The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ANTAVIONE FERGUSON, )
)
Plaintiff, )
)
v. ) CIVIL CASE NO. 2:22-cv-607-ECM
) [WO]
CITY OF MONTGOMERY, )
)
Defendant. )
O R D E R
Now pending before the Court is the Defendant’s motion to exclude the Plaintiff’s
expert witness, Jon Newland, from testifying. (Doc. 29). The Plaintiff was given an
opportunity to show cause why the motion should not be granted. Based on the
Defendant’s motion and the Plaintiff’s response, the motion to exclude is due to be granted.
I. BACKGROUND
On July 6, 2023, the Court entered a Uniform Scheduling Order (“USO”) which
required the disclosure of the identity of any expert witnesses and that the parties “provide
the reports of retained experts . . . [as] required by Rule 26(a)(2) of the Federal Rules of
Civil Procedure.” (Doc. 28 at 2–3). The USO stated the deadlines for each party to provide
their expert witness disclosures and mandated that the parties “comply fully with all
requirements of Rule 26(a)(2) in regard to disclosure of expert testimony.” (Doc. 28 at 3).
On February 20, 2024, the Plaintiff sent opposing counsel an email with an attached resume
for the Plaintiff’s expert witness, Jon Newland. (Doc. 29 at 3); (Doc. 29-1). The Defendant
argues that the report does not meet the requirements of FED. R. CIV. P. 26(a)(2), and as
such must be excluded pursuant to FED. R. CIV. P. 37(c)(1).
II. LEGAL STANDARD
Rule 26(a)(2)(B) states that, for a witness “retained or specifically employed to
provide expert testimony in the case,” his “disclosure must be accompanied by a written
report” which contains the listed requirements pursuant to Rule 26(a)(2)(B)(i)–(vi),
including “a complete statement of all opinions the witness will express and the basis and
reasons for them,” FED. R. CIV. P. 26(a)(2)(B)(i), and “the facts or data considered by the
witness in forming them,” FED. R. CIV. P. 26(a)(2)(ii); see Crews v. Pfizer, Inc., 2024 WL
586449, at *2 (N.D. Ala. Feb. 13, 2024) (quoting FED. R. CIV. P. 26(a)(2)(C)(ii)) (“While
Rule 26 sets forth two types of expert witness disclosures, at a minimum, expert disclosures
must include ‘the facts and opinions to which the expert is expected to testify.’”). “A party
must make these disclosures at the times and in the sequence that the Court orders.” FED.
R. CIV. P. 26(a)(2)(D).
“The Court is given ‘broad discretion to preserve the integrity and purpose’ of the
pretrial scheduling order entered by the Court pursuant to Rule 16(b) of the Federal Rules
of Civil Procedure.” Howland v. Hertz Corp., 2007 WL 9723639, at *1 (M.D. Fla. Mar.
26, 2007) (quoting Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996)).
“Under Rule 37(c)(1), a district court clearly has authority to exclude an expert’s testimony
where a party has failed to comply with Rule 26(a) unless the failure is substantially
justified or is harmless.” OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 549 F.3d
1344, 1363 (11th Cir. 2008) (emphasis omitted). “The burden of establishing that a failure
to disclose was substantially justified or harmless rests on the nondisclosing party.”
Mitchell v. Ford Motor Co., 318 F. App’x 821, 824 (11th Cir. 2009) (quoting Leathers v.
Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006)).1
III. DISCUSSION
The Plaintiff’s expert disclosure does not meet the requirements of Rule
26(a)(2)(B). The expert disclosure comprises Jon Newland’s resume, which only provides
the witness’s qualifications. It does not provide his opinions, the facts he used to form his
opinions, any exhibits he will use, a list of all other cases in which he has testified as an
expert, or the compensation he will receive for his study and testimony of the case. FED.
R. CIV. P. 26(a)(2)(B). Further, the Plaintiff makes no argument that his non-compliance
with the Court’s USO and Rule 26 was substantially justified or harmless. His show cause
response simply states that he met the deadline to disclose his expert witness, that the expert
witness “has not prepared any reports about the case,” and that the Defendant knows the
expert witness’s opinions because it has a “transcript of the Montgomery City-County
Personnel Board Hearing at which Mr. Newland testified as to his expert opinions in this
case.” (Doc. 32 at 1). None of these pronouncements rise to the level of argument
demonstrating substantial justification for his noncompliance or that his noncompliance is
harmless to the Defendant. Cf. OFS Fitel, LLC, 549 F.3d at 1362–65 (holding that plaintiff
had “substantial justification for its conduct as to its expert report” because, inter alia, the
plaintiff told the defendant “repeatedly” that it needed attorney depositions before the
1 While the Court recognizes that Mitchell v. Ford Motor Co. is an unpublished opinion, the Court finds its
analysis to be persuasive.
expert witness could do her report). The fact that the Defendant allegedly has a transcript
from a prior hearing containing the expert witness’s opinion is insufficient to satisfy Rule
26(a)(2)(B)(i). “The obligation of a party under the expert disclosure rule is to set forth
the expert’s testimony regardless of whether the defendants may know what the testimony
will be.” Chapple v. Alabama, 174 F.R.D. 698, 701 (M.D. Ala. 1997).2 Even if it did
satisfy Rule 26(a)(2)(B)(i), the disclosure is still deficient under Rule 26(a)(2)(B)(ii–vi).
The information required by Rule 26(a)(2)(B) “is required in the expert’s written
report precisely because it is important information necessary to attorneys in preparation
for deposing the expert.” OFS Fitel, LLC, 549 F.3d at 1362. A transcript from a prior
hearing and a resume “provides no notice to the defendants as to what [the expert witness’s]
direct testimony will be” and does not allow the Defendant to adequately prepare for their
own expert witness disclosures or for deposition of the Plaintiff’s expert witness. Chapple,
174 F.R.D. at 701. Because the Plaintiff’s expert disclosure does not comport with the
requirements of the Court’s USO and Rule 26 by not providing a proper expert witness
report, and because the Plaintiff does not offer a sufficient justification for his deficiency,
the Court finds that exclusion is appropriate.
IV. CONCLUSION
Accordingly, for the reasons stated, and for good cause, it is
ORDERED that the motion to exclude expert witness (doc. 29) is GRANTED.
2 Although the Middle District had “opted out of many of the provisions of Rule 26 of the Federal Rules of
Civil Procedure” at the time of the case, “[m]uch of the language of Rule 26 [had] been incorporated into
the court’s Uniform Scheduling Order.” Chapple, 174 F.R.D. at 699. Therefore, this Court finds its analysis
persuasive.
DONE this 8th day of April, 2024.
/s/ Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE