Opinion
Civil No. 03-2978 (JRT/FLN).
May 23, 2005
Richard J. Nygaard, RIDER BENNETT, Minneapolis, MN, for plaintiff.
David A. Schooler, LARSON KING, St. Paul, MN, for defendant.
ORDER AFFIRMING ORDER OF MAGISTRATE JUDGE DATED NOVEMBER 8, 2004
In September 2004, defendant Ghirardelli Chocolate Company ("GCC") filed a Motion to Strike Plaintiff's Experts and Expert Testimony. Specifically, GCC sought to strike all four of plaintiff C.H. Robinson Worldwide, Inc.'s ("CHRW") experts, their testimony, and their reports due to CHRW's alleged failure to comply with the disclosure requirements of Federal Rule of Civil Procedure 26. In a hearing on the motion held before United States Magistrate Judge Franklin L. Noel on October 12, 2004, counsel for CHRW stated that he would not be calling any outside experts in his case in chief, but that he would call two employees of CHRW, Mark Bowers and Steve Pfarr, as rebuttal witnesses to GCC's experts. CHRW's counsel also stated several times during the hearing that Bowers's and Pfarr's testimony would be factual, (Tr., Ex. B. at p. 56-59), and offered Duluth Lighthouse for the Blind v. C.G. Bretting Mfg. Co., 199 F.R.D. 320 (D. Minn. 2000), which held that an employee could provide employee-expert testimony under Rule 701, for support. During the hearing, Magistrate Judge Noel asked, "So you really will not be asking the Court to recognize them as having an expertise in some field?" ( Id. at 59.) CHRW's counsel replied, "By their training, education and experience, of course. They are experts in the field of transportation, but they are not outside independent experts retained for the purposes of giving an opinion." ( Id.) In an order dated November 8, 2004, Magistrate Judge Noel summarily denied GCC's motion without further comment.
This case is now before the Court on GCC's appeal of the Magistrate Judge's decision. GCC asserts that the statement by CHRW's counsel that Bowers and Pfarr, as Rule 701 fact witnesses, can be recognized as to "their training, education and expertise" is incorrect. In its memorandum in support of its appeal, GCC states that:
Assuming Magistrate Noel accepted CHRW's concession to limit Pfarr and Bowers to Rule 701 fact witnesses, . . . then Magistrate Noel properly denied GCC's Motion to Strike Plaintiff's Experts. However, it is clearly erroneous and contrary to Rule 26 and Rules of Evidence 702, 703, and 705 to suggest that Pfarr and Bowers can now also testify to the opinions set forth in [their] rebuttal reports, an outcome inconsistent with Fed.R.Evid. 701 and with the spirit and intent of Magistrate Noel's ruling.
(Def.'s Mem. at 8.) In its appeal, GCC asks that "CHRW be prevented from later arguing that Bowers and/or Pfarr are expert witnesses and will be testifying to expert opinions pursuant to Rules 702, 703 and 704." ( Id. at 9.)
In its responsive memorandum, CHRW plainly states that Bowers and Pfarr are employee-experts under Rule 701 who will also offer testimony to rebut "GCC's experts based on [their] first hand personal knowledge of the facts of the case and their experience in the logistics and transportations industry as set forth in their extremely detailed, thorough rebuttal reports." (Pl.'s Mem. at 2.)
The standard of review applicable to an appeal of a magistrate judge's order on nondispositive pretrial matters is extremely deferential. Reko v. Creative Promotions, Inc., 70 F. Supp. 2d 1005, 1007 (D. Minn. 1999). This Court will reverse such an order only if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). For the reasons stated below, the Court denies GCC's appeal and affirms the Magistrate Judge's Order.
The Court finds that Magistrate Judge Noel correctly denied GCC's motion to strike CHRW's experts. Bowers and Pfarr are Rule 701 fact witnesses and, therefore, are not subject to the disclosure requirements of Federal Rule of Civil Procedure 26. The Court also finds that Bowers and Pfarr can testify in rebuttal to GCC's experts also under Rule 701. Of course, as fact witnesses, Bowers and Pfarr cannot offer their opinion to rebut GCC's experts' opinions, but each may "testify to the knowledge that he has gained from his industry experience, and from his review of the records that have been prepared . . . in the ordinary course of . . . business pursuits." Duluth Lighthouse, 199 F.R.D. at 324 ( citing Burlington N.R.R. Co. v. State of Neb., 802 F.2d 994, 1004-05 (8th Cir. 1986).