Holcombe v. United States

516 F.Supp.3d 660

Joe HOLCOMBE et al., Plaintiffs,

v.UNITED STATES of America, Defendant.

Civil Action No. SA-18-CV-555-XR

United States District Court, W.D. Texas, San Antonio Division.

Signed February 2, 2021

April A. Strahan, Pro Hac Vice, Robert E. Ammons, The Ammons Law Firm, L.L.P., Mark W. Collmer, Collmer Law Firm, Houston, TX, Daniel D. Barks, Speiser Krause, P.C., Atlanta, GA, for Plaintiffs.

Austin L. Furman, Daniel P. Chung, James G. Touhey, Jr., Jocelyn Krieger, Paul D. Stern, United States Department of Justice, Stephen E. Handler, Torts Branch, Civil Division, Washington, DC, Clayton R. Diedrichs, James Edward Dingivan, John F. Paniszczyn, Kristin K. Bloodworth, Jacquelyn Michelle Christilles, United States Attorney's Office, James F. Gilligan, Kristy Karen Callahan, Assistant U.S. Attorney, San Antonio, TX, for Defendant.

ORDER

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

On this date, the Court considered the Government's motion to exclude the testimony of Plaintiffs’ retained expert, Dr. Daniel Webster (ECF No. 261), Plaintiffs’ response (ECF No. 274), and the Government's reply (ECF No. 286). After careful consideration, the Court issues the following order.

BACKGROUND

These consolidated cases stem from the mass shooting at the First Baptist Church in Sutherland Springs, Texas on November 5, 2017. The shooter, Devin Patrick Kelley ("Kelley"), entered the church and opened fire, killing 26 people and wounding 22 more. After fleeing the scene, Kelley later died from a self-inflicted gunshot wound.

Kelley committed the shooting using firearms he purchased from federal firearms licensees ("FFLs") after clearing the required background check through the National Instant Criminal Background Check System ("NICS") administered by the FBI. Kelley should not have passed the NICS background check, however, because he had been convicted of a crime that disqualified him from purchasing firearms.

While serving in the U.S. Air Force ("USAF"), Kelley pleaded guilty to a crime of domestic violence for assaulting his then-wife, Tessa Kelley, and stepson during General Court-Martial proceedings in November 2012. Despite U.S. Department of Defense ("DoD") and USAF instructions and policies that required the USAF to collect and submit Kelley's fingerprints and final disposition report of conviction to the FBI, the USAF failed to do so. ECF No. 149. Consequently, Kelley's fingerprints and conviction were not in the FBI's NICS at any time before the shooting on November 5, 2017. Id.

Plaintiffs are survivors of the shooting and relatives of those injured or killed. They seek recovery against Defendant United States ("the Government") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 – 2680, for its negligent failure to collect, handle, and report required information about Kelley that would have prevented him from purchasing the firearms used in the shooting. Plaintiffs bring claims for negligent undertaking and negligent supervision.¹

To establish a claim of negligent undertaking in Texas, a plaintiff must show that: (1) the defendant undertook to perform services that it should have known were necessary for the protection of others but failed to exercise reasonable care in that undertaking; (2) the defendant's negligent performance of those services increased the risk of harm; and (3) the defendant's failure to exercise reasonable care caused physical harm. Torrington v. Stutzman , 46 S.W.3d 829, 838–39 (Tex. 2000) (citing Restatement (Second) of Torts § 323 (1965) ). The Court granted Plaintiffs’ motion for summary judgment with respect to the first element, holding that the Government failed to exercise reasonable care in its undertaking to operate a national background check system and to collect and submit Kelley's fingerprints and conviction to the FBI. See ECF No. 318 at 8–20. However, the Court concluded that there were genuine issues of material fact as to whether the Government's negligence increased the risk of harm and proximately caused Plaintiffs’ injuries.² See id. at 21–37.

Plaintiffs have designated Daniel Webster as a testifying expert on these issues. ECF No. 206 at 9–13. Dr. Webster relies on epidemiological research and his professional experience to support his general conclusions that (1) access to firearms by individuals with a history of domestic violence and suicidality greatly increases the risk that those individuals will commit serious acts of violence, including homicide and fatal mass shootings, and (2) denying firearms purchases to applicants with a history of violence, other criminal acts, or threatening behaviors resulting from mental illness reduces the risk that those applicants will commit acts of violence. ECF No. 161-1 at 5. With respect to Kelley, Dr. Webster specifically concludes that a proper background check would likely have deterred him from committing the shooting and that it was or should have been foreseeable to the Government that Kelley would commit an act of gun violence. Id. at 15–16.

The Government seeks to exclude Dr. Webster's report and testimony as unreliable under Rule 702 of the Federal Rules of Evidence and to strike a declaration provided by Dr. Webster in support of Plaintiffs’ response to the Government's Daubert motion. See ECF No. 261 at 1; ECF No. 286 at 18. Because the underlying Daubert motion depends on the extent and nature of Dr. Webster's opinions, the Court will first decide whether Dr. Webster's declaration can be considered and then proceed to the question of whether his analysis is admissible under Rule 702.

DISCUSSION

I. Motion to Strike Dr. Webster's Declaration

A. Legal Standard

The Federal Rules of Civil Procedure state that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), 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. 37(c)(1) (emphasis added). Rule 26(a) requires testifying experts to provide an expert report that includes "a complete statement of all opinions the witness will express and the basis and reasons for them; the facts or data considered by the witness in forming them; [and] any exhibits that will be used to summarize or support them," among other things. FED. R. CIV. P. 26(a)(2)(B). The Federal Rules also contemplate that opposing experts will present rebuttal evidence, see FED. R. CIV. P. 26(a)(2)(D), and that the original expert may supplement his testimony, see FED. R. CIV. P. 26(a)(2)(E).

Federal Rule of Civil Procedure 26(e) requires parties to supplement previous disclosures if they learn that such disclosures are incorrect or incomplete. This duty extends to information included in expert reports and given during expert depositions. FED. R. CIV. P. 26(e)(2). Parties must make these supplemental expert disclosures by the time Rule 26(a)(3) pretrial disclosures are due. Id. However, supplemental "disclosures are not intended to provide an extension of the deadline by which a party must deliver the lion's share of its expert information." Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc. , 73 F.3d 546, 571 (5th Cir. 1996).

A district court has broad discretion in deciding whether to strike expert testimony as a sanction for a violation of Rule 37. Sierra Club , 73 F.3d at 572. In exercising this discretion, courts look to four factors: "(1) the importance of the witnesses’ testimony; (2) the prejudice to the opposing party of allowing the witnesses to testify; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation, if any, for the party's failure to comply with the discovery order." Id.

Courts routinely reject untimely "supplemental" expert testimony where the opinions are based upon information available prior to the deadline for expert disclosures and the disclosure "departs from [or] expands upon [the] original report in [any] material respects." Sobrino-Barrera v. Anderson Shipping Co. , No. H-09-3642, 2011 WL 5245396, at *3 (S.D. Tex. Oct. 24, 2011). Thus, Dr. Webster's declaration is subject to being stricken to the extent that it inserts new opinions that are not mere elaboration or supplementation. See In re Complaint of C.F. Bean L.L.C. , 841 F.3d 365, 371 (5th Cir. 2016) ; Pratt v. Landings at Barksdale , No. CIV.A. 09-1734, 2013 WL 5375951, at *2 (W.D. La. Sept. 24, 2013) (striking a declaration after finding that it "contains new opinions, not mere logical extensions, that go beyond those previously presented" and that "appear to be based upon information available prior to the deadline for service of initial expert reports."). Further, as indicated by the plain language of Rule 37, the testimony will only be stricken where it is not "substantially justified or harmless," and where a balance of the Sierra Club factors indicates that it should be stricken.

B. Analysis

In support of their response in opposition to the Government's motion to strike Dr. Webster's testimony, Plaintiffs included a declaration from Dr. Webster addressing the Government's objections to the reliability of the opinions in his expert report and deposition testimony. See ECF No. 274-1. The Government moves to strike the declaration as an untimely attempt to supplement his expert report, arguing that the declaration "seeks to offer new opinions, or at a minimum new bases or reasons for his opinions." ECF No. 286 at 18. Specifically, the Government notes that Dr. Webster's declaration includes ten studies not cited in his original report and includes new opinions on Kelley's preference for reliable firearms from a trusted dealer and whether Kelley would have tried to access a firearm through a straw purchaser. Id.

The Government correctly notes that Plaintiffs have offered no explanation for their untimely disclosure of the information in Dr. Webster's declaration. ECF No....