United States District Court, W.D. Wisconsin
MICHAEL E. LAMPHEAR, d/b/a EASTON TOWING, Plaintiff,
ROBERT D. SPODEN, KATHY SUKUS, DAVID J. MOORE, JAMES HOLFORD, CITY OF JANESVILLE, and ROCK COUNTY, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
Michael Lamphear operates a towing company. Defendants are
the City of Janesville and Rock County, and various officials
associated with the Rock County Sheriff's Department and
Janesville Police Department. Lamphear contends that
defendants wrongfully removed Lamphear from lists of approved
towing vendors, barred Lamphear and his service dog entry to
public buildings, and blacklisted Lamphear from receiving
public services. Lamphear filed this suit challenging his
removal from the lists and his inability to access public
buildings and services. Dkt. 1.
move to strike all six of Lamphear's expert witnesses
because of Lamphear's failure to properly disclose their
opinions as required by Federal Rule of Civil Procedure
26(a)(2). Dkt. 18. Alternatively, defendants ask the court to
order Lamphear to supplement his disclosures and extend the
deadline for defendants' expert disclosures. The court
will grant defendants' alternative request for relief.
Lamphear must supplement his expert disclosures by August 2,
2018, and defendants' deadline to disclose expert
witnesses is extended to September 16, 2018. The court cannot
extend these disclosure deadlines any further.
disclosure is governed by Rule 26(a)(2), which states that
experts who are retained or specially employed to provide
expert testimony must file full, written reports. Experts who
are not retained-and were personally involved with the facts
of the case-may testify as hybrid fact-and-expert witnesses.
Hybrid witnesses do not need to file a full expert report,
but they must still disclose (1) the subject matter of their
testimony and (2) a summary of the facts and opinions to
which they will testify. Fed.R.Civ.P. 26(a)(2)(C). A broad
statement that fact witnesses are also qualified as experts
is not an adequate disclosure. See e.g Karum Holdings LLC
v. Lowe's Companies, Inc., --F.3d.--, No. 18-1007,
2018 WL 3407868, at *5 (7th Cir. July 13, 2018).
from hybrid witnesses is more limited than testimony from
retained experts. Hybrid witnesses must testify only from
their personal knowledge and may only offer expert opinions
that they formed during their prior involvement with the
facts of the case. Indianapolis Airport Auth. v.
Travelers Prop. Cas. Co. of Am., 849 F.3d 355, 371 (7th
Cir. 2017). If an expert's testimony includes opinions
that were formed in response to litigation, then the expert
is considered to be retained and must file a full report.
Meyers v. National R.R. Passenger Corp., 619 F.3d
729, 734-35 (7th Cir. 2010).
contends that all of his expert witnesses are hybrid
witnesses. But this is incorrect. At least two of the
witnesses-Anthony Smith and Sean Topel-appear to have no
personal knowledge of the case at all. They must file full
expert reports that comply with Rule 26(a)(2)(B).
of the witnesses appear to be testifying as to their personal
knowledge of the facts of the case. Mark Pease and Jennifer
Taylor are medical professionals who will testify about their
treatment of Lamphear. Kathryn Vivian is Lamphear's
personal accountant, and she will identify financial
documents that she prepared on Lamphear's behalf. As long
as these three witnesses are only providing expert opinions
that they formed during their prior involvement with Lamphear
and the facts of this case, then they are hybrid witnesses
and exempt from Rule 26(a)(2)(B). But Lamphear must still
satisfy Rule 26(a)(2)(C). Lamphear's current disclosures
only include the subject matter of each witness's
testimony. They do not satisfy the second requirement: a
summary of the facts and opinions about which the witnesses
are expected to testify. Nor do they clarify whether the
witnesses will provide expert testimony at all.
example, as to the testimony of Lamphear's accountant
Vivian, Lamphear states that she will authenticate tax
returns and balance sheets regarding Lamphear's business.
As defendants properly point out, this testimony could be
considered fact testimony, but if Vivian were to provide
additional analysis or an opinion on the cause for any change
in income, that would be expert testimony. Lamphear must
disclose to defendants (1) whether Vivian will provide expert
testimony and (2) the specific facts and opinions to which
she will testify as an expert. Lamphear's description of
another witness, Pease, is even vaguer. Lamphear only states
that “he will testify as an expert as to the diagnosis
and treatment of Mr. Lamphear.” Dkt. 17. This says
nothing about the facts and opinions that Pease will testify
to as an expert, so it does not comply with Rule 26(a)(2)(C).
court cannot itemize for Lamphear all the disclosures that he
must make; only Lamphear knows how his experts will testify.
The court will strictly limit expert testimony to the facts
and opinions that appear in Lamphear's supplemented
disclosure. Lamphear must clearly delineate between fact
witnesses, expert witnesses, and hybrid witnesses.
it is not clear whether the last witness, Colonel Charles
Teasdale, is a hybrid witness. Lamphear's disclosure
states that Teasdale is a member of the Wisconsin State
Patrol who will testify regarding the requirements for tow
truck operators under Appendix G of the Emergency Traffic
Control and Scene Management Guidelines. Lamphear further
states that “Teasdale may also testify to his
communications involving the Plaintiff.” Id.
If Teasdale is merely authenticating documents, then that
would be fact witness testimony. But if Teasdale is providing
an opinion on whether Lamphear's towing business complied
with traffic regulations, then that is an expert opinion that
must be disclosed. Lamphear will need to determine whether
Teasdale's expert opinions were formed during
Teasdale's personal involvement with the facts of the
case. If so, then Teasdale is a hybrid expert and must
disclose a summary of the facts and opinions to which he will
testify as an expert. If not, then Teasdale is a retained
expert and must disclose a full expert report. Either way,
Lamphear's current disclosure is insufficient and must be
IT IS ORDERED that:
Defendants Robert D. Spoden, Kathy Sukus, David J. Moore,
James Holford, City of Janesville, and Rock County's
motion to strike plaintiff's expert witnesses, Dkt. 18,
is GRANTED in part.
Plaintiff Michael Lamphear must supplement his expert