Leaks et al v. Target Corporation
Filing
44
ORDER terminating 33 Motion to Amend/Correct; denying 35 Motion to Quash; denying 38 Motion. The parties have an additional 30 days from the date of this Order to file dispositive motions. Signed by Magistrate Judge G. R. Smith on 7/6/15. (wwp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LATISHA LEAKS and BENJAMIN
LEAKS,
Plaintiffs,
Case No. CV414-106
TARGET CORPORATION,
Defendant.
ORDER
For the third time, this rather standard slip-and-fall case has
spawned a discovery dispute. The current bickering involves a motion to
quash and motion in limine from plaintiffs Latisha and Benjamin Leaks
(respectively Ms. and Mr. Leaks), docs. 35 & 41, and motions to compel
and to exclude from defendant Target. Docs. 36 & 38.
I. BACKGROUND
Not quite two years ago, Ms. Leaks allegedly slipped at a Savannah,
Georgia Target store and suffered back and knee injuries. Doc. 1-2 at 3.
She sued Target in state court, and her husband joined her with a loss of
consortium claim. Doc. 1-2 at 6. Target removed their case to this Court
on May 22, 2014. Doc. 1. Since then, the parties have requested, and the
Court has granted, three' discovery deadline extensions. See does. 13, 31,
342 The most recent -- filed January 30, 2015 -- instructed the parties to
"complete all outstanding discovery" by March 11, 2015 and called for
motions by April 10, 2015. Doc. 34 at 4.
On March 10, 2015, Target issued five new subpoenas seeking
production of documents to Blue Cross Blue Shield of Alabama (BCBS),
Internal Medicine of Savannah, St. Joseph's/Candler Hospital, Walgreens
Pharmacy, and Disability Adjudication Services (DAS). See doe. 35 at 847. Target sent the DAS subpoena because it "became aware that
plaintiff had filed for disability on March 5, 2015," and the other four
subpoenas to request "updated records related to plaintiffs ongoing
treatment." Id. at 2. On March 16, 2015 -- five days after discovery
1
Three is not a magic number in this case. For every discovery extension granted, a
discovery dispute followed. See doe. 27 (order addressing dueling motions to compel
and Target's motion for protective order); doe. 34 (motion to compel, motion to
determine reasonable fees, motion to extend); doe. 35 (motion to quash); doe. 36
(motion to compel); doe. 38 (motion to exclude). Discovery is designed as a
cooperative, self-executing mechanism, not a death-by-a-thousand-paper-cuts
exercise.
2
Still pending on the docket is a motion to amend the scheduling order. Doe. 33.
The Clerk is DIRECTED to terminate that motion since the Court's January 30,
2015 Order granted the requested extensions. See doe. 34.
2
closed -- Target issued a sixth non-party subpoena to Proove Medical
Laboratories, Inc. (Proove). Id. at 43.
Target also sent plaintiffs a request for production of documents
seeking a records release authorization related to the DAS subpoena.
Doc. 36-1. In response to plaintiffs' motion to quash all six subpoenas,
doe. 35, and because plaintiffs have not yet produced the records release
authorization, Target moved to compel that release. Doc. 36. It also
moved to exclude plaintiffs' rebuttal expert. Doc. 38. Plaintiffs
responded by filing their own motion to exclude one of Target's experts.
Doc. 41.
IL ANALYSIS
A. Motion to Quash and Motion to Compel
Plaintiffs argue that all six subpoenas should be quashed because
they violate the Court's latest scheduling order. Doc. 35 at 3. Target
contends that they are timely because it served them the day before
discovery closed and, in any case, that plaintiffs lack standing to
challenge them. Doc. 36 at 4. Furthermore, Target says, the DAS and
Proove subpoenas should be allowed regardless of timeliness because Ms.
Leaks failed to disclose her disability benefits application and her
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treatment by Proove, and Target did not discover either until March 5
(the disability application) and March 13, 2015 (the Proove treatment).
Id. at 6-7.
Although true that (1) the Court ordered the parties to complete
discovery by March 11, 2015, doc. 34 at 4, and (2) Target's subpoenas
called for production of documents after that deadline, see, e.g., doc. 35 at
36, the Court has broad discretion to allow or curtail the timing and
reach of discovery. See Fed. R. Civ. P. 26(d); Adkins v. Christie, 488 F.3d
1324 1 1331 (11th Cir. 2007) ("[D]istrict courts have broad discretion in
fashioning discovery rulings . . . [but] are bound to adhere 'to the liberal
spirit of the [Federal] Rules."); DeRubeis v. Witten Techs., Inc.,
244
F.R.D. 676 1 678 (N.D. Ga. 2007) (Rule 26 gives district courts "broad
discretion to modify the timing and sequence of discovery" and exercises
of that discretion "will be sustained unless [the court] abuses [its]
discretion to the prejudice of a party").
The subpoenas to BCBS, Internal Medicine, St. Joseph's Hospital,
and Walgreens were second requests to those providers and sought
updated records, not records for the first time. By sending them late in
the discovery period, Target may simply have wished to extend its
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discovery net to cover the greatest length of time possible. Or, it may
simply have dropped the ball and forgotten to seek updated productions
until the last minute, thinking that the providers had an obligation to
supplement (they did not).' Regardless, the medical records sought
unquestionably are relevant to Ms. Leaks' personal injury claim and the
timing of the subpoenas does not prejudice plaintiffs. The Court
therefore refuses to quash the subpoenas to BCBS, Internal Medicine, St.
Joseph's Hospital, and Walgreens.
The subpoenas to Proove and DAS are somewhat different. Target
only learned that Proove conducted genetic testing on Ms. Leaks after
discovery ended, and only because BCBS records showed payment to
Proove. See doe. 36 at 7. Target thereafter promptly subpoenaed the
Proove records. Id. Plaintiffs say they had no idea Ms. Leaks' physician
sent samples to Proove for testing, and thus they could not disclose what
they did not know. Doe. 40 at 8-9. Regardless, plaintiffs want the
Proove subpoena quashed because they believe it seeks irrelevant
information. Id.
As plaintiffs correctly note, only parties have an obligation to supplement their
discovery responses. See Fed. R. Civ. P. 26(e). Third parties responding to
subpoenas issued under Rule 45, like the providers here, do not. See Alexander v.
FBI, 192 F.R.D. 37, 38 (D.D.C. 2000) (non-parties responding to subpoenas have no
duty to supplement discovery responses).
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The Court cannot discern whether Proove's testing is relevant to
Ms. Leaks' alleged back injury without examining the records. One can
speculate, as plaintiffs have, that genetic testing may have little to do
with a herniated disk. But since (1) plaintiffs failed to disclose Proove's
testing within the discovery period (albeit inadvertently), and (2)
disclosure of the records will not prejudice plaintiffs (except insofar as
they disprove plaintiffs' claims, which doesn't qualify as prejudice in any
case), the Court will not quash the subpoena in light of the broad scope
of discovery. See Fed. R. Civ, P. 26(b)(1) ("Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party's
claim."); United States v. Capers, 708 F.3d 1286, 1308 (11th Cir. 2013)
("Evidence is relevant if it has any tendency to make the existence of any
fact or consequence more or less probably than it would be without the
evidence.") (emphasis added).
The DAS subpoena presents yet another situation. It seeks:
[ajny and all monthly Social Security benefit amounts, monthly
Supplemental Security Income payment amounts, information
about benefits/payments received, information about Social
Security claim/coverage, any and all medical records, application for
benefits, denial of benefits, independent medical examinations,
wage claim information and/or payments, office records, office
cards, written memoranda, correspondence, medical bills, phone
messages, and any other records pertaining to Latisha Leaks.
M
.
Doe. 35 at 38. Target's motion to compel is intertwined with the
subpoena because it seeks the records release authorization from Ms.
Leaks that DAS requires in order to produce records directly to Target.
See doe. 36 at 8. Since Target served the subpoena and filed the motion
to compel, however, plaintiffs have received Ms. Leaks' records from the
Social Security Administration and produced them in full and without
redactions. See doe. 42.
Nevertheless, Target has some reason to be wary of plaintiffs'
production since they never actually disclosed Ms. Leaks' disability
application. Target "only became aware [of the application] . . . on
March 5, 2015, when it received updated records from Optim
Healthcare." Doe. 36 at 2. Target wasted no time thereafter in
subpoenaing records from DAS. See doe. 35 at 36 (subpoena dated March
10, 2015). Particularly given (1) the potential importance of such records
in personal injury cases, and (2) Target's need to ensure a complete,
accurate production of those records, the Court will not quash the DAS
subpoena. Since the subpoena is useless without the records release
authorization, the Court DIRECTS Ms. Leaks to provide that also.
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B. Motions to Exclude
One week after the motions deadline, Target moved to exclude Dr.
David Cohen, because, Target alleges, "plaintiffs [offer him] as a
causation expert rather than as a true rebuttal expert." Doc. 38 at 1.
Plaintiffs disagree. Doc. 41. Plaintiffs, in turn, move to exclude one of
Target's witnesses, Dr. Nicholas Arredorido, arguing that Target failed to
timely disclose him as an expert. Id. at 2.
1. Dr. Cohen
Fed. R. Civ. P. 26(a)(2)(D)(ii) provides that a party must disclose
expert witnesses "within 30 days after the other party's disclosure" if the
expert testimony is "intended solely to contradict or rebut evidence on
the same subject matter identified by [the other] party."
Rebuttal expert reports "necessitate 'a showing of facts supporting
the opposite conclusion' of those at which the opposing party's
expert arrived in their responsive reports." Bone Care Int'l, LLC v.
Pentech Pharmaceuticals, Inc., 2010 WL 389444 (N.D.Il1. Sep. 30,
2010) (quoting ABB Air Preheater, Inc. v. Regenerative
Environmental Equip., Inc., 167 F.R.D. 668, 669 (D.N.J.1996)).
Rebuttal expert reports are proper if they contradict or rebut the
subject matter of the affirmative expert report. Lindner V. Meadow
Gold Dairies, Inc., 249 F.R.D. 625, 636 (D.Haw.2008). They are not,
however, the proper place for presenting new arguments. 1-800
Contacts, Inc. v. Lens. com , Inc., 755 F.Supp.2d 1151, 1167 (D.Utah
2010); see LaFlamme v. Safeway, Inc., 2010 WL 3522378 (D.Nev.
Sep. 2, 2010); cf. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 749,
759 (8th Cir.2006) ("The function of rebuttal testimony is to
explain, repel, counteract or disprove evidence of the adverse
party.") (citation omitted). "If the purpose of expert testimony is to
'contradict an expected and anticipated portion of the other party's
case-in-chief, then the witness is not a rebuttal witness or anything
analogous to one." Amos v. Makita, U.S.A., 2011 WL 43092 at * 2
(D.Nev. Jan. 6, 2011) (quoting In re Apex Oil Co., 958 F.3d 243, 245
(8th Cir.1992)); see also Morgan v. Commercial Union Assur. Cos.,
606 F.2d 554, 556 (5th Cir.1979); LaFlamme, 2010 WL 3522378 at
* 3. Rather, rebuttal expert testimony "is limited to 'new
unforeseen facts brought out in the other side's case." In re
President's Casinos, Inc., 2007 WL 7232932 at * 2 (E.D.Mo. May 16,
2007) (quoting Cates v. Sears, Roebuck & Co., 928 F.2d 679, 685
(5th Cir.1991)).
Downs v. River City Grp., LLC, 2014 WL 814303 at * 2-3 (D. Nev. Feb.
28, 2014).
Target timely disclosed two retained experts, including orthopedic
surgeon H. Clark Deriso, M.D. Doc. 41 at 2. Deriso's expert report
summarized Ms. Leaks' relevant medical history and his examination of
her. Doc. 41-5 at 2-3. It did not contain Dr. Deriso's opinion on the
cause of Ms. Leaks' back and knee pain. Nevertheless, plaintiffs'
counsel, familiar with Deriso as a frequent defense expert, anticipated
that he would testify that Ms. Leaks' fall did not cause her injuries. Doc.
41 at 2-3, 6. Plaintiffs thus hired Cohen to rebut Deriso's anticipated
attack on causation. Id. at 3.
Cohen's report -- a mere eight sentences long -- does not discuss
Deriso's report or address his examination findings. Compare doc. 41-5
(Deriso report) with doc. 41-6 (Cohen report); cf. Teledyne Instruments,
Inc. v. Cairns, 2013 WL 5781274 at * 18 (M.D. Fla. Oct. 25, 2013) (expert
rebuttal report mentioned opposing report more than thirty times and
frequently quoted other report, and thus was "a bona fide rebuttal"). It
does not impeach Deriso's conclusions (or discuss them at all). Instead,
it discusses Cohen's own views on the cause of Ms. Leaks' injury.
See
Doe. 41-6 at 4 ("Chemical, as well as possibly physical irritation of the
associated nerve root, resulting directly from this injury, have caused her
chronic low back pain . . . ."). Although a reader can infer that the
authors of the reports likely disagree on the cause of Ms. Leaks' injury
(degenerative conditions vs. slip-and-fall), Cohen's report simply does not
address the factual underpinnings of Deriso's and so cannot constitute a
rebuttal within the meaning of Rule 26(a)(2)(A)(ii). See Downs, 2014 WL
814303 at * 3.
But that is not the end of the story for Cohen.
Expert testimony which is not truly rebuttal in nature shall not be
allowed at trial, unless the failure to disclose information required
by Rule 26(a) was "harmless" or "substantially justified." Fed. R.
Civ. P. 37(c)(1). The sanction of preclusion is "automatic and
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mandatory unless the sanctioned party can show its violation
was either justified or harmless." R & 0 Const. Co. [u. Rox Pro Intl
Grp., Ltd.], 2011 WL 2923703 at * 2 (citing Salgado v. General
Motors Corp., 150 F.2d 735, 742 (7th Cir.1998))
Id. "The purpose of the Rule 26(a) disclosure requirements is to provide
notice to opposing counsel as to what an expert witness will testify."
Silverstein v. Procter & Gamble Mfg. Co., 700 F. Supp. 2d 1312, 1320
(S.D. Ga. 2009) (citing Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th
Cir. 2008)). Consequently, "[a] party's failure to properly disclose an
expert," including improper designation of an expert under Rule
26(a)(2)(D)(ii), "is harmless when no prejudice results to the opposing
party." Id.
In Silverstein, this Court found no prejudice from a total failure to
identify an expert because the opposing party knew the witness might be
called "and, in fact, already took his deposition." Id. So too here. Target
received notice that Dr. Cohen would be called and took his deposition on
the penultimate day of discovery. See docs. 41 at 3; 41-7 (transcript of
Dr. Cohen's deposition). At this point, whether or not Dr. Cohen in fact
"rebuts" Dr. Deriso's testimony, Target cannot claim any surprise or
lack of notice. Since Plaintiffs have shown that any error they
committed in designating Dr. Cohen as a rebuttal expert under Rule
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26(a)(2)(D)(ii) was harmless, the Court DENIES Target's motion to
exclude. Doe. 38.
2. Dr. Arredondo
The most recent scheduling order required Target to disclose its
experts by December 10, 2014.
See doe. 31. Target disclosed two
retained experts on December 9, 2014. Target has never disclosed Dr.
Arredondo as an expert, though it deposed him on March 10, 2015. Doe.
41 at 3. Plaintiffs argue the Court should exclude Dr. Arredondo because
his designation violated the Scheduling Order and, further, Target's
failure to designate was not harmless. Id. at 5. But Dr. Arredondo, it
turns out, provided a second opinion on the genesis of Ms. Leaks' pain
about two months prior to her filing suit in state court, doe. 41-8 at 3, yet
plaintiffs never disclosed him to Target (much like Proove, Target
discovered Dr. Arredondo while reviewing records produced by BCBS).
Doe. 43. Target thus asks the Court to allow his testimony as a sanction
for plaintiff's alleged Rule 26 violation. See doe. 43.
Target says the deposition was on March 6, 2015. Doe. 43. This discrepancy is
most curious, as the date a deposition occurred ought not be in dispute.
Nevertheless, the precise date of the deposition is, in this case, irrelevant to whether
Dr. Arredondo may testify.
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As noted above, a failure to designate under Rule 26(a) is harmless
if no prejudice resulted to the opposing party. Silverstein, 700 F. Supp.
2d at 1320. Plaintiffs state that "Target's failure to identify [Dr.
Arredondo] as an expert prejudiced [them] because they were unable to
identify a rebuttal witness to counter his testimony due to expiration of
that deadline." Doc. 41 at 6. On the contrary, says Target, "[t]here was
no unfair surprise to plaintiffs because they were aware of Dr. Arredondo
and had access to Ms. Leaks' medical records from [his] treatment."
Doc. 43 at 5.
Much as Target cannot claim surprise at Dr. Cohen, plaintiffs also
cannot with Dr. Arredondo. And like Target with Dr. Cohen, plaintiffs
had the chance to cross-examine Dr. Arredondo. That plaintiffs did not
name a rebuttal witness does not show prejudice. Even if it did, the
Court doubts that plaintiffs had no opportunity to do so, because for
some time before his deposition, the parties discussed whether Target
would disclose Dr. Arredondo as an expert. See doc. 3 at 3.
Both Target and plaintiffs may have violated Rule 26's expert
disclosure requirements. But neither party was prejudiced by the other's
failure. Rather than exclude evidence based on simple indignation (what,
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in effect, both parties want the Court to do), the Court will exercise its
broad discretion and allow both Dr. Cohen and Dr. Arredondo as experts.
Plaintiffs' motion to exclude therefore is DENIED. Doc. 41.
IV. CONCLUSION
Plaintiffs' motion to quash is DENIED, doc. 35, so Target's motion
to compel production of Ms. Leaks' disability records release
authorization is GRANTED.' Doc. 36. The Court DIRECTS Ms. Leaks
When a court grants a motion to compel, Rule 37(a)(5) "require[s] the party
whose conduct necessitated the motion . . . to pay the movant's reasonable expenses
incurred in making the motion, including attorney's fees." Here, however, Target
has not requested expenses or fees. To boot, some question exists whether Target
conferred in good faith with plaintiffs regarding the release authorization. Failure to
do so bars fee awards to the moving party. See Fed. R. Civ. P. 37(a)(5)(A)(i) (courts
"must not order" an award of expenses if the movant fails to certify that it attempted
to resolve the discovery issue in good faith). Hence, the Court will not award it
expenses and fees despite granting the motion to compel.
Let this serve as a wake-up call to the parties, though. For too long both parties
have played fast and loose with their discovery obligations, and it should stop now.
Plaintiffs failed to disclose a health care provider (Dr. Arredondo) and a disability
application, both of which are plainly responsive to Target's discovery requests.
Target, on the other hand, flirted with violating Rule 37's requirement that the
parties confer in good faith regarding discovery disputes. See DirecTV, LLC v.
Shirah, 2013 WL 5962870 at * 2 (S.D. Ga. Nov. 6, 2013) (letters recounting perceived
errors in an opposing parties' responses "does not meet the good faith effort
standard"); see also Limtiaco v. Auction Cars.Com , LLC, 2012 WL 5179708 at * 3 (D.
Nev. Oct. 17, 2012) (several letters identifying the perceived failings of the
defendant's discovery responses did not constitute the necessary effort required by
Rule 37); Velazquez—Perez v. Developers Diversified Realty Corp., 272 F.R.D. 310, 312
(D.P.R. 2011) (emails and letters sent to defendant did not reveal that a good faith
effort was made). And both parties' expert witness disclosures leave something to be
desired. Moving forward, the parties should conduct themselves with a closer eye to
the cooperative spirit embodied in the discovery rules. Should they come back to the
Court with another discovery dispute, the prevailing party likely will be awarded
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to provide the records release authorization within seven days of this
Order's filing. The parties' dueling motions to exclude are both
DENIED. Does. 38, 41. Finally, the Clerk is DIRECTED to terminate
the parties' motion to amend the scheduling order. Doe. 33. See supra, n
2. Because of the Court's delay in ruling on these motions, the parties
have an additional 30 days from the date of this Order to file dispositive
motions. Discovery, however, remains closed.
SO ORDERED this 6th day of July, 2015.
UNITED STATES MAGISTRATE =GE
SOUTHERN DISTRICT OF GEORGIA
expenses and fees. And if both parties are at fault, they will be directed to pay a
financial sanction to the Clerk of Court.
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