Thomas v. Garcia et al

Filing 182

ORDER Denying in Part and Denying in Part as Moot Plaintiff's 179 Motion to Modify the Pretrial Order to List Additional Trial Exhibits; ORDER Granting Defendant's 180 Motion for 1-Day Extension of Time to Srve Summary offacts and Opinions of Designated Experts Nun Pro Tunc, signed by Magistrate Judge Jennifer L. Thurston on 6/27/13. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEAN-PIERRE K. THOMAS,

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Plaintiff,
v.
M. GARCIA, et al.,
Defendants.

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Case No.: 1:08-cv-00689 - JLT (PC)
ORDER DENYING IN PART AND DENYING IN
PART AS MOOT PLAINTIFF’S MOTION TO
MODIFY THE PRETRIAL ORDER TO LIST
ADDITIONAL TRIAL EXHIBITS
(Doc. 179)
ORDER GRANTING DEFENDANT’S MOTION
FOR 1-DAY EXTENSION OF TIME TO SERVE
SUMMARY OF FACTS AND OPINIONS OF
DESIGNATED EXPERTS
(Doc. 180)

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Plaintiff Jean-Pierre K. Thomas (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to Rule 16(b) of the Federal

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Rules of Civil Procedure, the Court issued the Pretrial Order on June 11, 2013. (Doc. 170). Plaintiff

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has filed a motion to include additional exhibits which, he claims, were not included in the Court’s

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pretrial order and a motion to order Defendants to lodge the corrections previously made to his

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deposition with the Court. (Doc. 179). Defendants seek an extension of time to serve a summary of

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facts and opinions concerning their designated experts. (Doc. 180).

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Accordingly, and for the reasons set forth below, the Court DENIES in part and DENIES in

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part as moot Plaintiff’s motion and GRANTS Defendants’ motion. Nothing in this Order shall

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modify any other deadlines or rulings contained in the Pretrial Order (Doc. 170).
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Plaintiff’s Motion to Include Additional Exhibits for Trial.

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I.

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Plaintiff requests to present additional exhibits for trial. (Doc. 179). Specifically, Plaintiff seeks to

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include: (1) Defendant Garcia’s amended response to interrogatory number 9, set 1; (2) Defendant

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Garcia’s amended response to Plaintiff’s first request for production of documents; (3) Defendant

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Garcia’s opposition to Plaintiff’s motion to compel; (4) Defendant Garcia’s amended response to

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Plaintiff’s second request for production of documents; and (5) Plaintiff’s medical record from his

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visit with Dr. Shaw on June 4, 2013. Id. at 2-5. Plaintiff attaches these documents to his motion as

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Exhibits T, U, and V. Id. at 6-20.

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With regard to Defendant Garcia’s discovery responses, it appears that Plaintiff wishes to use

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these documents at trial for the purpose of impeachment. See Id. at 1-5. These documents have been

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identified in the pretrial order already under the heading, “Discovery Documents.” (Doc. 170 at 9-10)

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Likewise, in the Court’s pretrial order, the Court has already required Defendant to lodge a copy of

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Plaintiff’s deposition transcript along with whatever corrections Plaintiff made. Id. at 10, n. 4. Thus,

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the motion as to these documents is DENIED as MOOT. Moreover, at the pretrial conference,

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Plaintiff argued extensively that the defendant’s opposition to the motion to compel discovery should

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be identified as an exhibit. The Court denied the request. Thus, the motion in this regard is DENIED.

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Plaintiff also seeks to add a medical record from his visit with Dr. Shaw. However, the Court

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notes that Plaintiff’s entire medical file has been identified as an exhibit already. (Doc. 170 at 5 n. 1).

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The Court presumes that Dr. Shaw’s medical note dated June 4, 2012, is contained in Plaintiff’s

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medical file. Thus, granting Plaintiff’s present motion would be redundant1 to the Court’s pretrial

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order. Therefore, Plaintiff’s request to add the June 4, 2012 medical note is DENIED.

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Defendant’s Nunc Pro Tunc Request for Extension of Time to Serve a Summary of

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Facts and Opinions of Designated Experts.

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Defendants seek to extend time to serve a summary of facts and opinions concerning their

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designated experts. (Doc. 180 at 1). Defense counsel explains that she intended to serve her “Expert

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Disclosure” along with the Defendants’ pretrial statement, but inadvertently failed to do so. Id. at 2.

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Plaintiff may renew his request concerning Dr. Shaw’s medical note dated June 4, 2012, in the event that this
note is not contained in his medical file or upon good cause shown.

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Nonetheless, Defense counsel reports that she verbally informed Plaintiff of the subject matter of the

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experts’ testimony on June 10, 2013, and filed a written summary of the experts’ testimony with the

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Court on June 25, 2013. Id. at 2-3.

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The Court has not set a deadline for the disclosure of witnesses’ facts and opinions. However,

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Fed.R.Civ.P. 26(2)(D) imposes a duty to disclose expert testimony 90 days prior to trial. Nonetheless,

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Plaintiff has been previously advised of the experts’ testimony. Thus, the Court finds no manner in

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which Plaintiff would be prejudiced by granting Defendants’ motion. Therefore, the Court GRANTS

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Defendants’ nunc pro tunc request for extension of time to serve summary of facts and opinions of

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designated experts.
ORDER

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Accordingly, the Court ORDERS that:

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1. Plaintiff’s request to modify the Pretrial Order, dated June 11, 2013, to include responses to

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discovery, specifically, Defendant Garcia’s amended response to interrogatory number 9, set

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one; Defendant Garcia’s amended response to Plaintiff’s first request for production of

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documents; and Defendant Garcia’s opposition to Plaintiff’s motion to compel, page 6;

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Defendant Garcia’s amended response to Plaintiff’s second request for production of

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documents, is DENIED as MOOT;

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2. Plaintiff’s request to modify the Pretrial Order, dated June 11, 2013, to include Defendant’s
opposition to the motion to compel is DENIED;
3. Plaintiff’s Motion for the Court to Order and/or Request Defense Counsel to Produce
Plaintiff’s Corrections to his Deposition (Doc. 179 at 19-23) is DENIED as MOOT; and
4. Defendants’ nunc pro tunc request for extension of time to serve summary of facts and
opinions of designated experts (Doc. 180) is GRANTED.

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IT IS SO ORDERED.
Dated:

June 27, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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