Ratcliff v. City of Red Lodge, Department of Police et al
ORDER granting 35 Motion to Strike ; granting 27 Motion for Leave to File Signed by Jeremiah C. Lynch on 10/29/2013. (TXB, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
CITY OF RED LODGE, DEPARTMENT
OF POLICE, a Political Subdivision of
the State of Montana, and Red Lodge
Police Officer AL STUBER,
This action has its genesis in a July 2, 2011, encounter between Plaintiff
Dwight Ratcliff and Defendant Al Stuber in his capacity as a police officer with
the City of Red Lodge, Montana. Ratcliff alleges Officer Stuber employed
excessive force in effecting his arrest, causing him to suffer both physical and
emotional injuries. Ratcliff advances a claim under 42 U.S.C. § 1983 for violation
of his federal constitutional rights and claims for relief under Montana
constitutional, statutory, and common law.
The matter is presently before the Court upon the following two motions:
Plaintiff Ratcliff’s motion requesting leave to serve – beyond the
deadline established by the Court’s Federal Rule of Civil Procedure
16 scheduling order – a Rule 26(a)(2)(B) report by an expert in law
enforcement practices; and
Defendants’ motion requesting the Court to “strike” Ratcliff’s Rule
26 Supplemental Disclosure pertaining to the opinions’ of Ratcliff’s
For the reasons detailed below, both motions are granted.
The Court’s Rule 16 scheduling order entered on December 11, 2012,
established a deadline of May 3, 2013, for the disclosure of liability experts.
Ratcliff – represented at the time by Garth S. McCarty – did not serve any expert
witness disclosures by the May 3, 2013, deadline. The Defendants timely served a
report by their retained law enforcement practices expert.
On May 17, 2013, Robert L. Stephens, Jr., entered his appearance for
Ratcliff in substitution of Mr. McCarty.1 Shortly thereafter, on June 7, 2013,
Ratcliff filed a motion requesting leave to submit a Rule 26(a)(2)(B) report of his
law enforcement practices expert. Appended to Ratcliff’s motion was a document
prepared by Ratcliff’s counsel that summarized the opinions on law enforcement
The Court notes, for purposes of completeness, that Ratcliff initially filed a
notice of Mr. Stephens’ appearance on May 9, 2013. But because the notice of
substitution did not comply with Local Rule 83.3(a), Ratcliff was advised that the
substitution would not be effective until he complied with Local Rule 83.3(a).
practices expert, John L. Sullivan, was expected to testify and stated that
Sullivan’s final report had not been completed. On June 9, 2013, Ratcliff filed
Sullivan’s final report.
Subsequently, on June 20, 2013, Ratcliff filed a document entitled
“Plaintiff’s Rule 26 Supplemental Disclosure”. The document disclosed Ratcliff’s
treating medical personnel – physician assistant Douglas Whitehead and physician
Bradley Fuller. It is important to note that the disclosure stated generally that
these individuals would testify in conformity with their respective medical records
pertaining to Ratcliff. As to Whitehead, the disclosure also said that he would
express the opinion that the symptomology he observed on examination of Ratcliff
was “consistent with the events giving rise to the Plaintiff’s claims.” As to Dr.
Fuller, the disclosure stated he would express the opinion that “the incident of July
2, 2011, is more probable than not, the result of the interaction between Mr.
Ratcliff and Officer Stuber on July 2, 2011.” (Doc. 34, at 2).
On July 23, 2013 – a point in time after the Defendants filed their motion to
strike – Ratcliff filed a second disclosure with respect to Dr. Fuller. (Doc. 41).
The disclosure incorporated a letter from Dr. Fuller dated July 15, 2013, wherein
he states, in effect, that Ratcliff’s “underlying chronic medical condition” was
exacerbated by the “extreme force” used by Stuber in effecting Ratcliff’s arrest.
Against this backdrop, the Court turns to address the merits of the parties’
Plaintiff’s Motion for Leave to File an Untimely Fed. R. Civ. P.
Because Ratcliff’s motion requesting leave to file a Rule 26(a)(2)(B) report
with respect to law enforcement practices expert comes after the May 3, 2013,
deadline for disclosure of Plaintiff’s experts, the Court views the motion as a Rule
16(b)(4) motion for modification of the scheduling order. Under Rule 16(b)(4),
Ratcliff must show that good cause exists to modify the scheduling order.
Rule 16(b)(4)’s “good cause” standard primarily considers the diligence of
the party seeking modification. Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 609 (9th Cir. 1992). Good cause exists if the pretrial schedule cannot
“reasonably be met despite the diligence of the party seeking the extension.”
Johnson, 975 F.2d at 609 (quoting Fed. R. Civ. P. 16 Advisory Committee’s Notes
(1983 Amendment)). “If the party seeking a modification ‘was not diligent, the
inquiry should end’ and the motion to modify should not be granted.” Zivkovic v.
Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting
Johnson, 975 F.2d at 609). The Rule 16(b)(4) “good cause” standard, of course,
applies to requests to modify the scheduling order for purposes of extending or
reopening an expert disclosure deadline. See Wong v. Regents of the University of
California, 410 F.3d 1052, 1060 (9th Cir. 2005); Russell v. Lorillard, Inc., 2005
WL 1140018, at 1 (9th Cir. 2005); Capitol Sprinkler Inspection, Inc. v. Guest
Services, Inc., 630 F.3d 217, 226 (D.C. Cir. 2011).
In applying the Rule 16(b)(4) “good cause” standard, the Court must also
take into consideration Fed. R. Civ. P. 37(c)(1), which provides in relevant part:
If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at trial, unless the failure
was substantially justified or is harmless.
“Rule 37(c)(1) is a ‘self-executing’, ‘automatic” sanction designed to provide a
strong inducement for disclosure.” Goodman v. Staples The Office Superstore,
LLC, 644 F.3d 817, 827 (9th Cir. 2011). “The only exceptions to Rule 37(c)(1)’s
exclusion sanction apply if the failure to disclose is substantially justified or
harmless.” Goodman, 644 F.3d at 827.
In Wong, the Ninth Circuit effectively addressed the interplay between
Rules 16(b) and 37(c)(1) as they apply to the late disclosure of an expert witness.
The court found that the trial court did not abuse its discretion in excluding
witnesses not identified by the deadlines established in the court’s Rule 16
scheduling order. Wong, 410 F.3d at 1060. In so doing, the court noted that
“[d]eadlines must not be enforced mindlessly” because a good reason may exist to
permit an identification of additional witnesses after the established deadline.
Wong, 410 F.3d at 1060. One such reason might be that the necessity of the
witness could not have been reasonably anticipated prior to the time the deadline
elapsed. But because Wong had no good reason for late disclosure of the
additional witnesses, the court found the district court was justified in excluding
the additional witnesses under authority of Rule 16(b). Wong, 410 F.3d at 1060.
The court then proceeded to address Wong’s argument that the court’s
denial of his request to add expert witnesses violated Rule 37(c)(1). Wong, 410
F.3d at 1060. The court first concluded that because Wong had no good reason for
failing to comply with the expert disclosure deadline, his failure was “without
substantial justification” within the contemplation of Rule 37. Wong, 410 F.3d at
1060. And it found that the tardy identification was not harmless because
allowing additional witnesses would have disrupted the schedule implemented by
the court. Wong, 410, F.3d at 1060.
Following the analytical framework of Wong, the Court finds that Ratcliff
has not established the existence of “good cause” to extend the deadline for the
disclosure of expert witnesses. Ratcliff’s prior counsel was simply not diligent in
meeting the expert disclosure deadline. Nor does any good reason exist that
would justify allowing Ratcliff to identify a law enforcement practices expert after
the established deadline. Ratcliff does not suggest that it was not reasonable to
anticipate from the outset that the opinions of a law enforcement practices expert
might be needed in the case. And the mere substitution of counsel, standing alone,
is not a good reason to extend the expert witness deadline.
The issue determinative of Ratcliff’s motion is whether allowing the late
disclosure of his law enforcement practices expert is “harmless” within the
meaning of Rule 37(c)(1). Ratcliff, as the party seeking to avoid Rule 37's
exclusionary sanction bears the burden of proving harmlessness. Yeti by Molly
Ltd., 259 F.3d at 1107. The Court finds Ratcliff has sustained his burden.
First, the substance of the law enforcement practices expert’s opinion was
disclosed on June 7, 2013, approximately one month beyond the May 3, 2013,
disclosure deadline – not an extreme delay. (Doc. 27-1). Second, the subject
matter of the expert’s opinion testimony is hardly complex – he merely posits the
opinion from his subjective review of a video/audio recording of the encounter
that Officer Stuber used excessive force.2 Third, allowing the late disclosure does
It is important to note that nearly the entire encounter between Ratcliff and
Stuber was video/audio recorded by the video recorder mounted on Stuber’s
not disrupt the Court’s overall schedule for disposition of this action. Finally, the
late disclosure does not gain Ratcliff an unfair advantage.
In opposing Rattcliff’s motion, Stuber claims he will be prejudiced by the
late disclosure because Ratcliff was able to “provide a report after reviewing the
disclosure of Defendants.” (Doc. 33, at 13). But the fact of the matter is that the
best evidence of what occurred between Ratcliff and Stuber is the video/audio
recording of the encounter. At the end of the day, Ratcliff will hope to have his
expert posit the opinion that what the jurors observe on the recording is the use of
excessive force – while Stuber’s expert will posit the opinion that what the jurors
observe on the recording is the use of reasonable force.
The discovery deadlines expired on October 1, 2013, during the pendency
of this motion. Trial, however, is not set to commence until March, 3, 2014.
Consequently, there exists more than adequate time for Stuber to accomplish the
deposition of Ratcliff’s law enforcement expert – which the Court grants him
permission to do – if he so chooses.
Defendants’ Motion to Strike
As a threshold matter, the Court notes the Defendants do not object to
testimony from Ratcliff’s treating health care providers to the extent Ratcliff
identified the particular health care provider and produced all medical records
generated by that provider during the course of his treatment of Ratcliff. Rather,
the motion to strike is directed to Ratcliff’s “supplemental” disclosures pertaining
to physician assistant Douglas Whitehead and physician Bradley Fuller (docs. 34
& 41) to the extent they posit an opinion that Ratcliff’s medical condition was
caused, aggravated, or exacerbated by the conduct of Officer Stuber during the
course of his encounter with Ratcliff on July 2, 2011.
The testimony of both Whitehead and Dr. Fuller is properly limited to their
personal knowledge of the examination, diagnosis, and treatment of Ratcliff.
Thus, their testimony will be limited to those matters set forth in the medical
records that were generated as a result of the treatment they provided Ratcliff and
they may only present opinions “formed during the course of treatment.” Mears
v. Safeco Ins., 888 F.Supp.2d 1048, 1055 (D. Mont. 2012) (citation omitted).
Thus, the Defendants’ motion to strike is granted to the extent that the
“supplemental” disclosures of June 20, 2013 (doc. 34) state opinions that were not
formed, as reflected in the pertinent medical records, during the course of
Whitehead and Dr. Fuller’s treatment of Ratcliff.
With respect to the supplemental disclosure of July 23, 2013 (doc. 41), the
Defendants’ motion is properly granted because the opinion set forth in Dr.
Fuller’s letter of July 15, 2013, is clearly an opinion that was developed for
purposes of this litigation at the request of Ratcliff’s attorney and upon review of
the referenced video recording of the encounter between Ratcliff and Officer
Stuber. Because Dr. Fuller morphed into a witness hired to render an expert
opinion that goes beyond the scope of a treating doctor’s testimony, Ratcliff was
required to comply with Rule 26(a)(2). Goodman, 644 F.3d at 819-20.
Turning to the Rule 37(c)(1) inquiry, allowing late disclosure of opinions by
Dr. Fuller that were not formed during the course of their treatment of Ratcliff is
neither substantially justified or harmless. Ratcliff did not timely disclose the
opinion of Dr. Fuller as set forth in his letter of July 15, 2013 (doc. 41), and he
fails to articulate any good reason for the late disclosure. Thus, the late disclosure
is “without substantial justification”. Fed. R. Civ. P. 37(c)(1).
Nor has Ratcliff sustained his burden in proving that the late disclosure of
Dr. Fuller’s opinion is harmless. In fact, Ratcliff concedes the Defendants raise a
“legitimate question” about the late disclosed opinion of Dr. Fuller because the
opinion relies upon “a review of information outside the normal course of
treatment.” (Doc. 39, at 12). When Ratcliff did not timely disclose his intention
to have Dr. Fuller express an opinion outside the course of his treatment of
Ratcliff, the Defendants undoubtedly concluded that Ratcliff would rely only upon
the opinions formulated by Dr. Fuller during the course of treating Ratcliff. The
Defendants necessarily prepared their defense – including whether or not to retain
particular medical experts or seek a Fed. R. Civ. P. 35 examination – based upon
that conclusion. If the Court were to allow Dr. Fuller to express the opinions set
forth in his letter of July 15, 2013, it would have to reopen discovery and allow the
Defendants to revamp their defense. Doing so would jeopardize the scheduling
order and ultimately the established trial date, which is not harmless.
For the reasons discussed,
IT IS ORDERED that Plaintiff Ratcliff’s motion requesting leave to
disclose a law enforcement practice expert is GRANTED. And upon notice of the
Defendants, Ratcliff shall make that expert available for deposition.
IT IS FURTHER ORDERED that the Defendants’ motion to strike is
GRANTED as set forth above.
DATED this 29th day of October, 2013
Jeremiah C. Lynch
United States Magistrate Judge
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