Percelle v. Pearson et al

Filing 371

ORDER Re: Testimony of Dr. Gerardo Solorio-Cortes. Signed by Judge Thelton E. Henderson on 11/29/16. (tehlc1, COURT STAFF) (Filed on 11/29/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVE DALE PERCELLE,
Plaintiff,

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v.
STEVEN PEARSON, et al.,

Case No. 12-cv-05343-TEH
ORDER RE: TESTIMONY OF
DR. GERARDO SOLORIO-CORTES

Defendants.

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The parties appeared for a second pretrial conference hearing before this Court on
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November 28, 2016. Defendants objected to the testimony of Dr. Gerardo Solorio-Cortes
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United States District Court
Northern District of California

on the ground that he was not timely disclosed as a fact witness and not properly disclosed
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as a non-retained expert. The Court hereby grants Defendants’ objection for the reasons set
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forth below.
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Dr. Solorio-Cortes was first disclosed as a witness on September 4, 2015. He was
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one of the witnesses listed in “Plaintiff Steve Dale Percelle’s Rule 26 Disclosure of Expert
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Testimony.” Exh. B to Defs.’ Mot. in Limine No. 5 (ECF No. 288-2). Plaintiff included
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Dr. Solorio-Cortes’ contact information and a statement of the purpose of Dr. Solorio18

Cortes’ testimony—“for medical opinions as treating health care provider concerning the
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nature and cause of the injuries and harm sustained by Steve Dale Percelle.” Id. at 3.
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Plaintiff did not provide a written report for this witness because, as Plaintiff explained at
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the November 28, 2016 hearing, Dr. Solorio-Cortes was not retained as an expert.
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Federal Rule of Civil Procedure 26(a)(2)(C) requires the following of witnesses
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who are not retained and thus do not need to provide written reports:
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“Unless otherwise stipulated or ordered by the court, if
the witness is not required to provide a written report, the
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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Plaintiff disclosed the subject matter of Dr. Solorio-Cortes’ testimony— “nature

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and cause of the injuries and harm sustained by Steven Dale Percelle.” Exh. B to Defs.’

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Mot. in Limine No. 5 at 3 (ECF No. 288-2). However, Plaintiff did not provide a summary

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of the facts and opinions to which the witness is expected to testify. The Court therefore

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finds that Dr. Solorio-Cortes was not properly disclosed as a non-retained expert.

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Dr. Solorio-Cortes was also not timely disclosed as a fact witness. Plaintiff did not

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include his name in his initial disclosures of fact witnesses nor did he provide

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supplemental disclosures of fact witnesses before the discovery cutoff date of July 20,

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2015. Exh. A to Defs.’ Mot. in Limine No. 5 at 3 (ECF No. 288-1).
Defendants claim that they were prejudiced by Plaintiff’s failure to properly

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United States District Court
Northern District of California

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disclose Dr. Solorio-Cortes because they were not able to take his deposition. Defs.’ Mot.

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in Limine No. 5 at 4. Given that the improper disclosure was not harmless, Federal Rule of

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Civil Procedure 37(c)(1) requires that Plaintiff be prevented from introducing the

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testimony of Dr. Solorio-Cortes at trial.

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Lastly, even though Dr. Solorio-Cortes may not testify at trial, Plaintiff may

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introduce medical records Dr. Solorio-Cortes produced in treating Plaintiff if they are

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otherwise admissible. As the Court held in its Order on Pretrial Motions, evidence of

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Plaintiff’s mental health treatment since July 20, 2015 is relevant to the issue of damages.

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IT IS SO ORDERED.

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Dated: 11/29/16

_____________________________________
THELTON E. HENDERSON
United States District Judge

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