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T.A. v. McSwain Union Elementary School Dist.

March 18, 2010

T.A., A MINOR, (BY AND THROUGH NEXT FRIEND, ANNA AMADOR), PLAINTIFF,
v.
MCSWAIN UNION ELEMENTARY SCHOOL DISTRICT; TERRIE ROHRER, PRINCIPAL OF MCSWAIN ELEMENTARY SCHOOL, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; C. W. SMITH, ASSISTANT PRINCIPAL OF MCSWAIN ELEMENTARY SCHOOL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND, MARTHA HERNANDEZ, OFFICE CLERK FOR MCSWAIN ELEMENTARY SCHOOL, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

STIPULATION REGARDING DEFENDANTS' NON-RETAINED EXPERT WITNESSES; ORDER

THE PARTIES HERETO, BY AND THROUGH THEIR COUNSEL OF RECORD, ENTER INTO THE FOLLOWING RECITALS AND STIPULATION:

BACKGROUND

Pursuant to F.R.Civ.P., Rule 26(a)(2), Defendants MCSWAIN UNION ELEMENTARY SCHOOL DISTRICT; TERRIE ROHRER; C. W. SMITH; and MARTHA HERNANDEZ ("Defendants") have disclosed to Plaintiff T.A., a minor, by and through next friend ANNA AMADOR ("Plaintiff"), the identities of witnesses they may use at trial to present evidence under F.R.E., Rules 702, 703, and 705 ("expert witnesses");

Defendants have identified Defendants TERRIE ROHRER and C.W. SMITH and Stan Mollart, Superintendent of MCSWAIN UNION ELEMENTARY SCHOOL DISTRICT, who are parties to this action and employees of the same, as their non-retained expert witnesses ("non-retained expert witnesses");

Terrie Rohrer, C.W. Smith and Stan Mollart submitted to examination at deposition on December 8, 9 and 10, 2009, with full transcripts generated as to the questions, testimony and opinions generated therefrom;

PLAINTIFF'S CONTENTIONS

Plaintiff contends that the non-retained expert witnesses have been examined at deposition in this case in their capacity as Defendants and fact/percipient witnesses;

Plaintiff further contends that the non-retained expert witnesses were examined solely for the purpose of eliciting Rule 701 lay opinion testimony (a) rationally based on the perception of the witness and (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;

Plaintiff further contends that she has examined seven (7) witnesses, including Defendant TERRIE ROHRER in her individual capacity and as a witness pursuant to F.R.Civ.P., Rule 30(b)(6), and therefore is entitled to take an additional three (3) depositions of fact witnesses,;

Plaintiff further contends that expert witnesses do not fall within the "Rule of 10" embodied within F.R.Civ.P., Rule 30(a)(2)(A)(i) and that she is not required to obtain leave of court to examine these witnesses;

Plaintiff now wishes to examine Defendants' non-retained expert witnesses to ascertain (1) whether they possess scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue and would therefore qualify as an expert in a field relevant to the issues in this case; (2) what facts or data they relied upon in forming expert opinions in this case, (3) the reliability of principles and methods they utilized in forming expert opinions in this case, and (4) the reliability of the application of principles and methods to the facts of the case by these witnesses in forming their expert opinions;

Plaintiff contends she has timely served Defendants with a Notice of Deposition for the purpose of examining their non-retained expert witnesses ...


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