The plaintiff, a former Financial Manager in the Office of the CFO for the District of Columbia, who recently brought an action under the Americans with Disabilities Act (ADA) against the D.C. Mayor.

The plaintiff claimed he injured himself as he sat down in his chair at work. After the accident, he didn’t return and was eventually placed on leave without pay after using all of his annual and sick leave. The plaintiff was denied disability retirement benefits, and later asked to return to work with certain accommodations. The parties disagree as to what happened after that, but it’s undisputed that he didn’t return and was terminated.


He claimed that:

  1. he was denied a reasonable accommodation for his disabilities when he sought to return to work, in violation of the ADA; and
  2. he was terminated and precluded from further employment with the District on the basis of his disability in violation of the ADA and the Rehabilitation Act of 1973.

Dr. DRG conducted an independent medical exam of the plaintiff in connection with his claim for disability retirement benefits.  The plaintiff wanted to call DRG as a witness and to introduce the report he completed on his exam at trial. The defense moved to exclude DRG’s testimony on the grounds the plaintiff didn’t identify DRG as an expert witness or provide an expert report as is required under Federal Rule of Civil Procedure 26(a)(2).

District Judge Colleen Kollar–Kotelly of the U.S. District Court in the District of Columbia wrote that there was no dispute that the plaintiff failed to disclose DRG as a potential expert witness as required by the rule. She stated that the notice requirement of Rule 26(a)(2)(A) applied to any witness a party may call to provide expert opinions under Federal Rule of Evidence 702. Whether the witness was retained for a specific case will govern the scope of the required disclosure, the judge said.  However, the fact that he didn’t retain DRG didn’t excuse him of the obligation to disclose DRG as an expert to the extent he intended to elicit expert opinions from him.

Plaintiff argued that DRG had personal knowledge based on his examination of him and should be allowed to testify as to what he saw and to explain his diagnosis. However, Judge Kollar–Kotelly wrote:

[A] treating doctor (or similarly situated witness) is providing expert testimony if the testimony consists of opinions based on ‘scientific, technical, or other specialized knowledge’ regardless of whether those opinions were formed during the scope of interaction with a party prior to litigation.

The exclusion of non-disclosed evidence is automatic and mandatory under Federal Rule of Civil Procedure 37(c)(1), Judge Kollar–Kotelly wrote, unless non-disclosure was justified or was harmless. The plaintiff didn’t give any explanation for not complying with Rule 26(a)(2)(A). His argument was that any error was harmless because at the time, DRG was employed by a DC government agency that could obtain any information they wanted from him at the time. The judge reasoned that the fact that DRG was employed by the District in 2005—long before this litigation was contemplated—didn’t make plaintiff’s failure to disclose him as an expert witness harmless. It kept the defense from finding a rebuttal expert, deposing DRG, and employing other tactics that could have been taken that are not applicable to fact witnesses.

The plaintiff also moved to admit deposition testimony of MM and NM. MM was the former Director of Financial Operations for the Office of the CFO, and served as the plaintiff’s supervisor. NM was a former Chief Management Officer with the Office of the CFO.  Both parties indicated they expect to call both as witnesses, but the plaintiff also sought to introduce some of their depositions as substantive evidence at trial.

The parties didn’t dispute that requirements were satisfied for the depositions of MM and NM; however, the defense argued that the plaintiff didn’t show that use of the deposition testimony was allowed by Rule 32(a)(2)-(8). Conversely, the plaintiff argued that the defense didn’t indicate which subsection of Rule 32(a)(2)-(8) would preclude the use of the designate depositions excerpts.

The plaintiff’s response reversed the proper inquiry under Rule 32(a), Judge Kollar–Kotelly wrote. The rule sets out a framework where deposition designations are inadmissible unless permitted by the rule. It’s a three-part inquiry. First, the party seeking to introduce the deposition designations must show that:

(A) the party against whom the deposition is being used was present or represented at the deposition or had reasonable notice of it; and

(B) that the deposition is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying.

If both conditions are met, the party seeking to use the deposition testimony must demonstrate that use of the deposition is permitted by Rule 32(a)(2)-(4). If it is permitted through one of the sections, the party must also show that its use isn’t barred by the limitations in Rule 32(a)(5)-(8).

Here, Judge Kollar–Kotelly held that the plaintiff’s motion didn’t satisfy the second step because he didn’t indicate that: (i) he intended to use the deposition designations for impeachment or other purposes under the Federal Rules of Evidence; (ii) MM or NM were officers, directors, or managing agents of a party to the suit; or (iii) either witness was unavailable. Without showing how the use of the deposition designations is permitted by the rule, the plaintiff failed to satisfy the third requirement.

The defense motions to exclude the testimony of plaintiff’s experts was granted, and plaintiff’s motion was denied.

By Kurt Mattson, J.D., LLM
Howard v. Gray, — F.R.D. —-, 2013 WL 1499436 (D.D.C. April 14, 2013)