Watson et al v. Dillon Companies, Inc. et al

Filing 642

ORDER granting in part and denying in part 635 Plaintiffs' Motion for Leave to Present Testimony of Treating Physician Dr. Cecile Rose by way of Deposition at Daubert Hearing or, in the Alternative, to Hold Hearing Open, or in Second Alternati ve to Reschedule Hearing. Plaintiffs may present Dr. Rose's testimony by way of deposition without prejudice to an order reconvening the Daubert hearing should additional testimony be required. Plaintiffs' alternative request to reschedule the hearing is denied. By Judge Walker D. Miller on 6/7/11.(mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
SENIOR JUDGE WALKER D. MILLER
Civil Action No. 08-cv-00091-WDM-CBS
WAYNE WATSON and
MARY WATSON,
Plaintiffs,
v.
DILLON COMPANIES, INC., d/b/a/ KING SOOPERS, also d/b/a INTER-AMERICAN
PRODUCTS, INC., et al.,
Defendants.1

ORDER ON MOTION FOR LEAVE TO PRESENT
TESTIMONY BY DEPOSITION
Miller, J.
This matter is before me on Plaintiffs’ Motion for Leave to Present Testimony of
Treating Physician Dr. Cecile Rose by way of Deposition at Daubert Hearing or, in the
Alternative, to Hold Hearing Open, or in Second Alternative to Reschedule Hearing
(ECF No. 635). Defendants do not object to rescheduling the hearing but object to
keeping the hearing open or permitting Plaintiffs to rely on the opinions of Dr. Rose
without her appearing at a hearing on the issues raised.
A Daubert hearing is set for June 14 - 15, 2011 to resolve challenges raised by
Defendants to opinions proffered by Plaintiffs’ three expert witnesses, including Dr.
Rose. This hearing was set and the parties instructed on January 27, 2011 that all
1

This case includes a number of third-party and other related litigation. However,
since the motions addressed here concern only the primary parties, I have not included
the related matters in the caption of this order.

witnesses must appear in person. ECF No. 619. Plaintiffs have provided no
explanation or good cause for why they were unable to ensure that Dr. Rose would be
present at the hearing, and have merely informed me that Dr. Rose will be out of town.
They have proposed to present Dr. Rose’s testimony by deposition.
The problem presented by Plaintiffs is that Dr. Rose was deposed and crossexamined on April 7, 2010 but Defendants’ motion to strike Dr. Rose’s testimony was
filed on September 13, 2010. The purpose of the hearing is to address the issues
raised by the motions, including by having the witness respond to questions from the
court, not to simply repeat testimony that already exists on the record. In the absence
of good cause, I will not reschedule the hearing, which would result in additional cost
and inconvenience to Defendants. Plaintiffs may present any additional relevant
portions of Dr. Rose’s deposition testimony as they deem necessary at the June 14-15,
2011 hearing but need not repeat the portions already provided in the briefing or
otherwise. See e.g., Exhibit 14 (excerpts from Dr. Rose’s deposition) to Plaintiff’s
Statement of Disputed or Undisputed Material Facts (ECF No. 600). If I conclude that I
cannot resolve the motion to strike Dr. Rose’s expert opinions without additional
testimony from Dr. Rose, I will reconvene the hearing and Defendants may seek costs
incurred as a result.
Accordingly, it is ordered:
1.

Plaintiffs’ Motion for Leave to Present Testimony of Treating Physician Dr.
Cecile Rose by way of Deposition at Daubert Hearing or, in the
Alternative, to Hold Hearing Open, or in Second Alternative to Reschedule
Hearing (ECF No. 635) is granted in part and denied in part. Plaintiffs
2

may present Dr. Rose’s testimony by way of deposition without prejudice
to an order reconvening the Daubert hearing should additional testimony
be required. Plaintiffs’ alternative request to reschedule the hearing is
denied.
DATED at Denver, Colorado, on June 7, 2011.
BY THE COURT:

s/ Walker D. Miller
United States Senior District Judge

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