Hicks v. Lowe's HIW, Inc.

Filing 44

ORDER signed by Judge Kimberly J. Mueller on 3/26/2014 ORDERING 35 Motion in Limine is DENIED; Having waived conflict as to the assigned magistrate judge, the parties are directed to attend a settlement conference with the Honorable Kendall J. New man on April 2,2014 at 9:30 a.m. in Courtroom No. 25, 8th Floor. Counsel are instructed to have a principal with full settlement authority present or to be fully authorized to settle the matter on any terms. Counsel for each party shall submit a confidential Settlement ConferenceStatement by March 31, 2014. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARDTE HICKS,

No. 2:12-CV-01883-KJM-KJN

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Plaintiff,
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v.

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ORDER

LOWE’S HOME CENTERS, LLC,
Defendant.

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Plaintiff moves to exclude the expert testimony of defense witness Geoffrey

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Miller, M.D. Pl.’s Mot. in Limine (“MIL”) at 1, ECF No. 35.1 The court decided the matter

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without argument, and for the reasons below DENIES the motion.

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Plaintiff argues the testimony and any related evidence must be excluded

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because Federal Rule of Civil Procedure 26 requires parties to disclose “the identity of any

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[expert] witness it may use at trial.” FED. R. CIV. P. 26(a)(2). Such disclosures are to be made

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according to the schedule set by the court. See id. advisory committee’s note (1993). As

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defendant failed to comply with the court-imposed deadline, plaintiff contends exclusion is

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proper. MIL at 2–3.

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Although both parties filed several motions in limine, plaintiff requested at the final
pretrial conference that the court decide this motion before scheduling a settlement conference.
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Defendant disputes plaintiff’s characterization of the circumstances. Def.’s

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Opp’n to MIL (“Opp’n”), ECF No. 38. Although it admits neglecting to file the expert

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disclosure with the court, it insists it served plaintiff with Dr. Miller’s independent medical

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examination report and expert witness disclosure before the October 21, 2013 deadline. Id. at

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2. These assertions are supported by a declaration and documentary proof, id. Exs. A–B, and

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plaintiff does not deny timely receipt of the documents.

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Rule 37 dictates the consequences of failure to disclose: “If a party fails to

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provide information or identify a witness as required by Rule 26(a) . . . , the party is not

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allowed to use that information or witness to supply evidence . . . at a trial, unless the failure

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was substantially justified or is harmless.” FED. R. CIV. P. 37(c). Here, defendant timely

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served and plaintiff timely received all relevant information relating to Dr. Miller and his

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anticipated testimony; only the court received the report after the deadline. Plaintiff fails to

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identify any resultant harm from the timing of defendant’s filing with the court, and the court

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rejects plaintiff’s averment that defendant “just recently revealed in its Witness List . . . that

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Geoffrey Miller, M.D. intends to offer expert testimony on ‘issues of causation, damages,

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prognosis, diagnosis, and reasonableness and necessity of all prior, current and future medical

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care and expenses.’” MIL at 2–3. Instead, the court concludes plaintiff was timely apprised of

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Dr. Miller’s intended testimony, and any “failure was . . . [thus] harmless.” FED. R. CIV. P.

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37(c). The motion is denied.

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Having waived conflict as to the assigned magistrate judge, the parties are

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directed to attend a settlement conference with the Honorable Kendall J. Newman on April 2,

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2014 at 9:30 a.m. in Courtroom No. 25, 8th Floor. Counsel are instructed to have a principal

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with full settlement authority present or to be fully authorized to settle the matter on any terms.

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See Local Rule 270. Counsel for each party shall submit a confidential Settlement Conference

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Statement by March 31, 2014, using the following email address:

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[e-mail]. Such statements are neither to be filed with the Clerk nor

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served on opposing counsel. Each party, however, shall serve notice on all other parties that

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the statement has been submitted.
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IT IS SO ORDERED.
DATED: March 26, 2014.

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UNITED STATES DISTRICT JUDGE

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