Valiavacharska v. Celaya et al

Filing 111

ORDER DENYING PLAINTIFFS REQUEST TO SUBSTITUTE MEDICAL EXPERTS (DKT. NO. 110). Signed by Magistrate Judge Jacqueline Scott Corley on 1/23/2012. (ahm, COURT STAFF) (Filed on 1/23/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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ZHIVKA VALIAVICHARSKA,
Plaintiff,

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v.

Case No.: CV 10-4847 JSC
ORDER DENYING PLAINTIFF’S
REQUEST TO SUBSTITUTE
MEDICAL EXPERTS (DKT. NO. 110)

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MITCH CELAYA, et al.,
Defendants.

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Now pending before the Court is a January 22, 2012 letter from Plaintiff requesting to

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substitute properly noticed medical expert witness Dr. Mathias Masem with a Dr. Strudwick.

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The deadline to disclose expert witnesses was December 29, 2011, and discovery on

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expert witnesses closed January 20, 2012. (Dkt. No. 74.) Trial is scheduled to commence on

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February 6, 2012. Plaintiff did not disclose Dr. Strudwick as an expert witness and,

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accordingly, he has not been deposed. Plaintiff did place on her trial exhibit list a medical

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report Dr. Strudwick authored after he examined Plaintiff in the summer of 2011, but

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Defendant moved to exclude the exhibit as inadmissible hearsay. At the pretrial conference

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on January 19, 2012, Plaintiff explained that she did not intend to call Dr. Strudwick as a

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witness but that his report had been reviewed by the parties’ medical experts. Accordingly, the

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Court sustained Defendant’s objection.

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Plaintiff now asserts in a letter dated January 22, 2012 that a “mistaken” member of Dr.

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Masem’s staff informed Plaintiff that Dr. Masem would testify as an expert in the trial, but

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Plaintiff just learned that Dr. Masem “makes it a rule never to act as an expert witness.” (Dkt.

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No. 110.) Plaintiff proposes to substitute Dr. Strudwick as an alternate expert medical

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witness, even though he was never identified as such and has not been deposed. On the eve of

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trial, such a substitution is not proper. Plaintiff is responsible for ensuring that anyone she

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identifies as an expert witness has, in fact, agreed to serve as an expert witness on her behalf.

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Dr. Masem’s unwillingness to testify as an expert is not grounds to introduce a new expert

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witness who was not properly disclosed—or deposed—before discovery deadlines. Plaintiff’s

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motion is DENIED.

Northern District of California

United States District Court

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IT IS SO ORDERED.
Dated: January 23, 2012

_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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