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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NATIONAL RAILROAD PASSENGER CORPORATION V. * RAILWAY EXPRESS, LLC * MEMORANDUM OPINION Pending before the Court is Defendant's Motion to Compel Plaintiff's Expert Disclosures and Written Reports pursuant to FED. R. CIV. P. 26(a)(2)(B). complete. (Paper No. 46). The briefing is For the * * CIVIL NO. WDQ-08-1501

No hearing is necessary.

Local Rule 105.6.

reasons set forth below, the Court grants in part and denies in part the motion to compel. I. Background This is a real property case involving the extent to which plaintiff National Railroad Passenger Corporation ("Amtrak") has rights to the subsurface area in a parcel of land located near Baltimore's Penn Station and beneath a building owned by Railway Express ("R/E"). (Paper No. 1, 1-2). Following extensive

settlement negotiations, discovery resumed in August 2009, with expert witness disclosures and written reports due on October 16, 2009. (Paper No. 44). Amtrak did not provide expert

witness disclosures or written reports by that discovery deadline. (Paper No. 46-1, 2). In responding to a subsequent

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query by R/E in mid-November, Amtrak stated that it did "not intend to call any specially retained experts . . . but potentially would be calling previously named fact/hybrid witnesses as noted in its answer to interrogatories." (Id.).

After complying with Local Rule 104.7, R/E moved to compel Amtrak's compliance with the expert witness disclosure and reporting requirements of Federal Rule of Civil Procedure 26. (Paper No. 46, 3-4). II. Analysis

The parties dispute whether Amtrak must produce expert reports for ten of its employees who may testify at trial. (Paper No. 46-1, 3; Paper No. 47, 3). Under Rule 26, a party

retaining or specially employing a witness to provide expert testimony, or intending to present a witness whose duties as that party's employee regularly involve giving expert testimony, must produce an expert report to the opposing party. P. 26(a)(2)(B).1 FED. R. CIV.

Local Rule 104.10 explicates Rule 26, stating:

Unless otherwise ordered by the Court a party must provide the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) only as to experts retained or specially employed by a party to provide expert testimony. The disclosures need not be provided as to hybrid fact/expert witnesses such as treating physicians... Local Rule 104.10.
                                                            
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This report must contain, among other information, a complete statement of all opinions the witness will express and all information considered by the witness in forming these opinions. FED. R. CIV. P. 26(a)(2)(B).

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R/E argues that Amtrak is attempting to avoid its expert disclosure and discovery obligations by not producing expert reports for its employee witnesses. No. 49, 2). (Paper No. 46-1, 5; Paper

R/E urges this Court to follow the majority

approach and find that parties must provide expert reports from employee witnesses who are expected to give expert testimony. (Paper No. 46-1, 7-8 (citing Day v. Consol. Rail Corp., 1996 WL 257654, at *2 (S.D.N.Y. May 15, 1996), Minn. Mining and Mfg. Co. v. Signtech USA, Ltd., 177 F.R.D. 459, 460 (D. Minn. 1998), KW Plastics v. U.S. Can Co., 199 F.R.D. 687, 689 (M.D. Ala. 2000), Dyson Tech. Ltd. v. Maytag Corp., 241 F.R.D. 247, 249 (D. Del. 2007))). Amtrak responds that it properly disclosed its

employees as hybrid witnesses giving hybrid testimony, which is testimony that does not require production of expert reports.2 (Paper No. 47, 7). The parties also disagree whether R/E is

prejudiced by Amtrak's refusal to produce expert reports from its testifying employees. 6-7). (Paper No. 46-1, 8-10; Paper No. 47,

Amtrak notes that R/E has not deposed any of these

witnesses, while R/E responds that it is entitled to reports before any deposition.
                                                            
Amtrak also suggests that a motion to compel is premature and that a motion to exclude impermissible expert testimony at trial would be more appropriate. (Paper No. 47, 6). However, R/E need not wait to make a motion to exclude improper testimony at trial. FED R. CIV. P. 37(a)(3)(A); Sullivan v. Glock, 175 F.R.D. 497, 503-505 (D. Md. 1997) (discussing the strategic choice counsel must make between moving to compel or exclude where an opposing party makes insufficient Rule 26(a)(2) disclosures).
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(Id.).

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This dispute presents three questions. employees be considered experts?

First, can Amtrak

Second, if Amtrak employees

qualify as experts, can Amtrak employees who do not regularly provide expert testimony at trial be considered "specially retained" and thus subject to the expert report requirement? Third, if Amtrak employees are "specially retained" experts, will they give hybrid testimony that is exempt from the reporting requirement or expert testimony in disguise subject to the expert report requirement? A. The Amtrak Employees May Qualify as Experts. A threshold question is whether the railroad employees can qualify as experts. Expert testimony is testimony based on

scientific, technical, or other specialized knowledge that will assist the trier of fact in reaching a decision on an issue. United States v. Dorsey, 45 F.3d 809, 813 (4th Cir. 1995). specialized nature of railroading and the unique skills and knowledge required for effective railroad operations, have often led courts to classify railroad employees as experts on the basis of their specialized knowledge. Beanland v. Chicago, Rock The

Island, Pac. R.R. Co., 480 F.2d 109, 116 (8th Cir. 1973) ("[C]ompetent expert testimony is generally admissible in cases involving the operations of a railroad which necessarily involve facts peculiar to such railroading"); Bridger v. Union Ry. Co., 355 F.2d 382, 389 (6th Cir. 1966) ("the proper operation of a 4


railroad involves a combination of factors not within the knowledge of the average juryman"); Sehlin v. Chicago, Milwaukee, St. Paul, and Pac. R.R. Co., 686 P.2d 492, 498 (Wash. App. 1984) (acknowledging that "historically railroad workers are given an `expert' status concerning railroad operations" even as that court chose not to do so in that case). It is the trial judge in this matter who will ultimately decide how to classify Amtrak employees and their testimony at trial. However, this Court notes the technical nature of much

of the testimony that Amtrak employees will offer in this case. See, e.g., (Paper No. 47-1, 12) ("Rick Catania is the Assistant Division Engineer for Amtrak's CNS department and would have knowledge regarding inspections, repair and maintenance of the Central Instrument House and other aspects of train signaling and train movement as those issues relate to the Parcels"). This kind of testimony on railroad operations is beyond common knowledge and as such could qualify as expert testimony. Therefore, further analysis as to whether Amtrak employees are "specially retained" and thus subject to the reporting requirement is warranted. B. Amtrak Employees are "Retained" or "Specially Employed" Witnesses to Whom the Expert Report Requirement Generally Applies. Having found that Amtrak employees may qualify as experts, the Court must next examine the reporting requirement of FED. R. 5


CIV. P. 26(a)(2)(B).

Under this Rule, a written report is

required if a witness is either retained or specially employed to provide expert testimony in the case, or one whose duties as the party's employee regularly involve giving expert testimony. Id. In its opposition, Amtrak does not contest - indeed it does not even address - that these 10 Amtrak employees are either "specially employed" or have duties that regularly involve giving expert testimony. Rather, Amtrak acknowledges that an

argument might be made that their testimony is "expert," but that they are at best "hybrid" witnesses who are expressly excused from any report requirement under Local Rule 104. Thus,

Amtrak appears to concede at least for purposes of this motion that these employees meet the definition under FED. R. CIV. P. 2(B) but are excused from a report under Local Rule. In any

event, these employees meet the definition of "specially employed" even if they are not regularly involved in giving expert testimony (as the record is silent on this point). The Fourth Circuit has yet to address when employees whose duties do not regularly involve giving expert testimony can be considered "specially retained" for purposes of Rule 26. this context, a review of other courts' analyses of this question is helpful. 6


In

Some courts strictly interpret Rule 26(a)(2)(B) as to a "subset" of the disclosure requirement of Rule 26(a)(2)(A) that entirely exempts from the reporting requirement employees of a party who do not regularly give expert testimony as part of the normal scope of their employment. See Greenhaw v. City of Cedar

Rapids, 255 F.R.D. 484, 487-88 (N.D. Iowa 2009) (citing, e.g., Navajo Nation v. Norris, 189 F.R.D. 610 (E.D. Wash. 1999); GSI Group, Inc. v. Sukup Mfg. Co., Civ. No. 05-3011, 2007 WL 853959 at *2 (C.D. Ill. Mar. 16, 2007) (collecting authority to support the conclusion that an expert report is required only where an employee is both retained or specially employed as a witness and his duties regularly involve giving expert testimony)). However, the majority of courts take the broader view that whenever an employee of a party gives expert testimony, even if outside the normal scope of his or her employment, the producing party must provide an expert report. Funai Elec. Co. v. Daewoo

Elec. Corp., No. C 04-1830, 2007 WL 108972, at *3 (N.D. Cal. Apr. 11, 2007) ("[A] majority of courts require reports from employee experts who render opinions on matters outside the scope of their employment."); see also Day, 1996 WL 257654 at *2 (criticizing the strict view of Rule 26(a)(2) as "implausible" and holding that a witness whose duties do not regularly involve giving expert testimony must still provide a report when his employer, a party, "retains or specially employs" him to 7


testify); Minn. Mining and Mfg. Co., 177 F.R.D. at 460-61 (following Day in concluding that a broader view of Rule 26(a)(2)'s expert reporting requirement is "entirely consistent with the spirit" of the Rule); KW Plastics, 199 F.R.D. at 689 (following Day and relying on legislative history to conclude that a broad interpretation of Rule 26(a)(2) is consistent with the "point" of the Rule: "to minimize unfair surprise and prejudice resulting from `sketchy and vague' disclosure prior to trial"); Dyson Tech. Ltd., 241 F.R.D. at 249 (same). George

Brent Mickum IV & Luther L. Hajek, Guise, Contrivance, or Artful Dodging?: The Discovery Rules Governing Testifying Employee Experts, 24 REV. LITIG. 301, 332-41 (2005) (commenting that the majority of courts require employee experts who give expert opinions to provide expert reports). Courts broadly

interpreting Rule 26 emphasize that it is inconsistent with the spirit of the rule to exclude a category of expert trial witnesses from having to produce reports. See KW Plastics, 199

F.R.D. at 689 (quoting Day, 1996 WL 257654 at *2) ("The logic of defendant's position would be to create a category of expert trial witness for whom no written disclosure is required

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