Carnahan v. Alpha Epsilon Pi Fraternity Inc et al

Filing 126

ORDER denying Defendant's 124 Motion for Reconsideration signed by Judge Stanley A. Bastian. (TH)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 9 EVAN L CARNAHAN, 10 11 NO. 2:17-cv-0086-SAB Plaintiff, v. 12 ALPHA EPSILON PI FRATERNITY ORDER DENYING 13 INC., RECONSIDERATION Defendant. 14 15 16 Before the Court is Defendant’s Motion for Reconsideration, ECF No. 124. 17 Defendant seeks reconsideration of this Court’s Order at ECF No. 121, denying 18 Defendant’s Motion for Leave to Conduct Trial Perpetuation Deposition, ECF No. 19 105. 20 Background 21 During expert discovery, Plaintiff disclosed David Easlick as a liability 22 expert who would testify in support of Plaintiff’s claims against Alpha Epsilon Pi 23 Fraternity Inc. (AEP). ECF No. 105. Plaintiff listed Mr. Easlick on Plaintiff’s 24 expert disclosures and provided an expert report for Mr. Easlick. Id. AEP settled 25 with Plaintiff before the scheduled deposition occurred, withdrawing their notice of 26 deposition for Mr. Easlick. On June 19, 2018, while the original discovery deadline 27 was open, AEP was dismissed Id. Defendant Leon did not note Mr. Easlick for a 28 deposition at that time. Discovery closed on July 2, 2018. On August 6, 2018, ORDER DENYING RECONSIDERATION Ԅ 1 1 Defendant Leon informed Plaintiff that he was planning to call Mr. Easlick as a 2 witness. ECF No. 75. Plaintiff objected, on August 10, informing Defendant that 3 Plaintiff was no longer intending to call Mr. Easlick due to AEP’s dismissal, and 4 thus Plaintiff considered Mr. Easlick to be a consulting witness under Fed. R. Civ. 5 P. 26(b)(4)(D). Defendant filed a motion to take a trial perpetuation deposition of 6 Mr. Easlick, ECF No. 105, which this Court denied. ECF No. 121. Reconsideration Standard 7 8 Motions for reconsideration are generally disfavored and are considered an 9 “extraordinary remedy, to be used sparingly in the interest of finality and 10 conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 11 F.3d 877, 890 (9th Cir. 2000). A motion for reconsideration “should not be 12 granted, absent highly unusual circumstances, unless the district court is presented 13 with newly discovered evidence, committed clear error, or if there is an intervening 14 change in the controlling law.” 389 Orange Street Partners v. Arnold, 179 F.3d 15 656, 665 (9th Cir. 1999). 16 Motions for reconsideration “may not be used to raise arguments or present 17 evidence for the first time when they could reasonably have been raised earlier in 18 the litigation.” Kona, 229 F.3d at 890. Whether or not to grant reconsideration is 19 committed to the sound discretion of the court.” Navajo Nation v. Confederated 20 Tribes and Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 21 2003). 22 23 Analysis The root question is whether one party is entitled to call as an expert witness 24 a witness originally listed as a testifying witness but then purportedly converted to 25 a consulting witness. The parties are divided as to what test applies to this question 26 – the exceptional circumstances test for consulting witnesses, or the general rule of 27 availability for experts expected to testify. Courts are divided on this question as 28 ORDER DENYING RECONSIDERATION Ԅ 2 1 well. See Blumhorst v. Pierce Mfg., Inc., No. 4:10-CV-00573-REB, at *2 (D. Idaho 2 Oct. 7, 2014) (noting different approaches.) Some courts and scholars have inferred a general principle of “unfairness” 3 4 from the Advisory Committee’s Notes to Rule 26, stating that “it is unfair for one 5 party, without expense, to obtain information from an expert who has been hired 6 by the opposing party for an agreed compensation.” Jack H. Friedenthal, Discovery 7 and Use of an Adverse Party's Expert Information, 14 Stan.L.Rev. 455, 472 8 (1962). Based on this principle, courts have denied opposing parties the 9 opportunity to convert an opposing party’s re-designated consulting witness absent 10 “exceptional circumstances,” using the general test for consulting witnesses. See 11 Ager v. Jane C. Stormont Hosp., 622 F.2d 496, 502 (10th Cir.1980) (defining the 12 unfairness rule as a rule “designed to prevent a party from building his own case by 13 means of his opponent's financial resources, superior diligence and more 14 aggressive preparation”). Other courts and scholars hold that “once an expert is designated, the expert 15 16 is recognized as presenting part of the common body of discoverable, and 17 generally admissible, information and testimony available to all parties.” See 18 House v. Combined Ins. Co., 168 F.R.D. 236, 245 (N.D. Iowa 1996), accord 19 Wright & Miller, Federal Practice and Procedure: Civil § 2032. Thus, they hold 20 that “designation of an expert as expected to be called at trial, pursuant to 21 Fed.R.Civ.P. 26(b)(4)(A), even if that designation is subsequently withdrawn, 22 takes the opposing party's demand to depose and use the expert at trial out of the 23 ‘exceptional circumstances’ category of Rule 26(b)(4)(B),” and use a discretionary 24 standard. House, 168 F.R.D. at 245. The standard is a “balancing” test, weighing 25 the probative value of the expert’s potential testimony against the prejudice and 26 unfairness that would arise from one party another’s decision to not call an expert. 27 Id. 28 ORDER DENYING RECONSIDERATION Ԅ 3 1 Under either of these tests, Defendant has not met the high bar for 2 reconsideration. Under the balancing test, the Court does not find that denial of the 3 motion was clear error. There are at least two potential sources of prejudice, one 4 arising from the proximity to trial, and the other from Plaintiff being placed in the 5 awkward position of cross-examining their own expert. See Ferguson v. Michael 6 Foods, Inc., 189 F.R.D. 408 (D. Minn. 1999). The Court lacks the necessary 7 briefing to determine the probative value of Mr. Easlick’s potential testimony. 8 Under the exceptional circumstances test, the Court finds that there are not 9 exceptional circumstances to allow Defendant to depose a consulting witness. 10 During the year-and-a-half that this issue was unresolved Defendant did not note 11 Mr. Easlick for a deposition after AEP’s dismissal, and took no steps to procure 12 their own expert on this issue or move for an extension of the deadline for expert 13 disclosure and discovery. With a trial date quickly approaching, the time for noting 14 an expert has long since passed. 15 The Court therefore denies the Motion for Reconsideration. However, the 16 Court would entertain and allow the filing of a renewed motion with a showing of 17 the relevancy of Mr. Easlick’s potential testimony and a motion for a continuance 18 of the approaching trial date. 19 20 Accordingly, IT IS ORDERED: 21 1. Defendant’s Motion for Reconsideration, ECF No. 124, is DENIED. 22 DATED this 13th day of December 2019. 23 24 25 26 27 Stanley A. Bastian United States District Judge 28 ORDER DENYING RECONSIDERATION Ԅ 4

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