United States District Court, D. Maine
MELISSA A. ADLE, PERSONAL REPRESENTATIVE OF THE ESTATE OF SHAD I. GERKEN, Plaintiff
STATE OF MAINE DEPARTMENT OF PUBLIC SAFETY, et al., Defendants
ORDER ON PLAINTIFF'S MOTION TO AMEND SCHEDULING
C. NIVISON, U.S. MAGISTRATE JUDGE
action, Plaintiff Melissa Adle, Personal Representative of
the Estate of Shad Gerken, alleges that during an encounter
with Mr. Gerken, Defendants, which consist of the Maine
Department of Public Safety and certain public safety
officers, used lethal force in violation of Mr. Gerken's
matter is before the Court on Plaintiff's Motion to Amend
Scheduling Order to Permit Designation of Rebuttal Witness.
(ECF No. 37.) Following a review of the record, and after
consideration of the parties' arguments, the motion is
to the scheduling order, Plaintiff was required to identify
her expert witnesses by March 30, 2016; Defendants were to
identify their expert witnesses by May 4, 2016. (ECF No. 22.)
The discovery deadline expired on July 1, 2016.
timely designated James Baranowski as a liability expert. Mr.
Baranowski is expected to testify that the application of
force was unreasonable based in part on the availability of
use-of-force options less lethal than those employed, such as
the use of the police canine that was present at the scene.
(Defendants' Objection, Ex. B, June 3, 2016, Baranowski
Dep. Tr. at 275 - 276, ECF No. 43-2.) At his deposition, Mr.
Baranowski testified that he had never been a canine handler
or been trained to handle canines. (Id. at 276.)
designated James Scanlon as their liability expert. Mr.
Scanlon reportedly has experience and training regarding the
use of police canines. In his May 3, 2016, report, Mr.
Scanlon asserted that police canines should not be deployed
against armed persons (Mr. Gerken allegedly had a Bowie knife
at the time) because the death of the canine is the likely
consequence and the canine's death would serve no
purpose. (Id., Ex. A, May 3, 2016, Letter of James
Scanlon to AAG Jonathan Bolton at 12, ECF No. 43-1.)
Plaintiff conducted Mr. Scanlon's deposition on June 28,
2016. (Plaintiff's Motion at 2.)
days after Mr. Scanlon's deposition, and approximately
three months after Mr. Scanlon's designation, Plaintiff
obtained a report from Ernest Burwell Police Consulting.
(Id., Ex. C, Aug. 4, 2016, Letter of Ernest Burwell
to Atty. Lawrence Volgleman, ECF No. 43-3.) In his report,
Mr. Burwell, after noting that Mr. Gerken was shot during two
distinct engagements, each involving multiple shots (an
initial volley of gunfire that cause him to fall to the
ground, and a second round when he attempted to get up from
the ground), Mr. Burwell opined that Defendants could have
deployed the canine between the two engagements.
(Id. at 6 - 7.) Through her motion, Plaintiff seeks
the Court's permission to designate Mr. Burwell as an
to civil litigation “must disclose to the other parties
the identity of any witness it may use at trial to present
[expert opinion testimony].” Fed.R.Civ.P. 26(a)(2)(A).
“A party must make these disclosures at the times and
in the sequence that the court orders.” Fed.R.Civ.P.
26(a)(2)(D). “Absent a stipulation or court
order” to the contrary, “if the evidence is
intended solely to contradict or rebut evidence on the same
subject matter identified by another party [related to expert
opinion testimony], ” then “the disclosure must
be made … within 30 days after the other party's
disclosure.” Fed.R.Civ.P. 26(a)(2)(D)(ii). “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 on a motion,
at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
the request requires the extension of a court-ordered
deadline after the deadline has expired, the party requesting
the extension must demonstrate good cause for the failure to
identify the expert in accordance with the applicable rules.
Fed.R.Civ.P. 16(b)(4). The good cause standard “focuses
on the diligence (or lack thereof) of the moving party more
than it does on any prejudice to the party-opponent.”
Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st
Cir. 2004). “Particularly disfavored are motions to
amend whose timing prejudices the opposing party by
‘requiring a re-opening of discovery with additional
costs, a significant postponement of the trial, and a likely
major alteration in trial tactics and strategy.'”
Id. (quoting Acosta-Mestre v. Hilton Int'l
of P.R., Inc., 156 F.3d 49, 52 (1st Cir. 1998)).
Additionally, a request for a sanction other than preclusion,
or for no sanction at all, is assessed by means of “an
array of factors, ” including the justification for the
late disclosure, the opposing party's ability to overcome
adverse effects, the procedural history, the impact on the
court's docket, and the importance of the evidence to the
sanctioned party's case. Harriman v. Hancock
Cty., 627 F.3d 22, 30 (1st Cir. 2010).
support of her request to permit the late designation of Mr.
Burwell, Plaintiff explains that “[d]uring discovery,
considerable debate has arisen regarding whether or not it
was appropriate to use a canine.” (Plaintiff's
Motion at 1.) Plaintiff also argues that Mr. Scanlon's
deposition prompted the need for a rebuttal witness because
Mr. Scanlon testified that “most police departments
around the U.S. do not use dogs to apprehend armed
individuals” and that “police dogs are usually
not trained to apprehend individuals who are lying on the
ground.” (Id. at 2.) Plaintiff asserts that
the representations are contrary to the lay understanding of
how canines might be used and, therefore, it is of
“vital” importance that Mr. Burwell be permitted
to testify in rebuttal. (Id.)
contention that Mr. Scanlon's testimony introduced a new
issue that warrants leave to identify a rebuttal expert
witness is unpersuasive. Because Plaintiff did not timely
identify Mr. Burwell as an expert witness, Plaintiff must
demonstrate good cause for the late designation. Given that
Plaintiff filed the motion four months after Defendants
designated Mr. Scanlon as an expert witness, that Mr.
Scanlon's deposition testimony did not differ materially
from the designation, that the discovery period had expired
when Plaintiff filed the motion, and that Defendants had
filed a notice of intent to file a motion for summary
judgment by the time Plaintiff filed the motion, the factors
relevant to the good cause assessment militate in favor of a
denial of the motion.
more importantly, the Court simply does not construe Mr.
Scanlon's expected testimony as introducing a new issue
that requires an expert witness regardless of the time the
rebuttal expert might be designated. In support of her claim,
Plaintiff, through Mr. Baranowski, cites the use of a canine
as a reasonable alternative to the use of lethal force
employed by Defendants. Defendants retained an expert in an
effort to refute Plaintiff's contention. Both experts
thus have offered opinions as to whether the use of a canine
during the encounter between Mr. Gerken and law enforcement
officials was appropriate. Each expert will presumably
testify in support of that expert's opinions and attempt
to explain the reasons the other expert's opinions are
unfounded or unreliable. In other words, each expert will in
some way rebut the other expert's testimony. In this way,
the case is like most cases in which the parties designate
expert witnesses who offer different opinions on a particular
subject matter. To permit the late designation of Mr. Burwell
as an expert witness under the circumstances of this case
would in essence ...