Burnham v. Young

Filing 197

ORDER denying 195 Motion for New Trial. Signed by Judge David G Campbell on 10/20/2011.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kristen Burnham, individually and as
representative of the estate of Caroline
Burnham,

No. CV07-8017-PCT-DGC
ORDER

Plaintiff,

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vs.

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United States of America,

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Defendant.
Plaintiff has filed a motion for new trial. Doc. 195. For the reasons that follow,
the motion will be denied.

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Plaintiff again complains that the Court erred in excluding the expert testimony of

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Anselmo Nagera. The Court explained its reasons for excluding his testimony, in detail,

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on July 20, 2009. See Doc. 118 at 8-10. Mr. Nagera was not timely disclosed as an

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initial expert by Plaintiff, and Plaintiff’s subsequent attempt to disclose him as a rebuttal

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expert was inappropriate for reasons explained in the Court’s previous order. Doc. 118.

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The Court’s order was not set aside by the Ninth Circuit on appeal, and other courts have

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agreed with the conclusion. See, e.g., Atmel Corp. v. Information Storage Devices, Inc.,

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189 F.R.D. 410, 416 (N.D. Cal. 1999) (“to now allow Mr. Kern to testify on direct

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examination to matters deliberately ignored in his Rule 26(a)(2)(B) report would simply

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encourage litigants to evade the expert-disclosure rules. It would disrupt the orderly

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process of trial preparation to require a new round of expert reports and a new round of

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expert depositions”); see also Crowley v. Chait, 322 F. Supp. 2d 530, 551 (D. N.J. 2004)

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(an expert’s rebuttal report “is not an opportunity for the correction of any oversights in

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the plaintiff’s case in chief.”).

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Plaintiff’s motion takes issue with factual findings made by the Court after trial.
Such disagreement does not provide a basis for a new trial.
Plaintiff asks the Court to order post-trial mediation.

Given that Defendant

prevailed at trial, the Court sees no basis for such an order.

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IT IS ORDERED that Plaintiff’s motion for a new trial (Doc. 195) is denied.

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Dated this 20th day of October, 2011.

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