BLACK et al v. ALLEGHENY COUNTY et al

Filing 186

ORDER granting Plaintiffs' 183 Motion to Strike Dr. Mendel's Expert Report. The Medical Defendants are prohibited from referencing or relying on Dr. Mendel's Expert Report for any purpose, including motions for summary judgment or at trial. Signed by Magistrate Judge Cynthia Reed Eddy on 05/30/2014. (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DEBRA BLACK; EARL BLACK,
ADMINISTRATORS OF THE ESTATE
OF DEREK BLACK,

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Plaintiffs,

v.

ALLEGHENY COUNTY; ALLEGHENY
COUNTY CORRECTIONAL HEALTH
SERVICES; MIGUEL SOLOMON;
WILLIAM S. STICKMAN, III; DANA
PHILLIPS; MICHAEL PATTERSON, M.D.;
KIM WILSON, M.D.; CHRIS MARSH,
R.N.; VALERIE SLEPSKY; MEDICAL
STAFFJOHN AND JANE DOES 1-15;
CORRECTIONAL STAFF JOHN AND
JANE DOES 1-15
Defendants.

Civil Action No. 13-0179
Judge David Stewart Cercone/
Magistrate Judge Cynthia Reed Eddy

MEMORANDUM ORDER
Pending before the Court is Plaintiffs’ Motion to Strike the Medical Defendant’s Expert
Report, which was filed on May 29, 2014. (ECF No. 183). The

Court

held

a

telephone

conference on May 30, 2014 in which Plaintiffs’ counsel, W. Charles Sipio, Esquire, the Medical
Defendants’ counsel, Stanley A. Winikoff, Esquire, and the County Defendants’ counsel, Paul
Dachille, Esquire, participated.

The conference call was electronically recorded in the

courtroom.
On February 11, 2014, the Court entered an Order providing that Plaintiffs’ expert reports
were due on April 14, 2014, Defendants’ expert reports were due on April 28, 2014, and expert
depositions were to be completed by May 15, 2014. (ECF No. 113). Mr. Winikoff, however,

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failed to comply with said deadlines and filed no motions with the Court requesting an extension
of time to complete the expert reports. In addition, the Medical Defendants failed to comply
with Federal Rule of Civil Procedure 26(a) regarding mandatory expert witness disclosures.
(ECF No. 184 at 2). On May 29, 2014, a month after his expert report was due, Mr. Winikoff emailed Plaintiffs’ counsel with an attachment of an expert report stating, “[t]his is a preliminary
report of Dr. Lawrence Mendel in the Derek Black claim. The final report will be issued upon
completion of discovery.”

(ECF No. 183-2).

Plaintiffs now seek to prevent the Medical

Defendants from relying on the Dr. Mendel report for any purpose.
Needless to say, the Court is perplexed from Mr. Winikoff’s May 29, 2014 e-mail.
Discovery has been closed since mid-March and Mr. Winikoff’s expert report was due at the end
of April. Moreover, Motions for Summary Judgment are due on June 2, 2014, two business days
from the date of the e-mail.
Federal Rule of Civil Procedure 16(f) provides that “on motion or on its own, the court
may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or
its attorney . . . fails to obey a scheduling or other pretrial order.” F. R. Civ. P. 16(f)(1)(C). Rule
37(b)(2)(A) provides, in pertinent part, that the court may enter an order:
(ii) prohibiting the disobedient party from supporting or opposing designated
claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to
submit to a physical or mental examination.

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F. R. Civ. P. 37(b)(2)(A)(ii)-(vii).
Here, the Medical Defendants woefully violated the Court’s February 11, 2014
scheduling order. (ECF No. 113). At the May 30, 2014 telephone conference, Mr. Winikoff
provided no adequate explanation for missing the deadline contained in the February 11, 2014
order. Mr. Winikoff stated that the second lawsuit filed by Plaintiffs, Black v. Youngue, 2:14-cv505, complicated matters because he was using the same expert for both lawsuits. However, the
Court notes that the second lawsuit was not filed until April 17, 2014, eleven days before
defendants’ expert deadline, and an Answer was not filed in that case until May 19, 2014.
Therefore, the Court finds this excuse insufficient. See Ragguette v. Premier Wines & Spirits,
691 F.3d 315, 330 (3d Cir. 2012) (a busy caseload generally does not provide a basis for missing
a deadline).
Additionally, the Court notes that Mr. Winikoff accepted “full responsibility” at the
conference call and stated that the delay was his fault. Consequently, the Medical Defendants
are barred from using the Dr. Mendel “preliminary report” for any purpose, including in a
motion for summary judgment or at trial. See F. R. Civ. P. 37(b)(2)(A)(ii). The Court finds that
if the Medical Defendants were allowed to use said report, Plaintiffs would be greatly prejudiced
considering that the expert depositions deadline has expired and summary judgment motions are
due in a few days. The February 11, 2014 order had been in place for two and a half months
prior to the expiration of the defendant’s expert report deadline. The Medical Defendants took
no steps to notify the Court of any problems in meeting the expert report deadline,
notwithstanding frequent communication with the Court during the relevant period.
conduct is unacceptable.

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Such

The Court further finds that forbidding the Medical Defendants from using the Dr.
Mendel expert report is a sufficient sanction. Therefore, although Plaintiffs have also requested
monetary sanctions pursuant to 28 U.S.C. § 1927 (ECF No. 184 at 2, n.3), the Court finds that
monetary sanctions are not appropriate under the circumstances.
AND NOW this 30th day of May, 2014, upon consideration of Plaintiffs’ Motion to Strike
Dr. Mendel’s Expert Report (ECF No. 183) and brief in support thereof (ECF No. 184), as well
as Mr. Winikoff’s explanation at the telephone conference, IT IS HEREBY ORDERED that
Plaintiffs’ Motion is GRANTED. The Medical Defendants shall be precluded from referencing
or relying on Dr. Mendel’s expert report for any purpose.

By the Court:
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
cc: all registered counsel via CM-ECF

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