Redeker v. The State of Nevada ex rel The Nevada Department of Corrections et al

Filing 72

ORDER granting in part and denying in part 66 Motion to Strike; Discovery due by 8/31/2018. Motions due by 10/1/2018. Proposed Joint Pretrial Order due by 11/1/2018. Signed by Magistrate Judge Cam Ferenbach on 6/15/2018. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ARIE REDEKER,
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Plaintiff,
2:15-cv-00927-RFB-VCF
ORDER

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vs.
STATE OF NEVADA, et al.,

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MOTIONS TO STRIKE EXPERT WITNESSES [ECF
NO. 66]

Defendants.

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Before the Court is Defendants’ Motion to Strike Plaintiff’s Proposed Expert Witnesses and

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Preclude Them from Testifying at Trial. (ECF No. 66). For the reasons stated below, Defendants’ motion

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is granted in part.

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BACKGROUND

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The Plaintiff in this case alleges Defendants improperly delayed treatment of his eye condition

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while Plaintiff was, and still is, incarcerated. (ECF No. 16 at 5). The Court set the initial disclosure

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deadline for March 21, 2018; the rebuttal expert disclosure deadline for April 23, 2018; and the discovery

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deadline for May 21, 2018. (ECF No. 65).

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Plaintiff mailed his initial expert disclosure to Defendants on March 15, 2018. (ECF No. 66 at 2).

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The disclosure lists three treating physicians: Dr. Leaks, Dr. Stradling, and Dr. Casey. (ECF No. 66-1).

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Plaintiff states the three treating physicians are expected to testify as to their “opinion of whether the

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NDOC’s actions as to Redeker’s cataracts constitute a violation of the 8th Amend. for inadequate medical

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care under Colwell.” (Id. at 3).

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On April 19, 2018, Defendants sent a letter to Plaintiff stating his disclosure was insufficient

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because he failed to reveal the experts’ actual opinions. (ECF No. 66-2). The next day, Plaintiff mailed

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a Supplemental Expert Disclosure for Dr. Casey containing his report and opinion. (ECF No. 66-3).

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Plaintiff has not supplemented his expert disclosure regarding the other two treating physicians.

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On May 17, 2018, Defendants filed a motion to strike Plaintiff’s experts. (ECF No. 66).

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Defendants argue the initial disclosure does not satisfy Federal Rule of Civil Procedure 26(a)(2)(C) and

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the supplement was untimely. (Id. at 5-6). In the alternative, Defendants ask that the rebuttal expert

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deadline be extended. (Id. at 7). In his response, Plaintiff generally argues that his disclosure was timely

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and he has the right to supplement the disclosure as needed. (ECF No. 69). Plaintiff notes Defendants

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waited more than a month to tell Plaintiff the disclosure was insufficient, and Plaintiff responded to the

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letter the next day. (Id.).1
ANALYSIS

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Under Federal Rule of Civil Procedure 26(a)(2)(C), expert disclosures for treating physicians must

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state “the subject matter on which the witness is expected to present evidence” and “a summary of the

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facts and opinions to which the witness is expected to testify.” “[T]he disclosure must contain sufficient

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information to allow opposing counsel to make an informed decision on which, if any, of the treating

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providers should be deposed, determine whether to retain experts, and conduct a meaningful deposition

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or cross examination of the witness at trial.” Alfaro v. D. Las Vegas, Inc., No. 2:15-cv-02190-MMD-

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PAL, 2016 WL 4473421, at *14 (D. Nev. Aug. 24, 2016). “If a party fails to provide information or

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identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or

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witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially

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justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

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Plaintiff also argues that the motion to strike was untimely, and asks that it be stricken, based on an inapplicable rule of civil
procedure. (ECF No. 69 at 2; ECF No. 71 at 3-4). See Fed. R. Civ. P. 7(a); Fed. R. Civ. P. 12(f).

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Plaintiff’s original, timely expert disclosure does not satisfy Federal Rule of Civil Procedure

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26(a)(2)(C). Plaintiff states the three treating physicians are expected to testify as to their “opinion of

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whether the NDOC’s actions as to Redeker’s cataracts constitute a violation of the 8th Amend.,” without

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stating what the physicians’ opinions actual are. (ECF No. 66-1 at 3). This does not provide Defendants

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sufficient information to depose or cross-examine the treating physicians or to retain rebuttal experts.

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Plaintiff’s supplemental disclosure for Dr. Casey contains sufficient information under Federal

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Rule of Civil Procedure 26(a)(2)(C). (ECF No. 66-3). Dr. Casey lists and explains his opinions regarding

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Plaintiff’s conditions. (Id). Though Plaintiff’s supplement was untimely, the Court will extend the expert

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rebuttal deadline for Defendants to have the opportunity to address Dr. Casey’s opinions. With the

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extended deadline, Plaintiff’s failure to timely provide the information is harmless. Defendants’ motion

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to strike is hereby denied with respect to Dt. Casey.2

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Plaintiff’s expert disclosures for Dr. Leaks and Dr. Stradling remain deficient. Plaintiff has not

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attempted to supplement his disclosures. Therefore, the Court hereby strikes Dr. Leaks and Dr. Stradling

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as experts and precludes them from testifying in this case.

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Accordingly, and for good cause shown,

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IT IS HEREBY ORDERED that Defendants’ Motion to Strike Plaintiff’s Proposed Expert

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Witnesses and Preclude Them from Testifying at Trial (ECF No. 66) is GRANTED IN PART AND

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DENIED IN PART. The Motion is granted as to Dr. Leaks and Dr. Stradling. The Motion is denied as

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to Dr. Casey.
IT IS FURTHER ORDERED that the rebuttal expert disclosure deadline is hereby extended to

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July 16, 2018.

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The Court notes Defendants’ concern that Plaintiff may be attempting to disclose Dr. Casey as a retained expert, rather than
a non-retained expert. (ECF No. 66 at 6-7). The Court is denying Defendants’ motion to strike based only on the timeliness
of the disclosure. The Court is not ruling on whether the disclosure is sufficient for a retained expert, and Defendants may
raise this issue in a subsequent motion.
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IT IS FURTHER ORDERED that discovery is re-opened until August 31, 2018 only to the extent
required for discovery relating to Dr. Casey’s opinion and that of any rebuttal expert.

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IT IS FURTHER ORDERED that dispositive motions must be filed on or before October 1, 2018.

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IT IS FURTHER ORDERED that the joint pretrial order must be filed on or before November 1,

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2018. If dispositive motions are filed, the deadline for filing the joint pretrial order will be suspended

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until 30 days after the decision on the dispositive motions or further court order.

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DATED this 15th day of June, 2018.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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