United States District Court, M.D. Georgia, Columbus Division
D. LAND CHIEF U.S. DISTRICT COURT JUDGE
before the Court is Defendants' motion to exclude the
expert testimony of Trooper Harold Davis of the Alabama Law
Enforcement Agency (ECF No. 55). The motion is granted in
part and denied in part to the extent set forth below.
Federal Motor Carrier Safety Administration ordered a
compliance investigation of Howard Leasing after the bus
crash that gave rise to this action. Within a week after the
crash, Davis conducted the investigation and prepared a
report. Plaintiffs intend to have Davis testify at trial
regarding his findings from the investigation. Plaintiffs
also intend to have Davis offer an opinion on how often a
motor carrier should check its drivers' logs. Defendants
argue that this testimony should be excluded because
Plaintiffs did not properly disclose Davis as an expert.
Defendants also argue that Davis is unqualified to render
opinions in this case.
must disclose the identity of any witness it may use at trial
to present expert opinion evidence. Fed.R.Civ.P. 26(a)(2)(A).
Witnesses who are retained or specially employed to provide
expert testimony must provide an expert report. Non-retained
witnesses like Davis still must be disclosed, but an expert
report is not required. Instead, the party seeking to use the
witness must disclose the subject matter on which the witness
is expected to present expert opinion, as well as a summary
of the facts and opinions to which the witness is expected to
testify. Fed.R.Civ.P. 26(a)(2)(B). “If a party fails to
provide information or identify a witness as required by Rule
26(a) . . ., the party is not allowed to use that information
or witness to supply evidence . . . at a trial, unless the
failure was substantially justified or is harmless.”
did not officially disclose Davis as an expert witness, and
they did not disclose the subject matter of his testimony or
the facts and opinions to which Davis is expected to
testify. But Plaintiffs did disclose
Davis's compliance investigation report during discovery,
and the parties had an opportunity to question him about it
during his deposition.
extent that Defendants seek to prevent Davis from testifying
about his investigation and compliance report, the Court
denies that motion. As a safety auditor and compliance
investigator who has completed dozens of safety audits and
compliance investigations and who conducted the compliance
investigation of Howard Leasing for the Federal Motor Carrier
Safety Administration, Davis was qualified to conduct the
investigation and prepare the report. Plaintiffs disclosed
the report during discovery, and Defendants questioned Davis
about the report during his deposition. It could hardly be a
surprise to Defendants that Plaintiffs intended to call Davis
to testify about his compliance investigation and report.
Thus, Plaintiffs' alleged failure to fully comply with
Rule 26(a) was harmless.
also argue that Davis should not be permitted to offer an
opinion about how often a motor carrier should review its
drivers' logs because that opinion was not disclosed
until his deposition. During his investigation, Davis
explored Howard Leasing's practices on reviewing driver
logs. His report addressed several log violations, but his
report did not explicitly state an opinion on whether Howard
Leasing checked its drivers' logs often enough. At his
deposition, knowing that Davis described log violations in
his report, Defendants' counsel asked Davis whether
Howard Leasing knew about the violations at the time of his
investigation given that Howard Leasing reviewed its
drivers' logs quarterly. Davis Dep. 196:4-197:5, ECF No.
32. Davis stated that a motor carrier should check the logs
“way more often than every quarter.” Id.
208:16-18. Defendants argue that because they did not know
that Davis might offer this opinion, they could not
adequately cross-examine him on it during the deposition.
Plaintiffs contend that they did not know about this specific
opinion until Davis disclosed it during his deposition, so
they could not have disclosed it earlier. The Court finds
that Defendants had reasonable notice before Davis's
deposition that Howard Leasing's practices on reviewing
driver logs were an issue in this action. And they were able
to explore Davis's opinions on this issue during his
deposition. They also have ample opportunity to prepare to
address the opinions at trial.
their motion to exclude Davis's testimony, Defendants
also seek to exclude Davis's opinions regarding when a
motor carrier should use progressive discipline with its
drivers and how a motor carrier may rely on outside sources
to understand the applicable rules and regulations.
Plaintiffs did not respond to Defendants' motion to
exclude these opinions or explain why Davis should be
permitted to offer such testimony. The Court thus concludes
that Plaintiffs do not intend to elicit such testimony at
trial, and Defendants' motion to exclude Davis's
testimony on these issues is granted.
summary, Defendants' motion to exclude Davis is granted
in part and denied in part to the extent set forth above.
Plaintiffs previously stated that they intend to introduce
the edited video deposition of Davis at trial. But at the
pretrial conference, the Court emphasized that if Plaintiffs
want to use Davis's deposition rather than live testimony
at trial, Plaintiffs must prove that Davis is unavailable
under applicable law. Plaintiffs have not done so.
Accordingly, the Court expects Davis to testify live, which
means that Defendants will have an opportunity to
cross-examine him. If Plaintiffs still intend to use
deposition testimony in lieu of live testimony, they shall
file an appropriate motion within seven days. If Plaintiffs
prove that Davis is unavailable, the Court will permit a
trial deposition of Davis so that Defendants may adequately
 Plaintiffs assert that they intended
to use Davis as a fact witness and to authenticate his
report. But because Plaintiffs anticipated that Defendants
might view some of Davis's findings as opinion testimony
rather than fact testimony, Plaintiffs laid the foundation to
qualify Davis as an expert regarding compliance, application
and enforcement of the Federal Motor Safety Act.
 Defendants summarily assert that
Davis's testimony on this issue is inconsistent with the
federal regulations, but the present record does not contain