United States District Court, W.D. Virginia, Abingdon Division
JOHN DOE, AN INFANT, BY HIS NEXT FRIEND, REELIA WATSON, Plaintiff,
RUSSELL COUNTY SCHOOL BOARD D/B/A RUSSELL COUNTY PUBLIC SCHOOLS, ET AL., Defendants.
H. Beck and Douglas E. Fierberg, The Fierberg National Law
Group, PLLC, Traverse City, Michigan, and Paul R. Thomson,
III, The Thomson Law Firm, PLLC, Roanoke, Virginia, for
Christopher S. Dadak and Jim H. Guynn, Jr., Guynn &
Waddell, P.C., Salem, Virginia, and Mary Katherine Patton,
Chafin Law Firm P.C., Lebanon, Virginia, for Defendant
Russell County School Board d/b/a Russell County Public
OPINION AND ORDER
P. Jones United States District Judge
action under Title IX and 42 U.S.C. § 1983 against a
local school board (“School Board”) as a result
of molestation of a young student by a school custodian, the
plaintiff John Doe has filed a motion in limine to exclude
new disclosures of two experts retained to testify at trial
for the School Board. Doe also requests that I order the
School Board to pay reasonable expenses associated with
filing the motion to exclude. The motion has been fully
briefed and orally argued and is ripe for decision.
motion, Doe argues that any new testimony by either expert -
Elisabeth Counselman-Carpenter, Ph.D., and Alex Redcay, Ph.D.
- should be excluded from trial because the new disclosures
of this testimony are untimely and not truly supplemental.
For the reasons that follow, I will grant in part and deny in
part Doe's motion.
take up each expert's new disclosure separately.
Counselman-Carpenter's original expert report was
disclosed to Doe on October 20, 2017, a deadline date
informally stipulated to by the parties, although some months
after the expert disclosure date set forth in the court's
Scheduling Order entered March 20, 2017. Doe's counsel
deposed Dr. Counselman-Carpenter based on this report on
November 27, 2017. On December 12, 2017, the School Board
provided the new report in question.
Dr. Counselman-Carpenter's original and new reports set
forth her opinions on Doe's projected mental health
outcome and future treatment needs. Her original report
concluded that “solely based on the symptoms Dr.
Epstein [plaintiff's expert] reports, the diagnosis of
[“Posttraumatic Stress Disorder] is likely accurate,
but remains inconclusive.” Mot. Lim. Exclude Expert
Reports Ex. 8, at 2-3, ECF No. 92-8. Dr. Counselman-Carpenter
similarly testified in this regard during her deposition:
A. It is my opinion that Dr. Epstein's diagnosis of PTSD
Q. Okay. So you have no opinion as to whether Doe is
suffering from PTSD or not?
A. My opinion is that Dr. Epstein's opinion does not
provide enough information for that diagnosis to stand.
Q. So you have no opinion as to whether Doe has PTSD or not?
A. I don't have enough information to make - - to share
an opinion either way.
Q. Okay. Your report says that the diagnosis of PTSD is
likely accurate. So are you now - - are you now trashing your
Q. So you still agree that the diagnosis of PTSD is likely