Strike Plaintiff's Expert Witness (Doc. 67) is GRANTED IN PART and DENIED IN PART; Plaintiff's Motion to Amend/Correct Plaintiff's Motion to Strike Defendant's Motion to Strike Plaintiff's Expert Witness June Blaine (Doc. 82) is GRANTED; Plaintiff's Motion to Strike Defendant's Motion to Strike Plaintiff's Expert Witness June Blaine (Doc. 70) is GRANTED IN PART AND DENIED IN PART; Plaintiff's Motion to Strike Defendants' Retained Experts (Doc. 111) is STRICKEN; Plaintiff's Motion to Strike Dr. Bernard Randolph (Doc. 112) is STRICKEN; Plaintiff's Motion to Supplement Plaintiff's Motion to Strike Dr. Bernard Randolph (Doc. 115) is DENIED; Defendant M & C Transport's Motion to Strike Plaintiff's Motion to Strike Defendants' Retained Experts (Doc. 138) is DENIED AS MOOT; Defendant M & C Transport's Motion to Strike Plaintiff's Motion to Strike Dr. Randolph (Doc. 139) is DENIED AS MOOT; Defendant M & C Transport's Motion for Leave to Respond to Plaintiff's Reply to the Motion to Strike Defendants' Retained Experts (Doc. 140) is DENIED AS MOOT.

BACKGROUND

The plaintiff, Shannon Bell, is alleging that the defendants, through their negligence, proximately caused his injuries arising from an automobile accident that occurred on June 5, 2005. The parties are in the process of conducting discovery, and this case has a presumptive trial month of May 2007 before Judge David R Herndon. On October 5, 2006, the Court conducted a hearing to addressissues related to the first three of the above motions. John P. Kujawski, attorney for Plaintiff Shannon Bell, was present. Defendant M & C Transport was represented by Priscilla F. Gunn. Personal Counsel for M & C Transport, Ron Roth, was also present. Kurt E. Reitz and Crystal M. Campbell were also present and represented Defendant Illinois Central Railroad Company (hereinafter "Illinois Central"). The Court advised the parties that this written order would thereafter issue.

DISCUSSION

Motion to Strike Plaintiff's Expert Witness (Doc. 67)

In this motion Defendant M & C Transportation requests this Court to strike June Blain as an expert witness by alleging that: (1) Plaintiff failed to comply with this Court's Scheduling Order (Doc. 31) by disclosing expert witness June Blaine 6 days late, and (2) that such disclosure was deficient, in that a written report pursuant to FRCP 26(a)(2)(B) was not received. Plaintiff responds that (1) June Blaine does not fall under FRCP 26(a)(2)(B) because she is not a "retained" expert, thus not requiring a report to be filed, and (2) that the Court's Scheduling Order does not address non-retained experts, but only retained experts, in its August 31, 2006, deadline.

The Court's Scheduling Order (Doc. 31) requires that all expert witnesses be disclosed, including retained and non-retained experts: "Expert witnesses shall be disclosed, along with a written report prepared and signed by the witness pursuant to Federal Rule of Civil Procedure 26(a)(2), as follows: Plaintiff's expert(s): August 31, 2006" (Doc. 31, ¶ 5). It is common knowledge that a pair of commas is used in the middle of a sentence to set off clauses, phrases, and words that are not essential to the meaning of the sentence. This is the present case. Therefore, the clause could be read "Expert witnesses shall be disclosed as follows: Plaintiff's expert(s): August 31, 2006." The reminder by the Court that Rule 26 requires retained experts to also disclose written reports at that time is nonessential. Plaintiff's argument might have merit if the sentence was without these two commas. Therefore, Plaintiff was required to disclose his experts, regardless of whether they fall under FRCP 26(a)(2)(A) or (B), by August 31, 2006. This conclusion is strengthened by the fact that the sentence makes no distinction between 26(a)(2)(A) or (B), it merely states 26(a)(2). However, Defendant has not shown that this designation, by the mere fact it was made six days late, was so prejudicial as to warrant striking the expert witness's testimony.

The parties disagree over whether June Blaine falls under 26(a)(2)(A) or (B); that is, whether she is a retained or non-retained expert. FRCP 26(a)(2)(B) requires:

[T]his disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. (emphasis added). Plaintiff contends that Plaintiff merely sought the assistance of June Blaine to "explore employment opportunities" (Doc. 70), meaning to "find him a job" (Doc. 82). However, Plaintiff disclosed June Blaine as a potential expert witness on September 6, 2006, by sending opposing counsel a disclosure statement (Doc. 67-2). In that disclosure, Plaintiff stated:

June Blaine may offer opinions and testimony concerning the Plaintiff's history, complaints, medical history current symptomology, his aptitude, marketability, job skills, employability, ability to secure future income and fringe benefits, the amount of fringe benefits, and future income the Plaintiff may be able to earn, Plaintiff's potential for retraining, the job market, job availability in the area of Plaintiff's residence, the cost of rehabilitation services now and in the future.

In addition, June Blaine may provide her opinions as to job trends, market trends, job availability, forecast of job availability, and the future employability of the Plaintiff.

Lastly, June Blaine will base her opinions upon her review of medical records; her interview, and testing of the Plaintiff; her reference to texts, documents, and reference books within her profession; market surveys, job market analyses, government publications; her background, and experience as a rehabilitation counselor, and ...


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