Cooke et al v. Colorado City, Town of et al

Filing 317

ORDER the Hildale Defendants' Motion to Strike the Testimony of Sally Alcott, M.D. 284 and the Town of Colorado City's Joinder thereto 304 are granted (please see attached order for complete information). Signed by Judge James A Teilborg on 2/13/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ronald Cooke and Jinjer Cooke, husband
and wife,

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ORDER

Plaintiffs,

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No. CV 10-08105-PCT-JAT

The State of Arizona ex rel. Thomas C.
Horne, the Attorney General; and the Civil
Rights Division of the Arizona Department
of Law,

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Plaintiff-Intervenor,

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v.
Town of Colorado City, Arizona; City of
Hildale, Utah, Hildale-Colorado City
Utilities (Hildale-Colorado City Power,
Water, Sewer and Gas Department and
Twin City Water Authority); Twin City
Power,
Defendants.

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Once again, this Court is required to determine the adequacy of a party’s expert
disclosures under Rule 26(a)(2)(C).

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Defendants move to strike the testimony of Plaintiffs’ and Plaintiff-Intervenor’s

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witness, Sally Alcott, M.D. Defendants argue that Dr. Alcott’s testimony should be

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stricken because Plaintiffs’ disclosures violated Federal Rule of Civil Procedure

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26(a)(2)(C). Specifically, Defendants argue that, in the absence of an expert report from

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a treating physician, Plaintiffs and Plaintiff-Intervenor were required to disclose the

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subject matter on which Dr. Alcott is expected to present evidence under Federal Rules of

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Evidence 702, 703, or 705 and a summary of the facts and opinions to which Dr. Alcott is

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expected to testify. Defendants argue that Plaintiffs and Plaintiff-Intervenor failed to

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disclose any of this information in the proper format as required by Rule 26(a)(2)(C).

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In response, Plaintiffs and Plaintiff-Intervenor argue that they adequately disclosed

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Dr. Alcott’s facts and opinions pursuant to Federal Rule of Civil Procedure 26(a)(2)(C)

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In the alternative, Plaintiffs and Plaintiff-Intervenor argue that any failure to strictly

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follow Rule 26(a)(2)(C) is harmless or substantially justified because Defendants were in

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possession of all of the information as to which Dr. Alcott intends to testify well before

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the discovery cut-off. Plaintiffs and Plaintiff-Intervenor further argue that, because

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Defendants fail to specifically state which information contained in Dr. Alcott’s proposed

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testimony was a surprise to them, any claim of prejudice is illusory.

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I.

BACKGROUND

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Plaintiffs and Plaintiff-Intervenor argue that certain facts and disclosures reveal

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that the requirements of Federal Rule of Civil Procedure 26(a)(2)(C) were met and/or that

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the failure to follow such requirements was substantially justified or harmless.

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On December 13, 2010, Plaintiffs Ronald and Jinjer Cooke served their Initial

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Disclosure Statement on Defendants. The Initial Disclosure Statement contained the

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following information regarding the testimony of Dr. Alcott: “Dr. Alcott is Ronald

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Cooke’s treating physician and rehabilitation doctor. She may testify concerning her

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treatment of Ronald Cooke and his physical and mental disabilities.” (Doc. 288-1,

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Exhibit 2).

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Likewise, on December 13, 2010, Plaintiff-Intervenor State of Arizona served its

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Initial Disclosure Statement on Defendants. The Initial Disclosure Statement contained

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the following information regarding the testimony of Dr. Alcott:

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Dr. Alcott is Ronald Cooke’s medical doctor and has been
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treating him since he was critically injured when struck by a
truck on a construction job in 2005. It is expected that Dr.
Alcott has information in support of Plaintiff’s Joint
Amended Complaint, including but not limited to: Ronald
Cooke’s disabilities and related limitations resulting from the
2005 accident; Ronald Cooke’s disability-related housing
needs; Ronald Cooke’s need due to his disabilities for reliable
culinary water, electricity and sewer service to enjoy equal
opportunity to use and enjoy housing in Colorado City.

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(Doc. 294-1 at 4-5). To that Initial Disclosure Statement, Plaintiff-Intervenor attached

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Plaintiff-Intervenor’s Final Investigative Report, which contains a nine paragraph

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summary of a recorded interview of Dr. Alcott, taken under oath, in which Dr. Alcott

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explains Ronald Cooke’s disabilities, his need for a wheelchair accessible living space,

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and his special needs for electricity and water.

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On February 14, 2011, Plaintiff-Intervenor served a Response to Colorado City’s

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First Request for Production, which included an audio recording of an October 8, 2009

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interview of Dr. Alcott.

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On February 25, 2011, the Cooke Plaintiffs served a Response to Colorado City’s
First Request for Production, which included some of Dr. Alcott’s medical records.
By June 13, 2011, all of Dr. Alcott’s medical records up to June 13, 2011 were
disclosed in response to Colorado City’s subpoena.

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On November 10, 2011, the Cooke Plaintiffs and Plaintiff-Intervenor served

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Plaintiffs/Plaintiff-Intervenor’s Joint Expert Disclosure and Expert Report on Defendants.

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This Joint Expert Disclosure lists several medical witnesses and contains the following

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summary of those witnesses’ testimony:

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The medical witnesses listed above will testify concerning
their treatment and diagnoses of Ronald Cooke from the date
they began treatment through the date of trial. They will
testify consistently with their medical records, all of which
have been provided to Defendants . . . . The doctors will
testify at trial concerning the medical condition of Plaintiff
Ronald Cooke, their diagnoses, the physical limitations on
Mr. Cooke, the facts establishing and the extent of his
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disabilities, and his needs for electricity and clean water, his
need for accessible housing, including an accessible shower,
and the limitations on his physical activity due to his
disabilities. They will also testify as to the effects of stress,
cold, and infection on his disability.
(Doc. 288, Exhibit 1 at 3).

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On November 11, 2011, all expert disclosures were due pursuant to the Court’s

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Rule 16 Scheduling Order (Doc. 34). On December 16, 2011, all responsive expert

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disclosures were due pursuant to the Court’s Rule 16 Scheduling Order (Doc. 34). On

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January 13, 2012, all rebuttal expert disclosures were due pursuant to the Court’s Rule 16

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Scheduling Order (Doc. 34). On January 19, 2012, the Court granted a Stipulation to

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extend the discovery cut-off to May 10, 2012 and the dispositive motion deadline to June

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15, 2012 (Doc. 185).

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On April 26, 2012, Dr. Alcott’s deposition was taken. During the deposition,

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Defendants asked Dr. Alcott questions about the interview that was disclosed on

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February 14, 2011 and her medical records.

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May 10, 2012 was the discovery cut-off set in the Court’s Order granting the
Stipulation to extend the discovery cut-off deadline. (Doc. 185).

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On May 31, 2012, Defendants filed a Motion to Amend/Correct Scheduling

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Order. (Doc. 260). In that Motion, Defendants argued that the Court should amend the

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Scheduling Order to allow the disclosure of Defendants’ expert, Dr. Jayne Clark.

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Specifically, Defendants argued that Plaintiffs and Plaintiff-Intervenor did not disclose

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the full opinions of Dr. Alcott by November 11, 2011 and, thus, Defendants could not

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meet their responsive witness disclosure deadline. The Court denied the Motion for

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being a discovery dispute filed without leave of court, as required by the Rule 16

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Scheduling Order. (Doc. 262). June 15, 2012 was the deadline for the Parties to file

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dispositive motions.

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On June 15, 2012, Plaintiffs and Plaintiff-Intervenor filed Motions for Summary
Judgment (Doc. 266; Doc. 269).
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Thereafter, on June 27, 2012, Defendants requested that the Court set a telephonic

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discovery dispute regarding the issues detailed in their May 31, 2012 Motion to Amend.

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(Doc. 271). On July 10, 2012, the Court held a discovery dispute and denied Defendants’

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request to amend the Scheduling Order as untimely.1

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On July 27, 2012, Defendants filed the currently pending Motion to Strike the
testimony of Dr. Alcott.

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II.

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Federal Rule of Civil Procedure 26(a) provides, in relevant part,

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2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by
Rule 26(a)(1), a party must disclose to the other parties the
identity of any witness it may use at trial to present evidence
under Federal Rule of Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless
otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report--prepared and
signed by the witness--if the witness is one retained or
specially employed to provide expert testimony in the case or

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LEGAL STANDARD

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In its November 29, 2010 Rule 16 Scheduling Order, the Court included the
following warning to the Parties:
As set forth in the Order Setting Rule 16 Scheduling
Conference, the Court will not entertain discovery disputes
after the close of discovery barring extraordinary
circumstances. Therefore, the parties shall complete all
discovery by the deadline set forth in this Order (complete
being defined as including the time to propound discovery,
the time to answer all propounded discovery, the time for the
Court to resolve all discovery disputes, and the time to
complete any final discovery necessitated by the Court’s
ruling on any discovery disputes). Thus, “last minute” or
“eleventh hour” discovery which results in insufficient time
to undertake additional discovery and which requires an
extension of the discovery deadline will be met with disfavor,
and may result in denial of an extension, exclusion of
evidence, or the imposition of other sanctions.
(Doc. 34 at 3 n. 3) (emphasis in original).
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one whose duties as the party’s employee regularly involve
giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
them;
(iii) any exhibits that will be used to summarize or support
them;
(iv) the witness's qualifications, including a list of all
publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
deposition; and
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
(C) Witnesses Who Do Not Provide a Written Report. Unless
otherwise stipulated or ordered by the court, if the witness is
not required to provide a written report, this disclosure must
state:
(i) the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or
705; and
(ii) a summary of the facts and opinions to which the witness
is expected to testify.

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Fed. R. Civ. P. 26(a)(2)(A)-(C) (emphasis in original).

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“If 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 trial, unless the failure was substantially justified or
harmless.” Fed. R. Civ. P. 37(c)(1); see Goodman v. Staples the Office Superstore, LLC,
644 F.3d 817, 826 (9th Cir. 2011). If the Court finds that a party did violate Federal Rule
of Civil Procedure 26(a), it is that party’s burden to show that the violation is
substantially justified or harmless. See Yeti by Molly, Ltd. v. Decker Outdoor Corp., 259
F.3d 1101, 1107 (9th Cir. 2001).
III.

ANALYSIS

There is no question that the Cooke Plaintiffs and Plaintiff-Intervenor failed to

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meet the requirements of Federal Rule of Civil Procedure 26(a)(2)(C). At no time in their

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disclosures did Plaintiffs or Plaintiff-Intervenor attempt to state the facts and opinions to

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which Dr. Alcott was expected to testify. For example, in the November 10, 2011 expert

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disclosure, Plaintiffs state that each medical witness will testify that

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concerning the medical condition of Plaintiff Ronald Cooke,
their diagnoses, the physical limitations on Mr. Cooke, the
facts establishing and the extent of his disabilities, and his
needs for electricity and clean water, his need for accessible
housing, including an accessible shower, and the limitations
on his physical activity due to his disabilities.

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Basically, this disclosure advises the reader that the witness will have opinions in

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certain areas, but fails to state what the opinions are, and the factual basis for those

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opinions. For instance, this disclosure could mean that the “medical witnesses” listed

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would testify that Mr. Cooke does need electricity or clean water, does need accessible

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housing, and does have limitations on his physical activity due to his disabilities. But it is

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equally consistent with the witness having exactly the opposite opinion on those subjects.

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Further, by listing several witnesses with this same description, the disclosure

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could mean that one witness intends to testify that Mr. Cooke does not need electricity or

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clean water and another witness intends to testify that he does need electricity or clean

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water. The purpose of the Rule 26(a)(2)(C) requirement is to allow the party in receipt of

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the disclosure to be able to read the disclosure and immediately be able to identify

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whether it needs a responsive witness and the information that such responsive witness

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would need to address. Such an assessment would be impossible based on Plaintiffs’ and

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Plaintiff-Intervenor’s disclosures regarding Dr. Alcott. Not only do the disclosures say

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nothing about the opinions to which the witness intends to testify, but they do not even

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attempt to state facts supporting such opinions. Accordingly, Plaintiffs’ and Plaintiff-

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Intervenor’s disclosures regarding Dr. Alcott are woefully inadequate and violate Rule

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26(a)(2)(C).

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Thus, Dr. Alcott’s opinions may not be used in support of Plaintiffs’ and/or
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Plaintiff-Intervenor’s summary judgment motions or at trial, unless Plaintiffs and/or

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Plaintiff-Intervenor can show that the inadequate disclosure was substantially justified or

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harmless. See Fed. R. Civ. P. 37(c)(1). Plaintiffs and Plaintiff-Intervenor have failed to

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make such a showing. Defendants have shown that they have been prejudiced because

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they have been unable to disclose a responsive witness to dispute Dr. Alcott’s opinions.

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After taking Dr. Alcott’s deposition, Defendants moved to extend the deadline for

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disclosure of responsive witnesses and Plaintiffs and Plaintiff-Intervenors opposed that

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request. The Court found that the request was untimely and, thus, denied the request.

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Defendants would not have needed an extension of time to disclose a responsive witness

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if Plaintiffs and/or Plaintiff-Intervenor had adequately disclosed Dr. Alcott’s opinions

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and the facts upon which those opinions were based pursuant to Federal Rule of Civil

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Procedure 26(a)(2)(C).

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Plaintiffs and Plaintiff-Intervenor nonetheless argue that the failure to properly

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disclose Dr. Alcott’s opinions and the facts of her testimony is harmless because, if

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Defendants read the documents attached to their disclosure statements, Dr. Alcott’s

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medical records, and documents produced in responses to subpoenas and requests for

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productions, Defendants could have gleaned the substance of Dr. Alcott’s opinions and

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the facts to which she would testify. Plaintiffs and Plaintiff-Intervenor further argue that

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it is indeed clear that Defendants knew the substance of Dr. Alcott’s opinions based on

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the questions Defendants asked Dr. Alcott during her deposition. If, under these facts,

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the Court were to consider Plaintiffs’ and Plaintiff-Intervenor’s failure to properly

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disclose these opinions and facts harmless, this would virtually gut the intent and purpose

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of Rule 26(a)(2)(C).

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Rule 26(a)(2)(C) was created to resolve the tension that sometimes prompted

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courts to require reports under 26(a)(2)(B) from witnesses exempted from the expert

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report requirement. See Fed. R. Civ. P. 26(a)(2)(C), advisory committee’s note 2010

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Amendment. The Rule strikes a balance between requiring an expert report from a

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witness like a treating physician, who was not specially retained to provide expert
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te
estimony an requirin a defend
nd
ng
dant to sea
arch throug hundreds of pages of medica
gh
s
al

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re
ecords in an attempt to guess at what the tes
n
o
w
stimony of a treating p
f
physician m
might entail
l.

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In this case, the Court cannot fin that Pla
n
t
nd
aintiffs’ and Plaintiff Intervenor’ failure to
d
’s
o

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properly follow the req
quirement of Rule 26(
o
(a)(2)(C) w substan
was
ntially harm
mless simply
y

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because Plai
intiffs and Plaintiff-Int
P
tervenor be
elieve that D
Defense cou
unsel correc guessed
ctly
d

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at the substance of Dr. Alcott’s testimon before t
t
D
ny
the time to disclose responsive
e

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witnesses ha expired.
w
ad

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ap
pproach, it would allo litigants to manipu
ow
s
ulate the exp disclos
sure rule in a way tha
n
at
pert

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would mater
w
rially increa the cost of litigation. An op
ase
pposing part should b able (and
ty
be
d

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be entitled) to read an expert dis
n
sclosure, de
etermine w
what, if any, adverse o
opinions are
e

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being proffe
ered and make an info
ormed decision as to whether it is necessar to take a
ry

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deposition an whether a responding expert is needed.
d
nd
r
s

C
to
his
Easter Egg”
”
If the Court were t allow th kind of “find the E

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Accordingly, Pla
aintiffs and Plaintiff-In
ntervenor h
have failed t carry their burden of
to

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howing tha the failur to proper disclose the facts a opinion to which Dr. Alcot
at
re
rly
e
and
ns
h
tt
sh

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would testify is substan
w
y
ntially justif or harm
fied
mless.

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IV.

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d
regoing,
Based on the for

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IT IS ORDERE the Hildale Defen
S
ED
ndants’ Mo
otion to Str
rike the Te
estimony of

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Sally Alcott M.D. (Do 284) an the Tow of Color
S
t,
oc.
nd
wn
rado City’s Joinder th
hereto (Doc
c.

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304) are gra
anted. The Court will not consid any test
l
der
timony of D Alcott i ruling on
Dr.
in
n

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he
ary
nt.
r,
tt’s
n
y
e
th motions for summa judgmen Further Dr. Alcot opinion testimony will not be

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permitted at trial.

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CONCLU
USION

d
d
ruary, 2013.
.
Dated this 13th day of Febr

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