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Burreson v. BASF Corp.

United States District Court, E.D. California

August 22, 2014

BASF CORP., Defendant.


ALLISON CLAIRE, Magistrate Judge.

On August 20, 2014, the Court held a hearing on defendant's July 21, 2014 motion to preclude plaintiff form eliciting opinion testimony from certain expert witnesses. Joseph Salazar and Li Watkins appeared for defendant BASF Corporation ("BASF"). Plaintiff did not make an appearance. On review of the motion and the parties Joint Statement re Discovery Disagreement, THE COURT FINDS AS FOLLOWS:


A. Relevant Procedural Background

This action was initiated on January 10, 2013 and is proceeding on a first amended complaint filed June 24, 2013. A scheduling order issued on September 16, 2013, setting forth the following relevant dates: non-expert discovery deadline, May 2, 2014; deadline for expert disclosures, July 2, 2014; dispositive motion deadline, heard by November 6, 2014 (motion must be filed on or before September 11, 2014); and jury trial, April 13, 2015. ECF No. 25.

B. Relevant Dispute Background

Plaintiff, one of the first perennial crop farmers to grow blueberries in Glenn County, California, claims that did not see the returns in blueberry production that he was expecting and alleges that Pristine, a fungicide manufactured and distributed by defendant BASF, is responsible for the perceived shortfall. Some of the issues involved in this case are whether Pristine could have caused the alleged damages, what yields plaintiff could have reasonably expected, and what blueberries were selling for each year from 2006-2014. The instant dispute concerns the adequacy of plaintiff's Rule 26 disclosure of five "non-retained" experts on these disputed issues.

On October 17, 2013, plaintiff served his Initial Disclosures on defendant, which included a summary of the entire witness testimony plaintiff expected to utilize at trial, including both non-retained and retained experts. Pl.'s Opp'n to Mot. to Strike Expert Designations, Ex. 1. As for non-retained experts, plaintiff identified himself; his son, Heath Burreson; Tom Avinelis; and Gregory Willems.

On November 15, 2013, defendant served discovery requests on plaintiff, including a set of interrogatories, Number Five of which specifically asked plaintiff:

If any of the allegations of YOUR First Amended Complaint are supported in whole or in part by expert opinion, then please STATE: (a) the identity of each Person whom YOU expect to call as an expert witness at trial; (b) the professional qualifications and experience of each such expert; (c) the subject matter on which each such expert is expected to testify; (d) the substance of the facts and opinions to which each such expert is expected to testify; and (e) a separate summary of the grounds for each such opinion to be given by each such expert.

J. Statement re Disc. Disagreement ("JSDD"), Ex. C at 4. Plaintiff objected to the interrogatory and referred defendant to plaintiff's initial disclosures. JSDD 7.

On April 8, 2014, defendant deposed plaintiff, and on April 9, 2014, defendant deposed William Sabol, later identified in plaintiff's Expert Disclosures as a non-retained expert. JSDD, Ex. D (Sabol), Ex. F (plaintiff); Pl.'s Expert Discl., ECF No. 26. Defendant also deposed Heath Burreson on an unidentified date, but has not deposed Avinelis or Willems.

On July 2, 2014, the parties simultaneously filed their Rule 26(a)(2) Expert Disclosures pursuant to the deadline for expert disclosures. ECF Nos. 26-27. As in his initial disclosures, plaintiff identified Avinelis, Willems, Heath Burreson and himself as "non-retained" experts, but also identified William Sabol. For each of these non-retained witnesses, plaintiff provides that "Pursuant to FRCP section 26 (2)(a)(b), as a non-retained expert witness, he is not required to, and has not prepared a written report, and he is not being paid for his testimony."

On July 7, 2014, defendant sent plaintiff an email objecting to his failure to identify the opinions of his non-retained experts and thus, his alleged failure to comply with Federal Rule of Civil Procedure 26(a)(2)(B) and (C). On July 11, 2014, and July, 15, 2014, the parties conferred about the discovery dispute but were unable to reach an agreement.


Federal Rule of Civil Procedure 26 requires parties to "disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed.R.Civ.P. 26(a)(2)(A). Generally, the disclosure regarding expert testimony is intended to allow the opposing party to have a reasonable opportunity to prepare for effective cross-examination and arrange for expert testimony from other witnesses. See Adv. Comm. Notes to 1993 Amendments. The Federal Rules contemplate two different classes of experts: those retained or specially employed to give expert testimony in a case, and witnesses who are not retained or specially employed but, nevertheless, may provide expert testimony. See Elgas v. Colorado Belle Corp. , 179 F.R.D. 296, 298 (D. Nev. 1998) (citing Piper v. Harnischfeger Corp. , 170 F.R.D. 173, 174 (D. Nev. 1997)). For experts "retained or specifically employed to provide expert testimony, " the disclosure requirements are as follows:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at ...

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