Opinion
Civil Action No. 03-2002, Section "K" (5).
August 10, 2004
Before the Court is a Motion to Strike Expert Report and Exclude Expert's Testimony (Rec. Doc. 14) filed by defendant Stewart Stevenson Services ("SS"). Having reviewed the pleadings, memoranda, correspondence and relevant law, the Court DENIES defendant's motion as moot.
I. BACKGROUND
This matter arises out of a dispute regarding repair work done to a freight liner vehicle. On July 11, 2003, plaintiff Steven E. Rowe filed the instant lawsuit against defendant SS alleging negligence relating to repairs performed on plaintiff's vehicle at defendant's locations in Hammond, Louisiana, and Commerce City, Colorado. In sum, plaintiff claims that defendant's faulty workmanship caused a loss in horsepower that can only be corrected by rebuilding or replacing the freight liner's engine.
On June 18, 2004, plaintiff furnished the expert report of Chas Voyles, a mechanic in Troy, Illinois, who worked on the vehicle after defendant. Voyles' report appears to be a work order receipt for repairs he conducted on the vehicle in April of 2004. The report does not mention defendant's previous repairs and does not give an opinion as to causation or liability regarding the alleged damage.
On July 12, 2004, Defendant SS filed the instant motion on the grounds that Voyles' report is deficient under Federal Rule of Civil Procedure 26(a)(2)(B). Accordingly, SS seeks to strike plaintiff's expert report and exclude Voyles' expert testimony under Rule 37(c)(1).
On July 23, 2004, counsel for plaintiff apprised the Court by letter of plaintiff's intention to withdraw the classification of Chaz Voyles as an expert. Rather than call Voyles as an expert, plaintiff submits that Voyles will be offered as a lay witness under the provisions of Federal Rule of Evidence 701. According to plaintiff, defendant's motion to strike Voyles' expert report and expert testimony are therefore moot.
Defendant responded by letter dated July 26, 2004 stating that its motion was not mooted by plaintiff's withdrawal of Voyles' expert classification. SS opined that plaintiff still intended to solicit opinion testimony from Voyles and was simply attempting to circumvent the expert disclosure requirements of Rule 26.
Subsequent to the issuance of said correspondence, counsel for plaintiff withdrew from representing plaintiff Rowe. Accordingly, the Court ordered plaintiff Rowe to appear personally before the Court on September 1, 2004 to discuss the matter of his future representation.
On July 28, 2004, SS filed a Supplemental Memorandum in Support of Motion to Strike. Therein, defendant alleged that plaintiff still intends to solicit opinion testimony from Voyles and urged the Court to consider its motion despite the withdrawal of Voyles as an expert. On August 4, the Court took the matter under submission.
II. LAW ANALYSIS
As this Court recently stated in Hebbler v. Turner, 2004 WL 414821 (E.D. La. 2004), "[t]rial courts have `wide discretion' in deciding whether or not a particular witness qualifies as an expert under the Federal Rules of Evidence." (citing Hidden Oaks Limited v. City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998)). Federal Rule of Evidence 702, which governs the admissibility of expert testimony, states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. The testimony of lay witnesses, on the other hand, falls under the purview of Federal Rule of Evidence 701:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which 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.
In the instant matter, plaintiff formerly classified Chaz Voyles as an expert witness. However, upon SS filing the instant motion, plaintiff has withdrawn Voyles' expert classification. Nevertheless, defendant objects to plaintiff's witness on the grounds that plaintiff failed to meet the requirements of Federal Rule of Civil Procedure 26. Rule 26 regulates the disclosure of expert witnesses:
(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.
(B) Except as otherwise stipulated or directed by the court, this 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. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1). Fed.R.Civ.Pro. 26(a)(2).
The Court finds that defendant's Motion to Strike Expert Report and Exclude Expert's Testimony is clearly moot. Plaintiff no longer intends to offer Voyles as an expert under Fed.R.Evid. 702. Thus, the expert disclosure requirements of Rule 26 are inapplicable. Voyles may testify as a lay witness at trial pursuant to the Federal Rules of Evidence. If he renders opinion testimony, it will be subject to the limitations of Fed.R.Evid. 701. Accordingly, Voyles shall not be permitted to offer opinion "based on scientific, technical, or other specialized knowledge within the scope of Rule 702."
Likewise, this Court is not persuaded by defendant's claims that plaintiff intends to circumvent Rule 26 and solicit inappropriate opinion testimony from the witness. Indeed, defendant has failed to submit any evidence supporting this accusation. Voyles has not yet been deposed; therefore, it remains unclear what type of testimony plaintiff intends to solicit from him at trial. Thus, to strike his testimony at this time would be inappropriate. After the witness has been deposed, defendant may reurge its concerns about his testimony, more particularly, in a motion in limine. Accordingly,
IT IS ORDERED that the Motion to Strike Expert Report and Exclude Expert's Testimony (Rec. Doc. 14) filed by defendant Stewart Stevenson Services is hereby DENIED AS MOOT.