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In re Ohio Execution Protocol Litigation

United States District Court, S.D. Ohio, Eastern Division, Columbus

August 27, 2019

IN RE OHIO EXECUTION PROTOCOL LITIGATION This document relates to Plaintiffs Cleveland Jackson, James Hanna, Kareem Jackson, and Melvin Bonnell

          Edmund A. Sargus, Jr. Chief Judge

          DECISION AND ORDER GRANTING MOTION TO STRIKE EXPERT REPORT OF DANIEL BUFFINGTON AND DENYING AS MOOT MOTION IN LIMINE TO EXCLUDE TESTIMONY OF BUFFINGTON

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This case is before the Court on Plaintiff Cleveland Jackson's Motion to Strike the Expert Report and Testimony of Daniel Buffington, Pharm.D, an expert witness for Defendants (ECF No. 2319). Defendants have filed a memorandum contra (ECF No. 2344), and Jackson has filed a reply in support (ECF No. 2352). Additionally, Jackson filed a Motion in Limine to Exclude Testimony of Buffington (“Motion to Exclude, ” ECF No. 2320), to which Defendants filed a memorandum contra after receiving leave to do so out-of-time (ECF No. 2357).[1] For the reasons set forth below, Jackson's Motion to Strike is GRANTED and the Motion to Exclude is DENIED AS MOOT.

         Cleveland Jackson's instant Motions were filed before the Court ordered the preliminary injunction hearings for all the above Plaintiffs consolidated. This Decision applies to the hearings for all four Plaintiffs.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Much of the relevant factual background and procedural history with respect to Buffington's involvement with the captioned matter and its predecessor, Cooey v. Kasich, 2:04-cv-1156, is set forth in the Court's previous Decision and Order Granting Motion to Strike Expert Report and Testimony of Daniel Buffington related to the proffered testimony of Buffington in the Warren Henness case (“Buffington Order, ” ECF No. 2068, PageID 103048-53), which the Court incorporates by reference. Therein, the Court noted that Buffington had failed, on at least five occasions between December 21, 2016, and November 21, 2018, to comply with Fed.R.Civ.P. 26(a)(2)(B)(v), which requires him to provide “a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition[.]” Id. at PageID 103053. The Court noted that:

The list described in subpart (v) must, above all else, “be useful” to the Court and the opposing party, and “[c]ourts have held that, . . . this listing must include, at a minimum, the courts in which the testimony occurred, the names of the parties and the case numbers, and must indicate whether the testimony was given at deposition or at trial.

Id. at PageID 103053-54 (emphasis in original), quoting Ater v. Follrod, No. 2:00-cv-934, 2004 WL 6042439, * 1 (S.D. Ohio Nov. 10, 2004) (Holschuh, J.). Finding that the failure to comply was neither harmless nor substantially justified, id. at PageID 103056-58, the Court struck Buffington's expert report filed on behalf of Defendants, and barred him from testifying at the evidentiary hearing on the Motion for Preliminary Injunction of Jackson's co-plaintiff Warren Keith Henness. Id. . at PageID 103058-60.

         On July 24, 2019, Defendants filed their witness list for the scheduled evidentiary hearing on Jackson's motion for preliminary injunction, and listed Buffington as an expert witness (ECF No. 2293, PageID 111795). That same day, Buffington filed his expert declaration and curriculum vitae (“Buffington Report, ” ECF No. 2292). At the end of the Report, Buffington included “Prior Forensic Review and Testimony 2015 to 2019, ” a list that included: the date in which he testified at a deposition or trial, the case name and number, court jurisdiction, state, county, and whether he testified on behalf of the plaintiff or defense. Id. at PageID 111445-47.

         On August 7, 2019, Jackson[2] filed the Motion to Strike. Therein, he claims that Buffington's list, while appearing to comply with Rule 26(a)(2)(B)(v) and Ater, is incomplete (ECF No. 2319, PageID 112781-82). Noting that Rule 26(a)(2)(B)(v) requires the list to include all other cases,

Jackson's counsel conducted a basic Westlaw search and discovered the following examples of cases involving Dr. Buffington's expert testimony that were not identified on his latest list:
Covington v. State, 228 So.3d 49 (Fla. 2017) (Ex. 2);
Bratt v. Genovese, No. 8:13-CV-3210-T-36AEP, 2018 WL 5111910 (M.D. Fla. Oct. 19, 2018) (Ex. 3);
United States v. Williams, No. 13-00236-01, 2017 WL 1856081 (W.D. Mo. 2017) (Ex. 4);
Hall v. State, 212 So.3d 1001 (Fla. 2017) (Ex. 5);
• State v. Bright,200 So.3d 710 (Fla. 2016) ...

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