_________________________________

Robert A. Canfield, VSB #16901

Canfield Wells, LLP

4124 E. Parham Road

Richmond, VA 23228

(804)673-6600

(804)673-6604

Counsel for Defendant

UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF VIRGINIA

Richmond Division

In Re: )

)

Lewis E. Wilkerson, Jr., )

)

Debtor )

)

ROBERT E. DIXON, ) Case Number: 20-34576-KLP

Individually and Derivatively on behalf of )

D.E.R. LLC ) Ch. 11

)

Plaintiff )

v. )

) Adversary Proceeding

LEWIS E. WILKERSON, JR. )

) No. 21-03008 - KLP

Defendant. )

__________________________________________)

MOTION IN LIMINE TO EXCLUDE PLAINTIFF’S REBUTTAL EXPERT DISCLOSURE

REPORT AND TESTIMONY FROM PLAINTIFF’S REBUTTAL EXPERT 

RELYING ON THE DISCLOSURE REPORT

Comes now the defendant, Lewis Wilkerson (“Defendant”), by counsel, and for his Motion In 

Limine to Exclude Plaintiff’s Rebuttal Expert Disclosure Report and Testimony from Plaintiff’s 

Rebuttal Expert Relying on the Disclosure Report respectfully represents as follows:

Tanya Futtrell, CPA was hired by Plaintiff as a rebuttal expert. As such, Ms. Futtrell prepared 

an expert disclosure under B.R.C.P. 7026 and F.R.C.P. 26(a)(2)(B) that was filed as Document 12 (the 

“Report”).

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ARGUMENT

I. The Report does not conform to B.R.C.P. 7026 and F.R.C.P. 26(a)(2)(B). 

F.R.C.P. Rule 26 requires a party to provide opposing counsel a written report prepared by an 

expert witness who may testify at trial. Bresler v. Wilmington Trust Co., 855 F.3d 178, 189 (4th Cir. 

2017). The Report must contain "a complete statement of all opinions the [expert] 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." Id. (quoting Fed. R. Civ. P. 

26(a)(2)(B)(i)-(iii)). Th underlying purpose of F.R.C.P. 26 is to allow parties “to adequately prepare 

their cases for trial and to avoid unfair surprise.” Id. (quoting Russell v. Absolute Collection Servs., 

Inc., 763 F.3d 385, 396 (4th Cir. 2014)). "Accordingly, a party who fails to comply with the expert 

witness disclosure rules is prohibited from 'us[ing] that information or witness to supply evidence ... at 

a trial, unless the failure was substantially justified or is harmless.' Fed. R. Civ. P. 37(c)(1)." Id. 

The Report is conclusory and does not fulfill the requirements of B.R.C.P. 7026; F.R.C.P. 

26(a)(2)(B)(i); F.R.C.P. 26(a)(2)(B)(ii) or F.R.C.P. 26(a)(2)(B)(iii). The Report does not contain the 

basis and reason for Ms. Futrell’s opinions, only conclusions. The Report does not contain the Exhibits 

that will be used to summarize or support Ms. Futrell’s conclusory opinions. Documents and evidence 

containing the facts and data considered by Ms. Futrell when preparing the Report and/or formulating 

her conclusory opinions were not proposed as Exhibits.

Copies of Plaintiff’s Proposed Exhibits were made available to Defendant’s counsel one (1) 

day before objections were due. It was only then determined the Report Exhibits were missing,

prejudicing Counsel’s ability to prepare for a hearing on this matter. 

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The Report is substantially and materially incomplete, was not supplemented, does not include 

exhibits, and does not adequately explain the basis of the rebuttal expert’s opinion and should be 

excluded.

II. Plaintiff’s rebuttal expert witness should be precluded from offering testimony 

based on the Report. 

Because the Report is insufficient and should be excluded, Ms. Futrell’s testimony derived 

from or referencing the Report should also be excluded. 

CONCLUSION

Defendant requests the Court exclude the Report and exclude Testimony based on or relying on

the Report.

By: /s/ Robert A. Canfield

 Counsel

Robert A. Canfield, VSB #16901

Canfield Wells, LLP

4124 E. Parham Road

Richmond, VA 23228

(804)673-6600

(804)673-6604

Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of October, 2021, a copy of the foregoing Motion in Limine 

to Exclude Plaintiff’s Rebuttal Expert Disclosure Report and Testimony From Plaintiff’s Rebuttal 

Expert Relying on the Disclosure Report was hand delivered to: W. R. Baldwin, III, Esq., Meyer 

Baldwin, Long & Moore, LLP, 5600 Grove Avenue, Richmond, VA 23226.

/s/ Robert A. Canfield

 Robert A. Canfield

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