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Boles v. United States

United States District Court, M.D. North Carolina

April 1, 2015

BILLY LEE BOLES, JR., Plaintiff,


L. PATRICK AULD, Magistrate Judge.

This case comes before the Court on Defendant's Motion to Strike Expert Reports and Exclude Testimony. (Docket Entry 24.) For the reasons that follow, the Court will grant Plaintiff's instant Motion.


This case arises from the alleged negligent acts of employees of the United States Coast Guard in returning firearms to an individual who subsequently used them to injure Plaintiff. (See Docket Entry 19.)[1] Relevant to the instant Motion, on May 19, 2014, with minor modifications, the Court adopted the Parties' proposed scheduling order dictating the terms and time line for discovery in this case. (See Docket Entry 22; Text Order dated May 19, 2014.) That scheduling order required, inter alia, Plaintiff to submit his expert reports by September 1, 2014, Defendant to submit its expert reports by November 15, 2014, and Plaintiff to submit any rebuttal reports by December 30, 2014. (Docket Entry 22 at 2.) The Court also set this matter for a bench trial scheduled to begin on October 5, 2015. (Docket Entry 23.)

Plaintiff did not file any affirmative expert reports by the September 1, 2014 deadline. (Docket Entry 25 at 3; Docket Entry 27 at 6.) Despite Plaintiff's decision not to serve any expert reports, Defendant produced reports from its three expert witnesses: economist Dr. Judith Roberts (Docket Entry 25-3), vocationalist Julie Sawyer-Little (Docket Entry 25-4), and orthopaedic surgeon Dr. Vincent E. Paul (Docket Entry 25-5).[2] On December 30, 2014 (Docket Entry 25-6 at 9), Plaintiff produced four "rebuttal" expert reports from: psychiatrist Dr. Richard Weisler (Docket Entry 25-7), vocationalist Maria Vargas (Docket Entry 25-8), economist Dr. Gary Albrecht (Docket Entry 25-9), and orthopaedic surgeon Dr. Timothy Sloand (Docket Entry 25-10). Defendant contends that Plaintiff has mislabeled these reports as rebuttal, and the Court should therefore strike them as untimely affirmative expert reports. (Docket Entry 25 at 4.) Plaintiff disagrees and urges the Court to find them as timely filed rebuttal reports. (Docket Entry 27 at 5.)


The Court must first determine whether Plaintiff's experts' reports qualify as affirmative or rebuttal. If Plaintiff's experts' reports qualify as rebuttal, then the analysis ends because Plaintiff submitted the experts' reports timely. However, if the experts' reports qualify as affirmative, then the Court must determine whether good cause exists for Plaintiff's violation of the scheduling order, and, if not, then identify the appropriate sanction to impose for the untimely disclosure.

1. Affirmative vs. Rebuttal

Generally, testifying expert witnesses qualify as either initial/affirmative experts or rebuttal experts.[3] The Federal Rules of Civil Procedure define a rebuttal expert as one "intended solely to contradict or rebut evidence on the same subject matter identified by another party...." Fed.R.Civ.P. 26(a)(2)(C)(ii) (emphasis added). By contrast, an affirmative expert serves to establish a party's case-in-chief. See Lead GHR Enters., Inc. v. American States Ins. Co., No. CIV. 12-5056-JLV, 2014 WL 1246499, at *3 (D.S.D. Mar. 25, 2014) (unpublished) (quoting Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006)). The United States Court of Appeals for the Fourth Circuit has not addressed how a court should determine whether an expert witness qualifies as an affirmative or rebuttal witness. However, the Fourth Circuit has generally defined rebuttal evidence as "evidence given to explain, repel, counteract, or disprove facts given in evidence by the opposing party." United States v. Stitt, 250 F.3d 878, 897 (4th Cir. 2001) (internal quotation marks and alteration omitted).

The Fourth Circuit has also provided that, "[o]rdinarily, rebuttal evidence may be introduced only to counter new facts presented in the defendant's case in chief. Such new facts might include surprise' evidence presented by the defendants. Permissible rebuttal evidence also includes evidence unavailable earlier through no fault of the plaintiff." Allen v. Prince George's Cnty., Md., 737 F.2d 1299, 1305 (4th Cir. 1984) (internal citation omitted).

In addition, persuasive authority counsels that, "[i]f the purpose of expert testimony is to contradict an expected and anticipated portion of the other party's case-in-chief, then the witness is not a rebuttal witness or anything analogous to one.'" Amos v. Makita U.S.A., Inc., No. 2:09-cv-013040-GMN-RJJ, 2011 WL 43092, at *2 (D. Nev. Jan. 6, 2011) (unpublished) (quoting In re Apex Oil Co., 958 F.2d 243, 245 (8th Cir. 1992)). "[R]ebuttal experts cannot put forth their own theories; they must restrict their testimony to attacking the theories offered by the adversary's experts." International Bus. Machs. Corp. v. Fasco Indus., Inc., No. C-93-20326 RPA, 1995 WL 115421, at *3 (N.D. Cal. Mar. 15, 1995) (unpublished) (internal quotation marks omitted). "[E]xpert reports that simply address the same general subject matter as a previously-submitted report, but do not directly contradict or rebut the actual contents of that prior report, do not qualify as proper rebuttal or reply reports." Withrow v. Spears, 967 F.Supp.2d 982, 1002 (D. Del. 2013).

With these principles in mind, the Court will address each expert report, with consideration first given to the relationship between the reports of Ms. Vargas, Dr. Albrecht, and Dr. Sloand and the reports from Defendant to which they nominally respond and separate analysis of Dr. Weisler's report in light of the absence of any apparent counterpart report from Defendant.

a. Ms. Vargas, Dr. Albrecht, and Dr. Sloand

The Court will compare these three experts' reports with Defendant's reports to determine whether Plaintiff's experts' reports qualify as rebuttal.

i. The Vocational Experts

On behalf of Defendant, Ms. Sawyer-Little opined as to Plaintiff's "present functional status/abilities and vocational capacity." (Docket Entry 25-4 at 2.) In her analysis, Ms. Sawyer-Little noted Plaintiff's physical limitations, including problems with his right arm and his hip. (Id. at 5.) However, Ms. Sawyer-Little could not provide an opinion regarding his present vocational status without additional information. (Id. at 5-6.)

In contrast, Ms. Vargas performed a vocational analysis of Plaintiff and focused not only on his physical ailments but included Dr. Weisler's findings regarding Plaintiff's mental health issues as well. (Docket Entry 25-8 at 2-5.) Ms. Vargas concluded that: "Based on the Mental Capacity Assessment completed by Dr. Weisler, I would consider [Plaintiff] to be severely vocationally disabled." (Id. at 7.) Ms. Vargas also added that Plaintiff's injuries to his right hand would also preclude employment. (Id. at 8.) Ms. Vargas's ...

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