Libengood v. Fortis Health Insurance Company et al

Filing 38

ORDER granting in part and denying in part 34 Motion to Strike. The Progression Order 26 is amended to extend deadlines related to expert witnesses. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CINDY L. LIBENGOOD, Special Administrator to the Estate of RALPH L. LIBENGOOD, Deceased, Plaintiff, vs. FORTIS HEALTH INSURANCE COMPANY and JOHN ALDEN LIFE INSURANCE COMPANY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

8:07CV444 ORDER

This matter is before the court on the defendants' Motion to Strike Plaintiff's Disclosure of Expert Witness, or, in the Alternative, to Set Deadline for Plaintiff to Serve Expert Report and Extend Deadline (Filing No. 34). The defendants sought to strike the plaintiff's witness, Larry Stephen Milner, M.D., J.D., F.A.C.P., as an expert witness because the plaintiff disclosed his name, but did not provide an expert report as required by Fed. R. Civ. P. 26(a)(2). The plaintiff explained the error was not intentional, but due to some confusion about the difference between when to disclose the expert's name only and when the report was due. See Filing No. 36. The plaintiff proposes a forty-five day extension of the deadline to provide the expert's report. The defendants do not oppose the

extension, but seek thirty days after receipt of the report to disclose the defendants' expert witnesses. The court finds a brief extension of the plaintiff's disclosure deadline will facilitate discovery in this case without undue prejudice on the defendants. consideration, Upon

IT IS ORDERED: 1. The defendants' Motion to Strike Plaintiff's Disclosure of Expert Witness, or,

in the Alternative, to Set Deadline for Plaintiff to Serve Expert Report and Extend Deadline (Filing No. 34) is granted as set forth herein.

2.

The plaintiff shall have to on or before March 30, 2009, to serve the

defendants with Dr. Milner's statement as required by Fed. R. Civ. P. 26(a)(2). 3. The defendants shall have to on or before April 30, 2009, to serve the

statement required by Fed. R. Civ. P. 26(a)(2) regarding each expert witness they expects to call to testify at trial. 4. If necessary to refute the disclosed opinions of the defendants' expert

witnesses, the plaintiff may disclose additional expert witnesses not later than May 29, 2009, provided that the plaintiff then provides all of the information described in Fed. R. Civ. P. 26(a)(2) and makes the expert witness available for deposition prior to the date set for completion of depositions. 5. Motions in limine challenging the admissibility of expert testimony at trial

under Fed. R. Evid. 702, see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) and Daubert v. Merrell-Dow Pharms., 509 U.S. 579 (1993), shall be filed by June 8, 2009, and accompanied by a request for a hearing if necessary. Failure to timely move for a hearing may constitute waiver of the request for a hearing. DATED this 19th day of February, 2009. BY THE COURT: s/ Thomas D. Thalken United States Magistrate Judge

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