United States District Court, W.D. North Carolina, Asheville Division
RACHEL CARPENTER, as Administratrix of the Estate of PEDRO CRUZ-AMADO, Plaintiff,
WILSON SCOTT TRAMMEL, et al., Defendants.
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Defendants' Motion to
Exclude Peter Breggin, M.D., from Testifying as
Plaintiff's Expert [Doc. 30] and the Plaintiff's
Motion to Supplement Expert Report [Doc. 42].
an excessive force case arising from a Cleveland County
Sheriff's Deputy, Defendant W. Scott Trammel
(“Defendant Trammel”), shooting and killing Pedro
Cruz-Amado (“Amado”) in his front yard on June
21, 2016. The Plaintiff, Rachel Carpenter, as the
Administratrix of the Estate of Pedro Cruz-Amado
(“Plaintiff”), brought this action on January 25,
2018. [Doc. 1].
February 16, 2018, the Defendants filed their Answer. [Doc.
4]. On March 12, 2018, the Pretrial Order and Case Management
Plan (“Pretrial Order”) was entered in this case,
which among other things set the deadlines for the service of
the parties' expert reports. [Doc. 9]. The original
deadlines for the Plaintiff's and Defendant's expert
reports were July 1, 2018, and August 1, 2018, respectively.
[Id.]. The Pretrial Order set the motions deadline
in this case as December 1, 2018. [Id.]. On March
15, 2018, Plaintiff served on the Defendants Trammel and
Cleveland County her First Requests for Production of
Documents. [Docs. 21-1 and 21-3]. Outside of requests for
records related to any “psychological
evaluations” that were a part of Defendant
Trammel's personnel records, the Plaintiff made no
request for any medical or pharmacy records of Defendant
Trammel in this request. [See id.].
22, 2018, the Court granted the Plaintiff's motion to
extend the deadline to file her expert reports, thereby
extending the Plaintiff's deadline to August 1, 2018 and
the Defendant's deadline to September 1, 2018. [Doc. 14].
On July 31, 2018, the Court granted another motion by the
Plaintiff to extend the deadline to file her expert reports
to September 1, 2018 and October 1, 2018. [Doc. 20]. On
August 20, 2018, after learning through other discovery of
possible prescription medication use by Defendant Trammel at
the time of the shooting, the Plaintiff served a Second
Request for Production on Defendant Trammel, requesting his
medical records from the ten years prior to the shooting to
the date of the request. [Doc. 21-5 at 7]. Defendant Trammel
objected to this request. [Doc. 21-6].
August 31, 2018, the Plaintiff served her expert witness
disclosures on Defendant, which included an expert report by
Peter Breggin, M.D. (the “Report”), a
psychiatrist from Ithaca, New York, dated August 24, 2018.
[Doc. 31 at 1]. On September 28, 2018, the Plaintiff moved
the Court to compel production of Trammel's medical and
pharmacy records that had been previously requested. [Doc.
21]. The Magistrate Judge granted the Plaintiff's motion
to compel but limited the production to the period from
January 1, 2013 “through the present.” [Doc. 41].
November 30, 2018, the Defendants filed a motion for partial
judgment [Doc. 28] and a motion to exclude Dr. Breggin from
testifying at trial [Doc. 30]. On March 18, 2019, the day
before the hearing on the Defendants' motions, the
Plaintiff filed a motion to file a supplemental expert report
by Dr. Breggin. [Doc. 42]. These motions were heard by the
Court on March 19, 2019.
hearing, the Court advised the parties that it would reserve
its ruling on the Defendants' motion to exclude Dr.
Breggin and allow the parties to re-brief the issue, either
as a motion in limine or a Daubert motion. Accordingly, the
Defendants' Motion to Exclude Peter Breggin, M.D., from
Testifying as Plaintiff's Expert [Doc. 30] is hereby
denied without prejudice. Thus, the only motion that remains
for disposition in the Plaintiff's motion to supplement
Dr. Breggin's expert report.
Pretrial Order in this case, as modified by Court order,
provided that reports for Plaintiff's retained experts
under Rule 26(a)(2) of the Federal Rules of Civil Procedure
were due by September 1, 2018. [Docs. 9, 20]. The Pretrial
Order further provided that “[s]upplementations under
Rule 26(e) shall be ongoing throughout these
proceedings.” [Doc. 9 at 4].
26(a)(2) requires the parties to disclose any experts
witnesses it intends to use at trial to the other parties.
Fed.R.Civ.P. 26(a)(2)(A). Rule 26(a)(2)(B) requires as
Unless otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report-prepared
and signed by the witness-if the witness is one retained or
specially employed to provide expert ...