Tenth Circuit Sets Low Bar for Fed. R. Civ. P. 26(a)(2)(C) Disclosures for Non-Retained Experts in Truck Collision Case

In Vincent v. Nelson, No.20-8030 (10th Cir. Oct. 27, 2022), in an issue of first impression, the Tenth Circuit holds that a pre-trial disclosure under Fed. R. Civ. P. 26(a)(2)(C) for non-retained experts may be fairly general in form to support their testimony at trial, in contrast to the more rigorous demands for retained experts

“Plaintiff-Appellant Wesley Dale Vincent and Defendant-Appellee Ava Nelson were involved in a collision while working as coal-haul truck drivers at a mine in Campbell County, Wyoming . . . . On the night of October 13, 2013, Ms. Nelson was several hours into her shift when Thunder Basin Coal put Mr. Vincent on the same route. As Ms. Nelson drove her haul truck up and out of the pit, Mr. Vincent drove down into it. When Mr. Vincent saw Ms. Nelson’s truck coming in the opposite direction, he pulled over and parked his truck on the side of the road. In attempting to pass, at approximately 2:30 a.m., Ms. Nelson swiped the sideview mirror of Mr. Vincent’s truck with her own and hit a tail pin that extended from his truck. Mr. Vincent claims to have suffered serious injuries due to this collision.”

“Shortly after the accident, two supervisors—Mike McGinty and Jack Steele— launched an investigation. Based on evidence collected at the accident scene, interviews, data from computers installed in the Mine’s vehicles, and their own observations, Mr. McGinty and Mr. Steele concluded that Ms. Nelson was at fault.” Yet in order to impose liability on his coworker under the Wyoming Workers’ Compensation Act, plaintiff had to establish that the defendant “acted willfully and wantonly when causing the accident.”

A key piece of evidence at trial was an image (the “Aerial Photo”) of the scene three weeks before the accident. Bearing on the “central” issue of “wanton and wilful” was “’[t]he location of the crash. as it related to the width of the road at the site of the collision . . . . [T]he parties disputed whether the collision occurred in ‘the narrows’—a straight stretch of the road where, even by the admission of Ms. Nelson’s witnesses, safe passage would have been extremely challenging—or on a curve leading into a dogleg, where Ms. Nelson maintained there was adequate room to safely pass.” McGinty and Steele -offered as non-retained expert witnesses – testified favorably to the defense, “pointing to the location of the accident on the Aerial Photo” at the curve. Based in part on that testimony, the jury found for the defendant Nelson.

On appeal, one of the issues raised by Vincent was whether Steele and McGinty were permitted to testify about the location of the accident based on the Aerial Photo. “The crux of Mr. Vincent’s argument is that the district court erred by allowing Ms. Nelson’s witnesses to provide testimony that used the Aerial Photo to illustrate the accident’s location, supposedly without Ms. Nelson satisfying the applicable expert-witness disclosure requirements.”

The Tenth Circuit affirms the defense verdict. Regarding the challenged testimony, the panel finds that it was properly admitted as lay testimony under Fed. R. Evid. 701. “Mr. Steele recounted factual details from his investigation at the accident scene—not conclusions based on specialized or technical knowledge . . . . Mr. McGinty’s identification of the accident site on the Aerial Photo stemmed from a combination of ‘personal knowledge’ acquired through firsthand perceptions and ‘a process of reasoning familiar in everyday life’—and, thus, was not the stuff of expert testimony.”

But even if deemed expert testimony, the evidence was still properly admitted. In “Mr. Vincent’s view, . . . the district court erred in permitting Mr. McGinty and Mr. Steele to use the Aerial Photo in their testimony because their disclosures failed to contemplate any such use . . . .  According to Mr. Vincent, Rule 26(a)(2)(C) required Ms. Nelson to ‘file a designation including . . . the assertion that Mr. McGinty was going to stand up and try to confirm’ Mr. Steele’s identification of the accident site on the Aerial Photo.”

The Tenth Circuit holds, though, that Rule 26(a)(2)(C) does not demand that level of precision in the pre-trial disclosure. “In offering Mr. Steele and Mr. McGinty as non-retained experts, Ms. Nelson was required only to put Mr. Vincent on notice as to the ‘subject matter on which [they were] expected to present evidence’ and to provide a ‘summary of the facts and opinions’ to which they would be expected to testify. Fed. R. Civ. P. 26(a)(2)(C). A ‘summary’ is customarily defined as ‘[a]n abridgment’ of a fuller accounting of material. Summary, BLACK’S LAW DICTIONARY (11th ed. 2019). Thus, a Rule 26(a)(2)(C) ‘disclosure is considerably less extensive than the report required by Rule 26(a)(2)(B).’ Fed. R. Civ. P. 26 advisory committee notes to 2010 amendment.”

“And though only a few of our sister circuits appear to have encountered challenges akin to Mr. Vincent’s—in published and unpublished8 decisions—they seem largely to have faulted parties only when they have filed disclosures ‘so generic, unhelpful, and boilerplate [that] they could apply to . . . virtually any case.’ Torrez v. D. Las Vegas, Inc., 773 F. App’x 950, 951 (9th Cir. 2019) (unpublished) (omission in original) (quoting magistrate judge’s order) . . . .”

Thus, “Mr. McGinty’s designation stated, in relevant part, that he would ‘testify about his participation in the post-accident activities conducted by [Thunder Basin Coal]’ and “the operations of the haul trucks in the area where the subject accident occurred.’ . . . . Significantly, Mr. McGinty’s designation provided notice that he may ‘base any opinion on his education, experience and training, and rely on any relevant documents, articles, and exhibits to illustrate or support his testimony.’ . . . Mr. Steele’s designation similarly stated that he would testify as to Thunder Basin Coal’s ‘investigation into the accident” and “about his participation in the . . . investigation of [the accident].’ . . . Furthermore, his designation similarly advised that he may ‘rely on any relevant documents, articles, and exhibits to illustrate or support his testimony.’”

“In short, their trial testimony, in our view, was clearly in line with the summaries of their trial designations. Accordingly, we conclude that the district court did not abuse its discretion in permitting Mr. McGinty and Mr. Steele to use the Aerial Photo to support their testimony about the accident’s location.”

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