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Westmore v. Hyde

United States District Court, W.D. Wisconsin

May 5, 2016



WILLIAM M. CONLEY District Judge

On December 12, 2014, plaintiffs Patricia and Dwight Westmore filed this lawsuit following a search of their property and the seizure of several of their animals by various officials of Ashland County, Wisconsin. Before the court is defendants’ motion for summary judgment (dkt. #17), which will be granted in part and denied in part for the reasons that follow.


As a preliminary matter, plaintiffs move to strike several affidavits and exhibits prepared by four of defendants’ expert witnesses (Szenay, Jahnke, Callae Hyde and David Hyde) in support of the motion for summary judgment. (Dkt. #53.) Plaintiffs argue that defendants improperly classified those witnesses as experts under Federal Rule of Civil Procedure 26(a)(2)(C), who were not required to provide a written report, thereby prejudicing plaintiffs’ ability to respond to their subsequent affidavits and exhibits in support of defendants’ motion for summary judgment. In addition to contending that their expert disclosures satisfied any Rule 26 obligation, defendants argue that they should not be faulted for plaintiffs’ failure to notice depositions for Szenay and Jahnke further in advance of their deadline to respond to defendants’ motion for summary judgment.

Among other things, Rule 26(a)(2)(B) requires a party to provide a timely, detailed written report “if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” In particular, the report “must contain”:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data 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 trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B). In contrast, “if the witness is not required to provide a written report, ” the party need only disclose:

(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.

Fed. R. Civ. P. 26(a)(2)(C).

Defendants served their Rule 26(a)(2) expert disclosures on October 30, 2015, the deadline established in the pretrial conference order. Their four-page disclosure identifies eight, individual experts, including Szenay, Jahnke, Callae Hyde and David Hyde, noting that none of the listed witnesses were expected to receive “compensation” for their testimony. The report also summarizes the topics about which Szenay and Jahnke were expected to testify, including animal cruelty investigations generally and the conditions of plaintiffs’ animals. The report further indicates that Callae Hyde and David Hyde were expected to testify about various other topics, including protocols followed by humane officers in Wisconsin and training regarding the removal of animals under Wis.Stat. § 173, respectively.

Plaintiffs do not dispute that defendants’ expert disclosures would satisfy the requirements of Federal Rule of Civil Procedure 26(a)(2)(C) if the experts were not Rule 26(a)(2)(B) witnesses “retained or specially employed to provide expert testimony in the case.” They argue that defendants should have designated the four experts under Rule 26(a)(2)(B) because their affidavits and exhibits “consist largely of independent veterinary medical opinion evidence, and technical humane officer opinion evidence” (Pls.’ Opening Br. (dkt. #55) at 12), but this argument misses the mark. Defendants obviously concede that the affidavits and exhibits contain expert opinion testimony, which is why defendants disclosed each of the four experts as Rule 26(a)(2)(C) witnesses by the deadline established by the court.

The central question is neither whether defendants’ experts will receive compensation for their testimony, nor whether the affidavits and exhibits contain expert opinions, but rather whether the experts are principally rendering opinions of a type and in a manner warranting greater disclosure under 26(a)(2)(B). Here, plaintiffs have failed to show that Callae and David Hyde are expert witnesses for whom a detailed, written report is required for several reasons. First, they are full time employees of defendant Ashland County, who do not regularly give expert opinion testimony. The advisory committee notes to the 2010 amendment of Rule 26 specifically identify such employees as “[f]requent examples” of Rule 26(a)(2)(C) witnesses who may provide both fact and expert testimony. Second, plaintiffs point to nothing in this record suggesting that despite the Hydes being named defendants, central fact witnesses and the type of employees who are frequently named Rule 26(a)(2)(C) experts, they have nevertheless been “retained or specially employed” to provide opinion testimony. Cf. Downey v. Bob’s Discount Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011) (“In order to give the phrase ‘retained or specially employed’ any real meaning, a court must acknowledge the difference between a percipient witness who happens to be an expert and an expert who without prior knowledge of the facts giving rise to litigation is recruited to provide expert opinion testimony.”).[1]

Whether Szenay and Jahnke are properly characterized as Rule 26(a)(2)(C) experts is a closer question. On one hand, since both veterinarians examined the health of plaintiffs’ animals for the purpose of determining whether they should be put down or taken away from plaintiffs, they would ordinarily qualify as treating physicians for whom a written report is not required. See Fed. R. Civ. P. 26, Advisory Committee Notes, 2010 Amendment (identifying “physicians or other health care professionals” as “[f]requent examples” of Rule 26(a)(2)(C) experts). On the other hand, plaintiffs have come forward with sufficient evidence to at least raise a suspicion that Szenay and Jahnke have been “retained or specially employed” to provide additional expert testimony in this case. Both admit in supplemental affidavits that they did not formalize their reports until February or March 2014, weeks after they examined plaintiffs’ animals in December 2013, and more importantly to plaintiffs’ motion to strike, after the prospect of litigation between the parties had become substantially more likely. Cf. EEOC v. AutoZone, Inc., 707 F.3d 824, 833 (7th Cir. 2013) (“[A] treating physician can provide an expert opinion without submitting a written report if the physician’s opinion was formed during the course of the physician’s treatment, and not in preparation for litigation.”).

That being said, plaintiffs do not demonstrate that defendants formally retained Szenay and Jahnke to provide expert testimony in this case, nor more importantly that their affidavits and exhibits reflect opinions formed in preparation of litigation, as opposed to their first-hand observations and opinions about the health of plaintiffs’ animals at the time of their original inspections. Cf. Eberhart v. Novartis Pharm. Corp., 867 F.Supp.2d 1241, 1252-52 (N.D.Ga. 2011) (“[T]reating physicians who are not designated as experts may offer ‘lay’ testimony that implicates their specialized experience as a physician if the testimony is an account of their observations during the course of treatment or if it is offered for the purpose of explaining the physician’s decision-making process or the treatment provided.”) Indeed, although their reports were not prepared contemporaneously with their examination of plaintiffs’ animals, nothing suggests that defendants asked Szenay and Jahnke to offer opinions beyond the scope of their personal observations in the course of their examinations. See, e.g., Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729, 734-35 (7th Cir. 2010) (“[A] treating physician who is offered to provide expert testimony as to [a particular issue], but who did not make that determination in the course of providing treatment, should be deemed one ‘retained or specially employed to provide expert testimony in the case, ’ and thus is required to submit an expert report in accordance with Rule 26(a)(2).”) Accordingly, Szenay and Jahnke are also not 26(a)(2)(B) witnesses, and plaintiffs’ motion to strike will be denied.[2]


I. The Parties

Plaintiff Patricia A. Westmore is 72 years old and resides with her husband and fellow plaintiff, Dwight Westmore, in Butternut, Wisconsin. The Westmores have owned horses and donkeys on their property for a number of years.

Defendant David Hyde resides in Washburn, Wisconsin, with his wife and fellow defendant, Callae Hyde. At all times relevant to this lawsuit, Callae Hyde was the only Humane Officer appointed by Ashland County. The parties dispute whether David Hyde had the legal authority of a Humane Officer during the events relevant to this lawsuit, but there is no dispute that he acted on behalf of defendant Ashland County. Finally, defendant Michael Brennan is the Ashland County Sheriff, and defendant Terri Provost is a deputy sheriff with the Ashland County Sheriff’s Department.

II. Gina Benson’s Complaint

On December 26, 2013, a member of a horse rescue organization, Gina Benson, called the Ashland County Sheriff’s Dispatch Office to report neglect of a donkey and multiple horses at the Westmores’ residence. That same morning, David Hyde received a page informing him of Benson’s report. He then called his wife, Ashland County Humane Officer Callae Hyde, to share that information.

Since Callae was traveling outside of Wisconsin on December 26 and 27, 2013, she told David that she would contact the Ashland County Sheriff’s Department and veterinarian Lesley Szenay, who had worked with Gina Benson and the horse rescue organization to which Benson belonged, and then call David back. At some point on December 26, defendants claim that Callae spoke with Szenay, who indicated she was willing to examine plaintiffs’ animals the following day.

When she called the Ashland County Sheriff’s Department to discuss Benson’s complaint, Callae spoke with Sheriff Michael Brennan. After Callae explained the situation to him, including that David would be responsible for responding to Benson’s complaint on behalf of Callae since she was traveling, Brennan advised them to “respond accordingly.” At this point, it is undisputed that Brennan did not recommend that they obtain a warrant to search plaintiffs’ property or seize their animals.

After speaking with Brennan, Callae then called David, telling him to contact Szenay and make arrangements to meet at plaintiffs’ property the following morning. During one of their phone conversations, Callae also told David that he should inform plaintiffs about Benson’s ...

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