Fields v. The Allstate Corporation et al

Filing 26

MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 5/15/2012. (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RONA FIELDS,
PLAINTIFF,
v.
THE ALLSTATE CORPORATION,
et al.

DEFENDANTS.

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Civil Action No. CBD-11-653

MEMORANDUM OPINION
Before this Court is Defendant Allstate Insurance Company’s Motion For Summary
Judgment (ECF No. 19) (the “Motion”). The Court has reviewed the Motion, related briefing,
and applicable law. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the
reasons presented below, the Court DENIES the Motion.
FACTUAL AND PROCEDURAL BACKGROUND
The parties do not dispute that Plaintiff and Defendant Ramatu Kamara were involved in
a motor vehicle accident on May 28, 2008. Mem. in Supp. of Mot. 2; Pl.’s Opp’n Mem. Ex. 1.
The parties do not dispute that Plaintiff has sued Defendants for injuries that she claims were
caused by the accident. Mem. in Supp. of Mot. 3; Pl.’s Opp’n Mem. Ex. 1. The parties dispute
whether Plaintiff’s injuries were in fact caused by the accident or by pre-existing conditions. See
Mem. in Supp. of Mot. 5-6, 6 n.1; Pl.’s Opp’n Mem. Ex. 1.
On August 19, 2011, Plaintiff served on Defendant The Allstate Corporation a/k/a, t/a,
and d/b/a The Allstate Insurance Company (“Allstate”) Plaintiff’s answers to Allstate’s
Interrogatories. See Mem. in Supp. of Mot. Ex. 1. Pursuant to the amended Scheduling Order,
Plaintiff was required to serve her Rule 26(a)(2) disclosures on Allstate by December 24, 2011,
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and Allstate was required to serve its 26(a)(2) disclosures on Plaintiff by January 23, 2012.
Discovery closed on February 21, 2012, and the dispositive pretrial motions deadline was March
14, 2012.
DISCUSSION
Rule 56 of the Federal Rules of Civil Procedure provides that a “court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court
views “facts and reasonable inferences in the light most favorable to the non-moving party.”
Dulaney v. Packaging Corp. of America, 673 F.3d 323, 330 (4th Cir. 2012); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “A genuine question of material fact exists
where, after reviewing the record as a whole, a court finds that a reasonable jury could return a
verdict for the nonmoving party.” Dulaney, 673 F.3d at 330 (citing Newport News Holdings
Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011); Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996)).
Here, the parties clearly dispute material facts – whether Plaintiff suffered damages from
the automobile accident in question and the extent of Plaintiff’s damages. Plaintiff asserts that
she “claims injuries due to the motor vehicle accident;” whereas Allstate argues that the injuries
of which Plaintiff complains preexisted the accident and infers that an accident of this type
would not cause some of her claimed injuries. Compare Pl.’s Opp’n Mem. 1, Ex. 1 with Mem.
in Supp. of Mot. 3, 5-6.
Allstate argues that because Plaintiff did not timely identify any experts to testify as to
her alleged injuries, she cannot prove causation or her damages. See Mem. in Supp. of Mot. 1-2.
Therefore, Allstate concludes, “there is no dispute of fact on the issue of Plaintiff’s damages, and

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Defendant Allstate is entitled to summary judgment.” Id. at 2. Allstate confuses the issues of
whether Plaintiff can prove her case at trial and whether the parties dispute any material facts.
The parties admit that there is a dispute over the two material facts noted above.1
However, Defendant is correct that Plaintiff did not timely identify her experts in
accordance with the Rules and amended Scheduling Order. The amended Scheduling Order
required Plaintiff to disclose her expert witnesses by December 24, 2011. The type of disclosure
depended on whether Plaintiff’s experts were witnesses “retained or specially employed to
provide expert testimony in the case.” Fed. R. Civ. P. 26(a)(2)(B). If Plaintiff retained or
specially employed experts for this case, Plaintiff was required to provide expert reports with her
expert disclosures. Id. If Plaintiff did not retain or specially employ experts for this case,
Plaintiff was required to provide with each expert disclosure “(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.” Fed. R. Civ. P.
26(a)(2)(C).
Plaintiff admits that she “substantially complied with the requirement of identifying an
expert witness,” Pl.’s Opp’n Mem. 7 (emphasis added), and explains that she did not provide
complete expert disclosures because she was proceeding in this case pro se. Id. at 6. In response
to interrogatory 14, Plaintiff identified her treating physicians; and in response to interrogatory
23, which sought the identification of all experts, Plaintiff “reserve[d] the right to call any and all
of her treating physicians as expert witnesses in this case and to testify on all matters relating to

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Normally, the nonmoving party is required to provide evidence of the factual disputes. See
Anderson, 477 U.S. at 250 (“when a properly supported motion for summary judgment is made,
the adverse party ‘must set forth specific facts showing that there is a genuine issue for trial.’”
(footnote omitted)). Because the parties admit that there is a dispute over the cause of Plaintiff’s
injuries, however, the Court will not fault Plaintiff for her failure to provide such evidence.
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her care, including the cause of the injuries for which she makes claim.” Mem. in Supp. Mot. 56, 9.
The Court accepts Plaintiff’s claim that her treating physicians are “hybrid witnesses,”
and so Rule 26(a)(2)(C) applies. See Sullivan v. Glock, Inc., 175 F.R.D. 497, 500-01 (D. Md.
1997). However, Plaintiff’s bare and non-specific interrogatory responses do not satisfy the
Rule’s disclosure requirements. Further, the fact that Plaintiff was without counsel after
December 1, 2011, see Order (ECF No. 15), is irrelevant. Plaintiff had months prior to that date,
during which time she had counsel, to serve proper expert disclosures.
Should a party fail to timely provide adequate expert disclosures, Rule 37(c)(1) provides
that “the party is not allowed to use that information or witness to supply evidence on a motion,
at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R.
Civ. P. 37(c)(1). In addition or alternatively, on motion the Court “may order payment of the
reasonable expenses, including attorney’s fees, caused by the failure; . . . may inform the jury of
the party’s failure; and . . . may impose other appropriate sanctions.” Id. The advisory
committee notes to Rule 37(c)
emphasize that the ‘automatic sanction’ of exclusion ‘provides a
strong inducement for disclosure of material that the disclosing
party would expect to use as evidence.’ Fed. R. Civ. P. 37(c)
advisory committee note (1993). The alternative sanctions
referenced in the rule are primarily intended to apply when a party
fails to disclose evidence helpful to an opposing party. See 7
James Wm. Moore et al., Moore's Federal Practice §§ 37.60[2][b],
37.61 (3d ed. 2002). This is because ‘[p]reclusion of evidence is
not an effective incentive to compel disclosure of information that,
being supportive of the position of the opposing party, might
advantageously be concealed by the disclosing party.’ Fed. R. Civ.
P. 37(c) advisory committee note (1993).
Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595 n.2 (4th Cir.
2003) (alteration in original).
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The party who fails to timely disclose her expert or expert report bears the burden to
“demonstrate substantial justification for her failure to comply with Rule 26(a)(2)(B).” Carr v.
Deeds, 453 F.3d 593, 604-05 (4th Cir. 2006). The Court has “‘broad discretion to determine
whether a nondisclosure of evidence is substantially justified or harmless.’” Id. at 602 (quoting
Southern States, 318 F.3d at 597). The Fourth Circuit has held
that in exercising its broad discretion to determine whether a
nondisclosure of evidence is substantially justified or harmless for
purposes of a Rule 37(c)(1) exclusion analysis, a district court
should be guided by the following factors: (1) the surprise to the
party against whom the evidence would be offered; (2) the ability
of that party to cure the surprise; (3) the extent to which allowing
the evidence would disrupt the trial; (4) the importance of the
evidence; and (5) the nondisclosing party's explanation for its
failure to disclose the evidence.
Southern States, 318 F.3d at 597.
Although Plaintiff has not presented an adequate reason for failing to properly disclose
these experts, the Court does not deem it appropriate to strike them at this time. First, Allstate
should not be surprised that Plaintiff seeks to call her treating physicians to testify at her trial. In
August 2011, Plaintiff identified them in discovery as potential experts, and Allstate was free to
depose them before discovery closed in February 2012. The Court understands that Allstate may
have decided not to depose these witnesses, expecting to argue that they should be excluded from
trial for Plaintiff’s failure to properly designate them as expert witnesses.
Second, Plaintiff can cure her failure to properly disclose these witnesses. Plaintiff can
make these physicians available for depositions. The Court can give Allstate the opportunity to
designate its experts to opine on Plaintiff’s injuries and the cause(s) of those injuries. Plaintiff
can then have the opportunity to depose Allstate’s new expert(s).

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Third, allowing the new evidence would not disrupt the trial. Trial has not been
scheduled. This situation is not one in which a party is seeking to admit new expert opinions on
the eve of trial. The parties have time to conduct additional discovery before trial.
Finally, the evidence is important to Plaintiff’s case. The extent of Plaintiff’s damages,
and whether the accident caused her damages, are critical issues in this case. Plaintiff should be
permitted to call her treating physicians to testify to these topics. However, the Court will not
permit Plaintiff to designate experts other than those disclosed in her interrogatory responses.
Further, each of those experts may only base his opinions on “information learned during the
actual treatment of the patient [Plaintiff] – as opposed to . . . [information] subsequently supplied
by an attorney [or Plaintiff] involved in litigating [this] case.” Sullivan, 175 F.R.D. at 501.
CONCLUSION
Based on the foregoing, the Court DENIES the Motion. Within ten (10) calendar days of
the date of this Memorandum Opinion and the accompanying Order, Plaintiff must submit to
Allstate proper expert disclosures per Rule 26(a)(2)(C) and supplement her answers to
interrogatories. After receipt of Plaintiff’s expert disclosures, Allstate shall have sixty (60)
calendar days to designate its experts and provide expert disclosures as required by Rule
26(a)(2)(B). Allstate shall have forty-five (45) calendar days from the date of receipt of
Plaintiff’s disclosures to depose Plaintiff’s experts. Plaintiff shall have thirty (30) calendar days
after receipt of Allstate’s expert designation(s) to depose Allstate’s new expert(s). Each
deposition is limited to one (1) day without further leave of Court.

May 15, 2012

/s/
Charles B. Day
United States Magistrate Judge

CBD/mkh

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