Psychology Expert’s Failure to Disclose Does Not Warrant Exclusion
Posted on July 7, 2025 by Expert Witness Profiler
Kiel Green fell to the ground after hitting the back of his elbow on a pallet of metal shelving while returning from a wooden wagon display containing beef jerky. At the time Green entered Atwood’s, Defendant was in the process of conducting a “reset” and various departments and merchandise were in the process of being rearranged. As part of the reset, a pallet of metal shelving had temporarily been placed near the beef jerky.
Kiel and Melissa Green filed this action against Atwood Distributing, L.P. seeking to recover for negligence and loss of consortium arising from this incident, and requesting both compensatory and punitive damages.
Plaintiffs filed a motion to strike Defendant’s expert witnesses Elizabeth Speck-Kern, Ph.D. and Irmo Marini, Ph.D.
Plaintiffs argued that the Court should strike Speck-Kern as an expert witness because: (a) Speck-Kern did not send the raw data from her Rule 35 examination of Green to Green’s neuropsychologist until the day Daubert motions were due, violating Rule 26(a)(2)(B)(ii); and (b) Defendant failed to disclose a deposition given by Speck-Kern in the last four years, violating Rule 26(a)(2)(B)(v) while Marini has failed to disclose a list of all other cases in which he has been deposed or testified in the last four years under Rule 26.
Psychology Expert Witness
Elizabeth Speck-Kern is the Founder and Partner of Arkansas Neuropsychology Associates, P.A. She performs neuropsychological, psychological, and forensic examinations on children and adults. She obtained her Ph.D. in School Psychology from the University of South Carolina.
Vocational Evaluation & Rehabilitation Expert Witness
Irmo D. Marini obtained his PhD in rehabilitation from Auburn University and a master’s degree in clinical psychology from Lakehead University in Thunder Bay, Ontario, Canada. He is a 2009 recipient of the National Council on Rehabilitation Education’s Distinguished Career Award in rehabilitation education, and 2010 recipient of the American Rehabilitation Counseling Association’s James F. Garrett Distinguished Career Award in rehabilitation research.
Discussion by the Court
Elizabeth Speck-Kern
In response, Defendant filed an affidavit by Speck-Kern explaining these two lapses. The affidavit sets forth that Speck-Kern’s failure to timely transfer the raw data to Green’s neuropsychologist was the result of a series of increasingly unfortunate events.
Specifically, Plaintiffs’ counsel requested the raw data from defense counsel on February 7, the day after the Rule 35 examination, and defense counsel forwarded that request to Speck-Kern three days later. At that point, the raw data had not yet been compiled, and, unfortunately, Speck-Kern overlooked the emailed attachment that contained Plaintiffs’ request. As a result, the request went unanswered.
Subsequently, two months later—and approximately six weeks after the full disclosure deadline—on April 11, Plaintiffs’ counsel contacted defense counsel to explain that Green’s neuropsychologist never received the raw data and to renew his request. Defense counsel forwarded this second request to Speck-Kern on April 14. At that time, Speck-Kern and her assistant (the only other person in her practice) were dealing with multiple familial illnesses and deaths. Consequently, on May 5—the first day Speck-Kern and her assistant were both back in the office and the day Daubert motions were due—Speck-Kern forwarded the raw data to Green’s neuropsychologist.
As for Speck-Kern’s failure to disclose a prior deposition, she explained in her affidavit that, at the time she was retained and disclosed in this case, she did not recall any testimony she had given in the last four years. It was only when she reviewed Plaintiffs’ motion to strike and saw the attached portions of the testimony that she recalled the deposition.
Irmo Marini
Plaintiffs filed a motion to strike Marini as an expert on the basis that Marini has failed to disclose a list of all other cases in which he has been deposed or testified in the last four years under Rule 26.
However, Marini provided a list of all cases in which he has been retained—approximately seventeen pages long, mostly single spaced—in which he includes his client’s name, the type of opinion given, the attorney’s name, and the location.
While Plaintiffs argued that it did not denote which cases he offered testimony in, Defendant pointed out that Marini includes a “d” or “t” at the end of the client information for each case in which he testified.
Plaintiffs cited various out-of-circuit courts for the proposition that Rule 26(a)(2)(B)(v) requires the parties’ names, case number, court, and whether the testimony was by trial or deposition. There is no binding precedent on this matter, and “courts in this Circuit have not necessarily required such rigorous case data from experts, although this Court agreed that the sort of information required is largely ‘a matter of common sense.'”
Held
The Court denied Plaintiffs’ motions to strike the opinions of Elizabeth Speck-Kern and Irmo Marini. While Plaintiffs may seek leave to supplement their Daubert motion as to Speck-Kern—provided they file such motion within ten (10) days—the Court ordered Defendant to supplement Marini’s disclosures within fourteen (14) days.
Key Takeaway:
“When a party fails to provide information” under Rule 26(a), “the district court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case.” However, the exclusion of evidence is a harsh penalty and should be used sparingly.
Case Details:
| Case Caption: | Green Et Al V. Atwood Distributing, L.P. |
| Docket Number: | 5:24cv5040 |
| Court Name: | United States District Court, Arkansas Western |
| Order Date: | July 03, 2025 |
