Johnson v. Pioneer Railcorp et al
Filing
90
OPINION REGARDING PENDING MOTIONS entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Defendant's Motion to Strike 65 and Plaintiff's Motion to Extend 74 are ALLOWED. Defendant's Motion in Limine 66 , Plaintiff's Motion f or Extension of Time 67 , and Defendant's Motion Regarding the Sufficiency of a Rule 36 Answer or Objection 76 are ALLOWED in part and DENIED in part. Plaintiff's Request for Leave to File Fourth Amended Complaint 71 , Defendant's Motion for Leave to File Reply 77 , Plaintiff's Motion for Leave to File Response 81 , Defendant's Motion to Supplement 82 , Defendant's Supplement to Motion to Supplement 83 , Defendant's Unopposed Motion to File a Reply in Excess of Local Rule Page Limit 85 , and Defendant's Motion to Strike Exhibits 89 are DENIED. See written order. Dispositive Motions deadline is set 3/9/2015; Final Pretrial Conference set 6/3/2015 at 10:00 AM in Courtroom 3 in Springfield before U.S. Magistrate Judge Tom Schanzle-Haskins; Jury Trial set 6/15/2015 at 9:00 AM before Judge Schanzle-Haskins. See written order for complete Seventh Scheduling Order. Entered by Judge Schanzle-Haskins on 8/20/2014. (LB, ilcd)
E-FILED
Wednesday, 20 August, 2014 03:39:44 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, PEORIA DIVISION
SHERYL JOHNSON, Administrator of
the Estate of Chris Johnson,
Deceased,
)
)
)
)
Plaintiff,
)
)
v.
)
)
DECATUR JUNCTION RAILWAY, CO., )
)
Defendant.
)
No. 11-cv-1400
OPINION REGARDING PENDING MOTIONS
THOMAS P. SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
A.
PENDING MOTIONS
Currently pending before the Court are the following motions:
1)
Defendant’s Motion to Strike Plaintiff’s Third Amended Complaint (d/e
65) (Motion 65);
2)
Plaintiff’s Request for Leave to File Fourth Amended Complaint
(d/e 71) (Motion 71);
3)
Defendant’s Motion to Deem Admitted or, in the Alternative, to
Compel Full and Complete Responses to Defendant’s Second
Requests for Admission and Related Interrogatories and Requests
for Production of Documents (d/e 76) (Motion 76);
Page 1 of 39
4)
Plaintiff’s Motion for Leave to File Response to Defendant’s Motion to
Compel Admissions (d/e 81) (Motion 81);
5)
Defendant’s Unopposed Motion for Leave to File, in Excess of 15
Page Limit, its Response and Brief in Support of Response to
Plaintiff’s Motion for Leave to File Long Past Due Response to
Defendant’s Motion to Compel Responses to Defendant’s Admission
Requests (d/e 85) (Motion 85);
6)
Defendant’s Motion in Limine to Preclude Plaintiff from Calling Any
Expert Witnesses Except for Dr. Michael Abouassaly, Dr. Douglas
Henrich, Dr. Joann Milani, and Dr. Peter Hauslein and Limiting Their
Testimony to Any Medical or Evaluation Reports Generated by These
Medical Practitioners and Their Deposition Testimony up Through the
Present Date (d/e 66) (Motion 66);
7)
Plaintiff’s Motion to Extend Time to Respond to Defendant’s Motion in
Limine to Wednesday, May 21, 2014 (d/e 74) (Motion 74);
8)
Defendant’s Motion for Leave to File a Reply in Support of Its Motion
in Limine to Preclude Plaintiff from Calling any Expert Witnesses
Except for Dr. Michael Abouassaly, Dr. Douglas Henrich, Dr. Joann
Milani, and Dr. Peter Hauslein and Limiting Their Testimony to any
Medical or Evaluation Reports Generated by These Medical
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Practitioners and Their Deposition Testimony Up Through the
Present Date Instanter (d/e 77) (Motion 77);
9)
Defendant’s Motion to Strike August 4, 2014 “Plaintiff’s Exhibits in
Support of Response to Defendant’s Motion to Compel Admission”
(d/e 89) (Motion 89);
10)
Defendant’s Motion to Supplement Its May 23, 2014 Brief in Support
of Its Motion to Deem Admitted or, in the alternative, to Compel Full
and Complete Responses to Defendant’s Second Requests for
Admission and Related Interrogatories and Requests for Production
of Documents (d/e 82) (Motion 82);
11)
Supplement to Defendant’s Motion to Supplement Its May 23, 2014
Brief in Support of Its Motion to Deem Admitted or, in the alternative,
to Compel Full and Complete Responses to Defendant’s Second
Requests for Admission and Related Interrogatories and Requests
for Production of Documents (d/e 83) (Motion 83); and,
12)
Plaintiff’s Motion for Extension of Discovery and Entry of Scheduling
Order (d/e 67) (Motion 67).
The parties consented to have this matter heard before this Court.
Notice, Consent, and Reference of a Civil Action to a Magistrate Judge and
Reference Order entered March 24, 2014 (d/e 61).
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The Court will address the Motions in the order listed above. In order to set
the factual and procedural predicate for the ruling on the motions, it is necessary
to recite the progression of this litigation.
B.
PROGRESSION OF LITIGATION
The original Complaint in this matter was filed on November 2, 2011. The
Complaint consisted of an injury claim under the Federal Employers Liability Act,
45 U.S.C. 51 et seq. (FELA). The Plaintiff named as Defendants Pioneer
Railcorp, Inc. (Pioneer) and Decatur Junction Railway Co. (Decatur). The factual
basis of the Plaintiff’s claim was the alleged hearing loss the Plaintiff suffered as
a result of use of a sledge hammer to dislodge a piston in an engine block on
September 23, 2010.
On February 2, 2012, Plaintiff filed an Amended Complaint substituting
Pioneer Railroad Services, Inc. (Pioneer Services) for Pioneer Railcorp, Inc. as a
Defendant. Amended Complaint (d/e 7). The allegations of the Amended
Complaint remained substantially the same as the Complaint.
On March 6, 2012, Pioneer Services filed a Motion to Dismiss the
Amended Complaint Pursuant to Fed.R.Civ.P. 12(B)(6) (d/e 10) (Motion to
Dismiss). The Motion to Dismiss argued FELA imposed no liability on Pioneer
Services because it was not a common carrier railroad. Plaintiff did not respond
to the Motion to Dismiss. However, Plaintiff, Decatur and Pioneer Services,
stipulated that Pioneer Services was not an FELA employer of the Plaintiff on
Page 4 of 39
September 23, 2010. Based on that stipulation (d/e 15), the Court dismissed the
claims against Pioneer Services with prejudice and denied the Motion to Dismiss
filed by Pioneer Services as moot. Text Order entered 4/13/2012.
On May 10, 2012, a Scheduling Order (d/e 17) was entered. Under the
Scheduling Order, initial Rule 26 disclosures were due by May 31, 2012, and
Plaintiff’s expert disclosures were due by January 11, 2013.
On September 11, 2012, the Court allowed the parties’ Joint Motion to
Extend Time to Join Additional Parties to November 2, 2012 (d/e 22).
On December 5, 2012, the Court granted the parties’ Joint Motion to
Extend Pretrial Deadlines and Reschedule Trial Date (d/e 24).
On April 8, 2013, the Court allowed the parties’ Joint Motion to Extend
Pretrial Deadlines (d/e 26) and entered a Second Amended Scheduling Order
(d/e 28).
Plaintiff Chris Johnson died on May 21, 2013 and Sheryl Johnson was
substituted as the Plaintiff in her capacity as administrator of the estate of the
decedent. Text Order entered 7/30/2013.
On August 8, 2013, the Court entered its Third Order Extending Pretrial
Deadlines and Rescheduling of Trial Date (d/e 32).
On September 23, 2013, the Plaintiff filed a Motion to Alter April 13, 2012
Stipulation and Order and for Leave to File Second Amended Complaint (d/e 33)
(Motion 33) requesting the Court to vacate the April 13, 2012 Stipulation and
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Order Dismissing Pioneer Railroad Services and for leave to file a Second
Amended Complaint. Plaintiff indicated she had learned through discovery that
Pioneer Services may have been Chris Johnson’s employer when he was injured
at work on September 23, 2010. Motion 33, at 3-4. The Motion to Alter and
Amend also sought to amend the complaint to add a death claim. Pioneer
Services objected to the motion and Decatur did not respond.
Attached to Motion 33 was a proposed Second Amended Complaint
(d/e 33-1). The proposed Second Amended Complaint added Pioneer Railroad
Services, Inc. as a Defendant and added a death claim.
On March 28, 2014, the Court entered it’s Opinion (d/e 62) on Motion 33.
The Court had previously ordered the parties to file supplemental memoranda to
address whether Pioneer Services could be deemed a common carrier under
FELA (45 U.S.C. 57), “as a corporation charged with the duty of management
and operation of the business of a common carrier”. Pioneer Services filed a
supplemental memorandum. Plaintiff did not file a supplemental memorandum.
Based upon the Motion 33, Pioneer’s response, and the supplemental
memorandum filed by Pioneer, the Court denied Motion 33. The Court
determined, after review of the evidence presented and the applicable law, that
Pioneer Services was not a common carrier under FELA, Section 57.
Consequently, the Court denied the Plaintiff’s request to file an amended
complaint to put Pioneer Services back in the case as a Defendant. With regard
Page 6 of 39
to the additional death claims against Decatur, the Court noted that Decatur did
not object to the Motion to Alter and Amend and allowed the Plaintiff to add the
additional claims against Decatur “as set forth in the proposed Second Amended
Complaint” (emphasis added).
The Court ordered the Plaintiff to file, by April 11, 2014, a revised Second
Amended Complaint that contained the allowed additional claims, but did not
include Pioneer Railroad Services, Inc. as a Defendant.
Rather than filing a revised Second Amended Complaint, as directed by the
Court, four days after the deadline ordered by the Court, Plaintiff filed a Motion
for Leave to File Third Amended Complaint Instanter (d/e 64) (Motion 64) citing
an “implacable deadline” in an arbitration case as the reason for the late filing.
Motion 64 contained the following representation by Plaintiff’s counsel:
4.
Plaintiff has made the changes to the Second Amended Complaint
eliminating defendant Pioneer Railroad Services and is tendering the
Third Amended Complaint asserting the wrongful death claims
against Decatur Junction Railroad Company.
Based upon this representation, the Court allowed the Motion 64.
Unfortunately, the representation made by Plaintiff’s counsel was not true. The
Third Amended Complaint failed to remove Pioneer Services as a Defendant
from the body of the complaint. While Pioneer Services was removed from the
caption of the complaint, paragraphs 7-9, 22, 24, and 27 all continued to treat
Pioneer Services as a Defendant. Additionally, the prayer for relief requested
Page 7 of 39
that the Court award judgment against Defendants Pioneer Services and Decatur
“joint and severally”. The Plaintiff added the death claims to the Third Amended
Complaint. However, contrary to the Court’s Order, the Plaintiff changed the
form of the death claim included in the Third Amended Complaint by deleting
language contained in the proposed Second Amended Complaint and adding
language not contained in the proposed Second Amended Complaint.
Between September 23, 2013, the date of the filing of Motion 33, and the
ruling of the Court on that motion on March 28, 2014 (d/e 62), the Court entered
a Fourth Order Extending Pretrial Deadlines (d/e 45), a Fifth Order Extending
Some Pretrial Deadlines (d/e 49) (Fifth Order), and Sixth Joint Motion Extending
One Pretrial Deadline (Text Order entered 3/24/2014). The parties jointly filed
these requests to extend deadlines. The Fifth Order set deadlines for the
Plaintiff to identify all testifying experts and to provide Rule 26 expert reports by
April 1, 2014, and for the Defendant to identify testifying experts and provide
Rule 26 expert reports by June 1, 2014. The Fifth Order, as had the prior orders
extending deadlines, provided that each party would be limited to 20 depositions
not to exceed eight hours each.
The Sixth Joint Motion Extending One Pretrial Deadline (d/e 60) asked only
that the deadline for discovery of fact witnesses be extended until May 7, 2014,
instead of April 15, 2014 to complete fact discovery, including depositions. That
request was granted in a Text Order (3/24/2014). The Text Order indicated that
Page 8 of 39
no other dates contemplated by the prior discovery order entered on January 9,
2014 (d/e 49) would be affected. Thus it was contemplated by the parties and
stated by the Court that all other deadlines imposed by the Court’s Fifth Order
“will continue to be imposed and are otherwise effective”.
On April 22, 2014, counsel for Defendant filed Motion 65 to strike the Third
Amended Complaint. Motion 65 pointed out, as noted above, that the Third
Amended Complaint did not follow the order of the Court which directed a
revised Second Amended Complaint.
On May 12, 2014, the Plaintiff filed Motion 71 as part of a combined
Response to Defendant’s Motion to Strike Portions of Third Amended Complaint
and for Leave to File Fourth Amended Complaint. Attached to Motion 71 was a
proposed Fourth Amended Complaint.
On April 27, 2014, almost a month after the deadline for the Plaintiff to
identify testifying experts and provide Rule 26 expert reports, Defendant filed its
Motion 66 to bar certain expert testimony. The stated basis for Motion 66 was
that the Plaintiff had not provided expert disclosures as required by the Court
scheduling order and Federal Rule of Civil Procedure 26(a)(2). The deadline for
Plaintiff’s response to the motion was May 15, 2014.
On April 29, 2014, Plaintiff filed Motion 67 to extend discovery and modify
the Scheduling Order.
Page 9 of 39
On May 16, 2014, after expiration of the deadline to respond to Motion 66
to exclude certain experts, Plaintiff filed Motion 74 to extend the deadline to
respond to Defendant’s Motion 66 until May 21, 2014. On May 21, 2014, Plaintiff
filed her Response (d/e 75) to Defendant’s Motion 66.
On May 23, 2014, the Defendant filed Motion 76 to challenge the
sufficiency of Plaintiff’s answers to Defendant’s Rule 36 requests to admit.
Certain exhibits referred to in Motion 76 were not attached to the Motion. As a
consequence, seventy days after filing Motion 76, the Defendant filed Motions 82
and 83 to add the exhibits which were not attached to the original Motion 76.
On May 24, 2014, Defendant filed Motion 77 asking for leave to file a reply
to Plaintiff’s Response to Motion 66.
On June 13, 2014, Plaintiff filed Motion 79 to request an extension of time
until June 23, 2014 to respond to Motion 76.
On July 31, 2014, Plaintiff filed Motion 81 for leave to file a response to
Motion 76.
On August 4, 2014, Plaintiff filed “Plaintiff’s Exhibits in Support of Her
Response to Defendant’s Motion to Compel Admission” (d/e 84). This filing
contained exhibits which were not attached to the response attached to Plaintiff’s
Motion 81.
Page 10 of 39
On August 15, 2014, Defendant filed Motion 89 to strike the exhibits
contained in docket entry 84.
The motions described above will be discussed more fully below.
C.
MOTIONS 65 AND 71 ON AMENDMENTS TO THE COMPLAINT
1.
MOTION 65
Motion 65 asks to strike the Third Amended Complaint. As noted above,
the Third Amended Complaint filed by the Plaintiff did not conform with the
representation of the Plaintiff’s attorney that he had “made the changes to the
Second Amended Complaint eliminating Defendant Pioneer Railroad Services”.
Had Plaintiff’s counsel simply reviewed the proposed Third Amended Complaint
prior to filing it with her motion, it would have been obvious that the Third
Amended Complaint did not eliminate Pioneer. It appears the only modification
made to the proposed Second Amended Complaint with regard to Pioneer
Services was the elimination of its name in the caption.
Additionally, the order of the Court allowing the filing of a revised Second
Amended Complaint indicated that the Plaintiff was to file an amended complaint
containing the additional claim “as set forth in the proposed Second Amended
Complaint”. Again, the Plaintiff did not follow the Court’s order. Instead, the
Plaintiff omitted paragraphs contained in the proposed Second Amended
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Complaint and added additional language not contained in the proposed Second
Amended Complaint.
The request in Motion 65 to strike Plaintiff’s Third Amended Complaint is
allowed.
In Motion 65, the Defendant requests that the Plaintiff and her counsel be
sanctioned and requests the award of its attorney’s fees and costs incurred in
filing the Motion to Strike.
Rule 37 of the Federal Rules of Civil Procedure authorizes sanctions in
matters relating to discovery. The sanctions sought by the Defendant with
regard to striking the Third Amended Complaint do not involve a discovery
matter. Consequently, sanctions as requested by the Defendant with regard to
Motion 65 must be sought under Rule 11 of the Federal Rules of Civil Procedure
(Rule 11). Rule 11 specifically indicates that a motion for sanctions must be
made separately from any other motion and must describe the specific conduct
that allegedly violates Rule 11(b). If Defendant seeks sanctions under Rule 11,
such a motion should be filed separately. The motion, if filed, should specify in
detail the amount of reasonable expenses or attorney’s fees sought.
2.
MOTION 71
Plaintiff filed Motion 71 as part of a combined response to Motion 66 and a
request for leave to file a Fourth Amended Complaint. Motion 71 is denied.
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Plaintiff is ordered to file a revised Second Amended Complaint eliminating
Pioneer Railroad Services, Inc. as a Defendant and removing all references to
Pioneer Services and allegations against Pioneer Services indicating it is a
Defendant from the revised Second Amended Complaint. The revised Second
Amended Complaint shall also incorporate the additional claims the Defendant
set forth in the proposed Second Amended Complaint attached to Motion 33 (d/e
33-1). The revised Second Amended Complaint is ordered to be filed will be in
conformance with the March 28, 2014 Opinion of the Court (d/e 62) and shall be
filed within ten (10) days of the entry of this Opinion. The Defendant shall
respond to the Second Amended Complaint within fourteen (14) days of the filing
of the Second Amended Complaint.
Had counsel for the Plaintiff followed the order of the Court in the first
instance, it would have been unnecessary for the Plaintiff to have filed a Motion
to File Third Amended Complaint to be considered and ruled upon by the Court.
It would also have been unnecessary for the Defendant to file Motion 65 and
would likewise have been unnecessary for the Plaintiff to have filed Motion 71.
The failure of Plaintiff’s counsel to follow the order of the Court has unnecessarily
delayed and complicated this litigation.
D.
MOTIONS 76, 81, AND 85 ON PLAINTIFF’S RESPONSES TO REQUEST
TO ADMIT
The Defendant filed a second request for admissions, pursuant to Rule 36
of the Federal Rules of Civil Procedure. The request for admissions was
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accompanied by interlocking interrogatories and requests for production. The
interrogatories and request for production were only triggered by a denial of the
request for admission. The six requests for admission are as follows:
1)
2)
3)
4)
5)
6)
Admit that you, through your counsel, advised counsel for Defendant
that an autopsy of Chris Johnson would be performed by the county
medical examiner when Defendant’s counsel expressed an interest to
have an autopsy conducted by a privately retained pathologist.
Admit that you, through your counsel, advised that a private autopsy
was not necessary because an autopsy would be conducted by the
county medical examiner.
Admit that you, through your counsel, were advised that Defendant
would not seek a private autopsy based on the representation that
Defendant would be provided with a copy of the medical examiner’s
autopsy report.
Admit that you, through your counsel, failed to respond to multiple
requests for the report of the autopsy that was to have been
performed and ultimately advised Defendant that no autopsy was
conducted because you donated Chris Johnson’s organs to the Iowa
Medical Center.
Admit that you, through your counsel, advised Defendant’s counsel,
in response to Defendant’s counsel’s expressing interest in retaining
Chris Johnson’s body for a privately conducted autopsy that
exhumation would not be possible because the body was cremated.
Admit that you did not advise Defendant that no autopsy was done
until after the body was cremated.
In response to the request for admissions, the following objection was
asserted:
Discovery is required to be proportionate to the information sought.
Fed.R.Civ.Proc. 26(b)(2)(C)(iii). Plaintiff has no problem in providing
the information sought in the Request for Admission &
Interrogatories, but objects to the burdensome nature of the Request
for Admission & Interrogatories. Fed.R.Civ.Proc. 26(b)(1).
Page 14 of 39
Rather than responding to the requests for admission individually, the
Plaintiff submitted a two and one-half page narrative of facts. The narrative ends
with the following sentence: “If defendant disagrees with any of the statements,
plaintiff’s counsel will work on revisions to reach an agreed statement of facts.”
In response, Defendant filed Motion 76 to deem these matters admitted and to
compel a response.
Plaintiff’s response to Motion 76 was due June 9, 2014. On June 13,
2014, after the expiration of the deadline to file a response, Plaintiff’s counsel
filed Motion 79 for an extension of time. Motion 79 cited medical problems of
Plaintiff’s counsel and indicated that a physician’s note was attached to the
motion. No note was attached. Plaintiff’s counsel noted he had medical
problems, and if he felt better, would “file a response earlier”. Defense counsel
did not object to Motion 79. The Court, belatedly, granted the unopposed Motion
79 on July 8, 2014.
On July 31, 2014, twenty-three days after the Court granted Motion 79,
Plaintiff’s counsel filed Motion 81 for leave to file a response. In Motion 81, the
Plaintiff recited he had a one-day mediation and filed a brief in the Seventh
Circuit on July 17, 2014. Plaintiff’s counsel said he did not calendar the granting
of the motion and attached his proposed three-page response (d/e 81-1) to
Motion 81.
Page 15 of 39
The Plaintiff’s proposed response (d/e 81-1) was not timely filed and refers
to factual matters not raised in Plaintiff’s objections to the requests to admit,
seeks to add additional objections not previously made and indicates that Plaintiff
will later file excerpts of relevant depositions as exhibits to the response. No
exhibits were filed with the response. Plaintiff’s Motion 81 is denied.
In response to Motion 81, Defendant filed Motion 85 styled as an
unopposed motion for leave to file in excess of the 15 page limit in Local Rule
7.1(B)(4). Defendant’s lengthy and cumbersome title to Motion 85 is incorrect.
Defendant actually seeks to file a reply as the pleading challenges the Plaintiff’s
response to Motion 76. Local Rule 7.1(B)(3) specifically states that no reply to a
response to a motion is permitted. Likewise, simply because a brief in excess of
page limit is unopposed by adverse counsel, does not automatically permit the
party seeking the extended page brief to file the brief. In addition to these
factors, given the denial of the Motion 81, Motion 85 is moot. Therefore,
Defendant’s Motion 85 is denied.
Plaintiff stated one objection in her response to the Defendant’s Request to
Admit. She objected that discovery is required to be “proportionate” to the
information sought. The objection is overruled. The questions posed by the
Defendant, as set forth above, are not complicated. The information necessary
to admit or deny the requests to respond is within the knowledge of the Plaintiff
and her counsel. The interlocking interrogatories and request to produce only
Page 16 of 39
come into effect if there is a denial. The objection is insufficient to justify not
answering the requests for admission.
Rule 36 is clear regarding the form of answers to requests for admissions.
Rule 36(a)(4) provides if the matter is not admitted, the answer must specifically
deny it or state in detail why the answering party cannot truthfully deny it. A
denial must fairly respond to the substance of the matter. The Plaintiff’s narrative
response does not comply with the Rule and is an insufficient answer.
Rule 36(a)(6) provides that the requesting party may move to determine
the sufficiency of an answer or objection to an interrogatory and, unless the court
finds an objection justified, it must order that an answer be served. The Rule
further notes that on finding that an answer does not comply with Rule 36, the
court may either order that the matter is admitted or that an amended answer be
served.
Plaintiff is ordered to file an amended answer fully responding to the
original requests to admit in conformance with Rule 36 within ten (10) days of the
entry of this order. Plaintiff has had the opportunity to object to the requests to
admit when she filed her initial objection. No further objections shall be asserted.
In Motion 76, Defendant requests that the Court “award” Defendant its
costs and attorney’s fees “incurred in having to file and prosecute this Motion”.
Defendant’s motion correctly notes that an award of the moving parties’
expenses and attorney’s fees is provided for by Federal Rule of Civil Procedure
Page 17 of 39
37(a)(5). Rule 37(a)(5) (the Rule) provides that the Court may order payment of
reasonable expenses and attorney’s fees if the motion is granted. However, the
Rule mandates that the Court must not order the payment of reasonable
expenses, including attorney’s fees, if the movant filed the motion before
attempting in good faith to obtain the disclosure of discovery without court action.
Defendant’s motion contains no information that a good faith attempt was made
to obtain responses to the requests to admit without court action. Even though
the Defendant titled its motion, in the alternative, as a motion to compel, the
motion is considered by the Court to be a motion regarding the sufficiency of an
answer or objection made pursuant to Rule 36(a)(6). Even if the Defendant
deemed the motion partially a Motion to Compel, the scheduling orders entered
by the Court require that a Motion to Compel must contain the certification
required by Rule 37 that the parties met and conferred in an attempt to resolve
the discovery dispute. The Court denies the request for an award of costs and
attorneys fees.
E.
MOTIONS 66, 74, AND 77 ON BARRING EXPERT TESTIMONY
Motion 66 seeks to bar Plaintiff from presenting certain expert testimony.
Under the terms of the Fifth Order, the Plaintiff was to identify all the testifying
experts and provide Rule 26 expert reports by April 1, 2014. The Defendant was
to identify testifying experts and provide Rule 26 expert reports by June 1, 2014.
All parties were to identify rebuttal experts and provide rebuttal expert reports
Page 18 of 39
within 30 days after the other party was required to disclose his or her testifying
experts.
On March 23, 2014, the parties filed a Sixth Joint Motion Extending One
Pretrial Deadline (d/e 60) (Sixth Motion). That motion requested only that the
deadline for completing fact discovery, including lay witness depositions, be
extended to May 7, 2014. No request was made to extend any expert witness
discovery deadline in the Sixth Motion.
The legal standards regarding exclusion of witness testimony for failure to
follow discovery rules set forth by the Seventh Circuit Court of Appeals in David
v. Caterpillar, Inc., 324 F.3d 851, 856-857 (7th Cir. 2003) are as follows:
Rule 26 of the Federal Rules of Civil Procedure requires a party to
provide other parties with “the name and, if known, the address and
telephone number of each individual likely to have discoverable
information that the disclosing party may use to support its claims or
defenses ..., identifying the subjects of the information.” Fed.R.Civ.P.
26(a)(1)(A). Rule 26 also requires a party to supplement or amend its
disclosures and discovery responses if it learns that the information
disclosed or the response is “incomplete or incorrect and if the
additional corrective information has not otherwise been made known
to the other parties during the discovery process or in writing.”
Fed.R.Civ.P. 26(e)(1). To ensure compliance with these discovery
requirements, Rule 37 provides that “[a] party that without substantial
justification fails to disclose information required by Rule 26(a) or
26(e)(1) ... is not, unless such failure is harmless, permitted to use as
evidence at a trial ... any witness or information not so disclosed.”
Fed.R.Civ.P. 37(c)(1).
This court has stated that “the sanction of exclusion is automatic and
mandatory unless the sanctioned party can show that its violation of
Rule 26(a) was either justified or harmless.” Salgado v. Gen. Motors
Corp., 150 F.3d 735, 742 (7th Cir.1998). However, we also have
stated that “[t]he determination of whether a Rule 26(a) violation is
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justified or harmless is entrusted to the broad discretion of the district
court.” Mid–America Tablewares, Inc. v. Mogi Trading Co., Ltd., 100
F.3d 1353, 1363 (7th Cir.1996); see also Salgado, 150 F.3d at 739
(stating that a district court's ruling on a motion to exclude testimony
for noncompliance with Rule 26(a) is reviewed for an abuse of
discretion and “[u]nder this standard, we shall affirm the judgment of
the district court whenever we believe that the district court chose an
option that was among those from which we might expect a district
court reasonably to choose”). “A district court need not make explicit
findings concerning the existence of a substantial justification or the
harmlessness of a failure to disclose.” Woodworker's Supply, Inc. v.
Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999).
However, we have indicated that the following factors should guide
the district court's discretion: (1) the prejudice or surprise to the party
against whom the evidence is offered; (2) the ability of the party to
cure the prejudice; (3) the likelihood of disruption to the trial; and (4)
the bad faith or willfulness involved in not disclosing the evidence at
an earlier date. See Bronk v. Ineichen, 54 F.3d 425, 428 (7th
Cir.1995) (citing Spray–Rite Serv. Corp. v. Monsanto Co., 684 F.2d
1226, 1245 (7th Cir.1982)); see also Woodworker's Supply, Inc., 170
F.3d at 993.
Id. at 856, 857.
On October 1, 2012, in response to an interrogatory requesting the Plaintiff
to name expert witnesses, the Plaintiff identified the following witnesses and the
following topics on which they would testify:
Harold A. Rugh, to testify on “railroad practices, the custom of the
railroad industry for making repairs of locomotive engines, applicable
industry standards, the adequacy of the equipment provided Chris
Johnson at the time of his injury, and the ability of Johnson or any
comparable employee to safely perform the repairs;”
Dr. Douglas Henrich, Chris Johnson’s treating physician, to testify on
“[c]are and treatment of Chris Johnson for his hearing loss, cause of
hearing loss, nature and extent of injury, permanency, availability of
devices to therapy to improve condition, effect of hearing loss on his
ability to obtain employment;” and
Page 20 of 39
Dr. Michael Abouassaly, Chris Johnson’s treating physician, to testify
on “[c]are and treatment of Chris Johnson, physical and mental
condition before and after September 23, 2010 injuries. Care and
treatment of depression and alcohol abuse, diagnosis, causation of
depression and alcohol abuse, prognosis, nature and extent of injury,
permanency, anticipated time condition will continue, medications
and therapy available, medications and therapy prescribed.”
On October 28, 2013, the Plaintiff specifically identified Dr. Peter Hauslein
as an otolaryngolyst who examined Chris Johnson in relation to his railroad
disability benefits request. Although Dr. Hauslein was identified, he was not
disclosed as an expert. Dr. Joann Milani, a psychologist, was also identified
through discovery as a medical professional who examined Chris Johnson in
relation to his railroad disability benefits request. Dr. Milani was not disclosed as
an expert. Drs. Henrich, Abouassaly, Hauslein, and Milani have all been
deposed.
On April 27, 2014, Defendant filed Motion 66. Defense counsel seeks to
preclude the Plaintiff from calling any expert witnesses except for Drs.
Abouassaly, Henrich, Milani, and Hauslein. Further, the Defendant seeks to limit
their testimony to the medical evaluation reports generated by the physicians and
their deposition testimony.
Although not mentioned in the title of the Motion in Limine, the Defendant
also seeks to bar the Plaintiff from calling expert witness Harold Rugh. Harold
Rugh is an expert witness who must provide a written report under Rule
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26(a)(2)(B). No expert report was produced for Rugh. Additionally, his
qualifications were not produced within the deadline set in the Fifth Order.
Defendant also seeks to bar the testimony of Medical Examiner Dr.
Eugenio Torres. Dr. Torres is the Medical Examiner who signed the death
certificate of Chris Johnson.
On May 16, 2014, one day after the expiration of the deadline for filing a
response to Motion 66, the Plaintiff filed it’s Motion 74 to extend the time to
respond to Wednesday, May 21, 2014. That motion was not ruled upon by the
Court, however, Motion 74 is granted nunc pro tunc. On May 21, 2014, Plaintiff
filed her Response to Defendant’s Motion in Limine (d/e 75). On May 24, 2014,
Defendant filed Motion 77 for leave to file a reply. As Motion 77 noted, Central
District of Illinois Local Rule 7.1(B)(3) provides that replies are not permitted.
Defendant’s Motion 77 is denied.
Plaintiff now requests a new scheduling order with “workable” dates for the
expert witness disclosure and a trial date. The Plaintiff incorporates her
Memorandum in Support of Motion for Extension of Discovery & Entry of
Scheduling Order (d/e 68) with her Response to Defendant’s Motion in Limine
(d/e 75).
The Defendant notes that Plaintiff failed to produce any expert reports by
April 1, 2014. It is clear, given the disclosure made above by the Plaintiff, that a
written report was required for expert witness Harold Rugh. No Rule 26 written
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reports were required for Johnson’s treating physicians and the professionals
who examined him on behalf of the Railroad Retirement Board in connection with
his request for disability benefits. Fed.R.Civ.P. 26(a)(2)(B).
After the close of Plaintiff’s expert discovery on April 1, 2014, counsel for
the Plaintiff sent defense counsel an e-mail (d/e 66-1) indicating the expert
witnesses that Plaintiff planned to call at trial. Among those witnesses were Dr.
Henrich, Dr. Abouassaly, examining psychologist Joann Milani, and Dr. Eugenio
Torres, Des Moines County, Iowa, medical examiner. Additionally, Plaintiff’s
counsel indicated he planned to call Dr. Stephen Dinwiddie. However, Plaintiff’s
counsel indicated that he had not yet contacted Professor Dinwiddie as he was
awaiting the transcript of the second session of the deposition of the psychologist
Joann Milani. He indicated he planned to contact Dinwiddie after that deposition.
He then indicated, if Dr. Dinwiddie was not available, he would retain a similarly
qualified medical school professor of psychiatry. Plaintiff’s counsel then listed a
website address on which the Defendant could obtain
Dr. Dinwiddie’s information.
In the same e-mail, Plaintiff’s counsel also indicated that he did not intend
to call Dr. Hauslein. He indicated, after his examination of Dr. Hauslein, he
would revisit his decision on whether he should be called in the Plaintiff’s case.
In the same e-mail, Plaintiff’s counsel indicated he had seen nothing in the case
that required him to obtain an expert otolaryngologist. He indicated that he might
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be required to retain an otolaryngologist as a rebuttal witness. Defense counsel
indicated that he had never previously encountered the possibility of retention of
rebuttal witnesses.
The Plaintiff and Defendant entered into a stipulation and, pursuant to that
stipulation, the Court entered an Order on May 29, 2014 (d/e 78) (Order 78).
Order 78 sought to comply with the June 1, 2014 Defendant’s expert disclosure
deadline, which occurred while Defendant’s Motion 66 was pending. Order 78
provided that the Defendant file with the Judge’s law clerk its expert witness /
report disclosures, which were actually due on June 2, 2014, as June 1, 2014 fell
on a weekend.
Order 78 also provided if Defendant’s Motion 66 was granted, in whole or
in part, then defense counsel shall provide to Plaintiff’s counsel, immediately
after the ruling, copies of the same expert reports/disclosures submitted on June
2, 2014.
Order 78 further stated if Defendant’s Motion in Limine is denied, in whole
or in part, such that the Plaintiff is permitted to call additional experts, then the
expert reports/disclosures that have been retained by this Court’s Clerk shall be
returned to Defendant’s counsel, without disclosure to Plaintiff, so as to allow
Defendant to submit new revised reports/disclosures (if Defendant chooses) to
provide new opinions submitted by Plaintiff’s newly added experts.
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As noted above, Rule 37 of the Federal Rules of Civil Procedure provides
that “a party that without substantial justification fails to disclose information
required by Rule 26(a) or Rule 26(e)(1) ... is not, unless such failure is harmless,
permitted to use as evidence at a trial ... any witness or information not so
disclosed.” Federal Rule of Criminal Procedure 37(c)(1). David v. Caterpillar, Id.
The sanction of exclusion of evidence is “automatic and mandatory unless the
party to be sanctioned can show that violation of Rule 26(a) was either justified
or harmless’. NutraSweet v. Excel Engineering, 227 F.3d 776, 785-786 (7th Cir.
2000). In this case, the burden in on the Plaintiff to show that failure to disclose
the information sought to be barred is neither justified nor harmless.
Under the Fifth Order, the Plaintiff was to identify testifying experts and to
provide Rule 26 expert reports by April 1, 2014. The Fifth Order also provided
that the Defendant was to identify testifying experts and to provide expert reports
by June 1, 2014. The Fifth Order also specifically indicated that all parties shall
identify rebuttal experts and provide Rule 26 rebuttal expert reports within 30
days after the other party is required to disclose his or her testifying experts.
There was no extension of the expert witness deadline after the Fifth Order.
As noted above, the Plaintiff disclosed Drs. Douglas Henrich and Michael
Abouassaly in answers to interrogatories. Motion 66 also indicates that Plaintiff
identified Dr. Peter Hauslein and Dr. Joann Milani. All of those doctors have
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been deposed. Additionally, the parties’ filings indicate that Dr. Torres has been
deposed in a deposition lasting over seven hours.
Given the disclosure of the physicians and the opportunity to take their
depositions, it appears there is sufficient information provided regarding the facts
and opinions on which the physicians may testify. Rule 26(a)(2)(C). The
Defendant does not seek to completely bar the testimony of the physicians,
except Dr. Torres.
The terms of the Fifth Order regarding rebuttal witnesses and the Order
requested by the parties regarding the submission of the depositions of the
Defendant’s experts to the Court must be considered in ruling on Motion 66.
In response to Motion 66, Plaintiff references her memorandum in support
(d/e 68) of Motion 67 for extension of discovery and entry of a new scheduling
order. Plaintiff indicates a total of 25 depositions of extreme length have been
taken. Plaintiff indicates that one deposition took four days. All of the other
depositions took five to seven hours (d/e 68, pg 3). Plaintiff’s counsel stated that
defense counsel took the deposition of Johnson for four days. Plaintiff states
that Johnson had hearing problems. Plaintiff’s counsel indicates he did not want
to involve the Court, so no objection was made to the length of the deposition
(d/e 68, pg 7). With regard to the remaining depositions, the Fifth Order agreed
to by the parties provided that both the Plaintiff and Defendant could take 20
depositions each, not to exceed eight hours each. With the exception of the
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deposition of Johnson, neither the number of depositions, nor the length of time
for depositions set forth in the Fifth Order appears to have been exceeded.
Apparently, the parties contemplated, at the time the Fifth Order was put in
effect, that numerous and lengthy depositions would be required in the case.
The length and number of depositions provides no justification to Plaintiff’s
failures to timely disclose experts.
Local Rule 6.1 regarding extensions of time requires that any party seeking
an extension of time for any reason must file a motion for such extension before
the original deadline. Rule 6.1 also states that such motions must state the
amount of additional time requested. The time for disclosure of Plaintiff’s expert
witnesses in this case expired on April 1, 2014. The Plaintiff filed no motion for
extension of time prior to the expiration of the Plaintiff’s witness disclosure
deadline. Instead, in apparent response to Defendant’s Motion 66 filed on April
27, 2014, the Plaintiff filed her Motion 67 for extension of time on April 29, 2014,
and included no specific request for additional time in which to complete
discovery.
The Fifth Order provides a party shall identify rebuttal experts and provide
Rule 26 rebuttal expert reports within 30 days after the other party is required to
disclose testifying experts.
In this Court, as well as in most other courts, the general order of proof is
for the plaintiff to put on her case in chief by calling her witnesses. After plaintiff
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completes his case, the defendant follows with witnesses and other proof. In
defendant’s case in chief, the defendant may offer evidence in denial of the
plaintiff’s case, and also attempt to prove any affirmative defenses that it might
have. After the defendant rests, the plaintiff is entitled to present evidence in
rebuttal. 5 AM. JUR. Trials 505 (2014).
Motion 66 requests that the Plaintiff be barred from presenting any expert
testimony other than the testimony of Drs. Abouassaly, Henrich, Milani, and
Hauslein made in Plaintiff’s disclosures or the doctors’ depositions. If this relief is
granted as requested, it would deny Plaintiff her right to put on evidence to rebut
information presented by the Defendant’s experts in the Defendant’s case in
chief. It would also deny the Plaintiff the ability to review the Defendant’s expert
testimony and provide Rule 26 rebuttal expert reports within 30 days after
disclosure of the evidence from the testifying experts as set forth in the existing
scheduling orders.
Motion 66 is granted in part and denied in part.
With regard to the medical experts Drs. Abouassaly, Henrich, Milani, and
Hauslein, the Plaintiff may call them as witnesses in her case in chief, but their
testimony in Plaintiff’s case in chief is limited to subjects which were disclosed in
either the witness disclosures, identifications, or deposition testimony.
It appears Dr. Torres was not disclosed as an expert witness prior to the
expert discovery deadline. He was, however, identified as a witness in the
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Plaintiff’s April 11, 2014 e-mail (d/e 66-1) to defense counsel. He has been
deposed. Dr. Torres had been contacted by the Defendant, since the death of
Chris Johnson, and signed the death certificate of Chris Johnson. He was not
unknown to the Defendant. The Plaintiff may call Dr. Torres in her case in chief
but his testimony is Plaintiff’s case in chief is limited to that disclosed in his
deposition and the death certificate of Chris Johnson.
The testimony of proposed expert witness Harold A. Rugh is barred. No
expert report from Mr. Rugh was tendered prior to the expiration of the Plaintiff’s
discovery deadline for expert witnesses. From the material submitted by the
parties, Mr. Rugh’s CV was not tendered until after the deadline for disclosure of
witnesses had expired. Plaintiff identified Rugh as a railroad practices expert,
and indicated that Plaintiff’s counsel had talked to Mr. Rugh prior to disclosing
him in October of 2012. At that time, Plaintiff obtained his agreement to act as
an expert witness on his opinions once the entire information was obtained.
Plaintiff, in her disclosure, indicated Rugh’s opinion, based on the initial
information available, was that there was a departure from the standard of care.
Rugh had formed an opinion prior to the Plaintiff’s expert discovery cutoff.
Plaintiff states Mr. Rugh had opened a computer file prior to March 2014 and
would prepare his report upon receipt of information after the deposition of a
retired audiologist. The Plaintiff offers no explanation of why the deposition of
the audiologist was necessary prior to the preparation of a report by Rugh or why
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the deposition was taken on the day of the expert discovery cutoff. There is no
indication of why a report could not have been prepared by Rugh prior to the
discovery deadline, and supplemented after the taking of the deposition, which
was taken on the date of the Plaintiff’s expert discovery cutoff. The failure to file
a report for Rugh or seek an extension of the expert discovery deadline was
unjustified.
Counsel for Plaintiff represents that Rugh told him on April 22, 2014 that
his wife’s illness prevented him from working on the case. This occurred after
Plaintiff’s expert discovery cutoff date. In her memorandum in support of Motion
67 for extension of discovery, Plaintiff indicates she has a replacement for Rugh,
but the replacement needs time to review materials. Plaintiff presents no
justification why an extension on time for disclosure was not sought prior to the
expiration of the discovery deadline. Plaintiff’s counsel states he knew that a
deposition he believed was needed for Rugh’s opinions was being taken on April
1, 2014, but made no attempt to secure additional time for expert discovery.
Plaintiff may not call Rugh or his replacement in her case in chief.
Plaintiff supplies no time table for Dr. Dinwiddie, or the yet unnamed
professor of psychiatry. Plaintiff’s failure to either disclose Dr. Dinwiddie and the
unnamed professor before the discovery cutoff is also unjustified. Plaintiff may
not call Dr. Dinwiddie or a professor of psychiatry in her case in chief.
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Motion 66 requests an order precluding any expert witness except Drs.
Abouassaly, Henrich, Milani and Hauslein (d/e 66, pg 11 & 12). The Court
denies this request in part. Dr. Torres may testify in Plaintiff’s case in chief as
stated above. Additionally, the Plaintiff may disclose and call rebuttal witnesses
as provided in the Seventh Scheduling Order entered with this Opinion in this
case. Any rebuttal witness called by the Plaintiff must rebut specific facts or
opinions raised by the Defendant’s witnesses in the Defendant’s case in chief.
Plaintiff argues, since no trial date is set, there is ample time to extend
discovery. This argument infers that unless a trial date has been set, failure to
comply with the scheduling order is harmless. Failure to have a trial setting does
not mean disregarding the orders entered by the Court is harmless. Finwall v.
City of Chicago, 239 F.R.D. 494, 503 (NDIL, 2006); Finwall v. City of Chicago,
239 F.R.D. 504 (NDIL, 2006); Hard Surface Solutions, Inc. v. Sherwin-Williams
Co., 271 F.R.D. 612 (NDIL, 2010). Each of the above cases excluded expert
testimony for failure to comply with discovery deadlines, even though no trial
date had been set.
The Plaintiff apparently wants an unspecified extension of discovery
deadlines so she can disclose additional experts. As set forth above, the
Plaintiff’s counsel has repeatedly failed to follow the orders of the court, the
Federal Rules of Civil Procedure, and Local Rules. To let the Plaintiff essentially
“start over” with expert discovery would prejudice the Defendant and the Court.
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The Defendant would need to find and retain additional experts to counter the
“new” experts of the Plaintiff. This would add delay and expense to this litigation.
Opinions, reports, and identities of the “new” witnesses were not disclosed
within the existing expert deadlines. Further, Plaintiff’s failure to follow orders,
rules and deadlines in this case raises the issue of whether Plaintiff’s counsel will
follow the additional deadlines set for the discovery in this case. The ability of
the Defendant to cure the prejudice of Plaintiff’s failure to follow the deadlines set
would necessarily require potentially lengthy extensions of this litigation in setting
deadlines to accommodate disclosure and response of Plaintiff’s “new” experts.
U.S. Magistrate Judge Jeffrey Cole in Finwall v. City of Chicago, 239
F.R.D. 494, 503 (NDIL, 2006), thoughtfully articulated the need for adherence to
discovery rules and deadlines. Magistrate Judge Cole stated as follows:
Deadlines such as those envisioned by Rule 26(a)(2)(B) and 37(c)(1)
are essential to the maintenance of a smooth and orderly flow of
cases. Harris, 102 F.3d at 1433; Golden Elevator, 27 F.3d at 302. In
the instant case, the plaintiff's counsel “knew of the deadlines
established by the court but chose to ignore them.” Castro v. Board of
Education of the City of Chicago, 214 F.3d 932, 934 (7th Cir.2000). If
litigants are allowed to disregard deadlines, as has the plaintiff's
counsel in this case, the necessary advantages that deadlines secure
will cease to exist, and court scheduling orders will become
meaningless. Spears v. City of Indianapolis, 74 F.3d 153, 158 (7th
Cir.1996). Procrastinators (to say nothing of those seeking some
illicit tactical advantage) will simply be motivated not to comply with
schedules carefully set by courts and announced with a kind of
unambiguous finality Judge Manning expressed in this case.
Compare, High Country Home Health, Inc. v. Thompson, 359 F.3d
1307, 1311 (10th Cir.2004)(McConnell, J.). “Judges must be able to
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enforce deadlines.” Parker v. Freightliner Corp., 940 F.2d 1019,
1024 (7th Cir.1991).
What the Seventh Circuit said in Spears v. City of Indianapolis,
supra., bears repeating: ‘Deadlines, in the law business, serve a
useful purpose and reasonable adherence to them is to be
encouraged. As the Fifth Circuit noted in Geiserman v. MacDonald,
893 F.2d 787, 791 (1990): ‘[D]elays are a particularly abhorrent
feature of today's trial practice. They increase the cost of litigation, to
the detriment of the parties enmeshed in it; they are one factor
causing disrespect for lawyers and the judicial process; and they fuel
the increasing resort to means of non-judicial dispute resolution.
Adherence to reasonable deadlines is critical to restoring integrity in
court proceedings.’ 74 F.3d at 158.
It is no answer to say that the plaintiff may be disadvantaged by his
counsel's conduct. That is true in every case where exclusion is
warranted under Rule 37 or any other rule specifying the
consequences of acts or omissions by a party's lawyer. Those rules
properly recognize that clients are properly responsible for their
counsel's conduct and it is to them that they must look in the event of
omissions. Even more importantly, they recognize that there are
societal interests in the functioning of the judicial system that
transcend the immediate interests of a party in a particular case.
The Court agrees with Magistrate Cole’s Opinion.
Counsel are expected to adhere to discovery orders and discovery rules
even though a trial date is not set. Plaintiff’s counsel in this case, in the
instances set forth above, has failed to do so.
In summary, Defendant’s Motion 66 is allowed in part and denied in part as
follows:
1)
Drs. Abouassaly, Henrich, Milani, Hauslein, and Torres may testify in
Plaintiff’s case in chief subject to the limitations set forth above.
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2)
Plaintiff is barred from presenting any other expert testimony or
opinion in her case in chief, and specifically barred from presenting
testimony and opinion from Harold Rugh, Dr. Stephen Dinwiddie, the
unnamed psychiatry professor, or any replacement or substitute for
any of them.
3)
Plaintiff may call proper rebuttal witnesses if timely disclosed as
required by the Scheduling Order, Local Rules of this Court, and the
Federal Rules of Civil Procedure. Any rebuttal expert’s testimony
and opinions will be limited to rebuttal as explained above.
4)
Defendant’s request for reasonable costs and attorney’s fees is
denied as set forth above.
F.
MOTION 89 TO STRIKE EXHIBITS
Motion 89 seeks to strike exhibits (d/e 84) filed in support of Motion 81.
The chronology of Plaintiff’s filing her Motion 81 for leave to file response is set
forth above. The Plaintiff sought an extension to file her motion for leave to file a
response after the expiration of the filing deadline in violation of Local Rule 6.1.
The Plaintiff’s motion for extension was filed over 38 days after her last
requested deadline for filing her response and 20 days after the Plaintiff was
notified the Court had allowed the prior motion for extension. The reasons given
by the Plaintiff’s counsel for the untimely filing of her motion for extension do not
justify the late filing of her proposed three-page response. The Court, therefore,
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denied Motion 81 above. Plaintiff filed exhibits to the proposed response (d/e 84)
after the proposed response (d/e 81-1) was filed. Local Rule 7.1 provides that
supporting documents be filed with a motion or response. Plaintiff’s filing of the
exhibits violates the Rule. The exhibits (d/e 84) are ordered stricken from the
record. Consequently, Defendant’s Motion 89 to strike exhibits is denied as
moot.
G.
MOTIONS 82 AND 83 TO FILE SUPPLEMENTS
Seventy days after filing its brief in support of its Motion 76, the Defendant
filed a motion to substitute pages in the brief and filed exhibits to the brief which
had not been attached. Local Rule 7.1 provides that supporting documents be
filed with the motion or response. Proofreading the brief when it was filed would
have revealed there were blank exhibit numbers in the brief and that the exhibits
were not attached. Both Motions 82 and 83 to supplement the briefing are
denied.
H.
MOTION 67 REQUEST FOR REVISED SCHEDULING ORDER
The Plaintiff’s Motion 67 is allowed in part. The request for a new
Scheduling Order is allowed. The remainder of Motion 67 is denied. The Court
enters the following Seventh Scheduling Order extending certain discovery and
some pretrial deadlines.
The Court orders that the Defendant provide to the Plaintiff copies of the
expert reports/disclosures submitted to the Court within 10 days of the entry of
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this Order.1 Defendant may submit additional or revised reports dealing only with
testimony of and the opinions expressed by Dr. Torres. The Court will retain the
reports/disclosures submitted to the Court by the Defendant.
The Plaintiff indicates in her response (d/e 75) to Defendant’s Motion 66
that the depositions of Brent Neely and Diana Neely were set on March 11, 2014,
but were cancelled due to Mrs. Neely’s recovery from a stroke. The parties may
complete these depositions within the time frames set forth below.
The Court orders that the pretrial deadlines set forth below extending
various deadlines and setting pretrial and trial dates are as follows:
SEVENTH SCHEDULING ORDER
1)
Defendant shall, on or before September 5, 2014, provide to the
Plaintiff copies of its Rule 26 expert reports/disclosures which were
previously provided to the Court;
2)
Any additional or revised reports regarding Dr. Torres testimony shall
be disclosed by the Defendant on or before September 24, 2014;
3)
Plaintiff shall depose the experts disclosed by Defendant by
November 7, 2014;
4)
Plaintiff shall identify rebuttal experts, if any, and provide Rule 26
rebuttal experts reports/disclosures by December 22, 2014; provided
1
Order 78 is incapable of implementation as drafted by the parties. The
Defendant’s Motion 66 is both granted in part and denied in part.
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however, that rebuttal witnesses’ reports and opinions must address
only issues raised by the Defendant’s reports/disclosures or
deposition testimony;
5)
Defendant shall depose Plaintiff’s rebuttal expert witnesses’ by
February 5, 2015;
6)
The depositions of Brent and Diana Neely may be taken and shall be
completed by December 31, 2014;
7)
Paragraphs 3, 7, and 8 of the Fifth Order remain in effect;
8)
All dispositive motions shall be filed by March 9, 2015;
9)
Any remaining depositions necessary to preserve testimony for trial
under the Court’s Opinion of January 21, 2014 (d/e 54) shall be taken
between May 28, 2015 and June 12, 2015;
10)
Final pretrial conference in this matter is set Wednesday, June 3,
2015, at 10:00 a.m. before U.S. Magistrate Judge Tom SchanzleHaskins. The parties are required to follow Local Rules as to the
preparation, form and attachments to the pretrial order;
11)
Jury trial is set Monday, June 15, 2015 at 9:00 a.m. before Judge
Schanzle-Haskins.
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CONCLUSION
IT IS THEREFORE ORDERED, pursuant to the rulings as set forth above:
a)
Defendant’s Motion to Strike (d/e 65) is allowed;
b)
Defendant’s Motion in Limine (d/e 66) is allowed in part and denied in
part;
c)
Plaintiff’s Motion for Extension of Time (d/e 67) is allowed in part and
denied in part;
d)
Plaintiff’s Request for Leave to File Fourth Amended Complaint (d/e
71) is denied;
e)
Plaintiff’s Motion to Extend (d/e 74) is allowed nunc pro tunc to May
21, 2014;
f)
Defendant’s Motion Regarding the Sufficiency of a Rule 36 Answer or
Objection (d/e 76) is allowed in part and denied in part;
g)
Defendant’s Motion for Leave to File Reply (d/e 77) is denied;
h)
Plaintiff’s Motion for Leave to File Response (d/e 81) is denied;
I)
Defendant’s Motion to Supplement (d/e 82) is denied;
j)
Defendant’s Supplement to Motion to Supplement (d/e 83) is denied;
k)
Defendant’s Unopposed Motion to File a Reply in Excess of Local
Rule Page Limit (d/e 85) is denied; and,
l)
Defendant’s Motion to Strike Exhibits (d/e 89) is denied as moot.
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IT IS FURTHER ORDERED that the Court will not liberally grant extensions
of the deadlines and settings listed above.
ENTERED this 20th day of August, 2014.
______s/ Tom Schanzle-Haskins_______
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE
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