Rohrer v. Combined Transport Inc ( 2019 )

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JON H. ROHRER, individually; and CASE NO. C18-5950 BHS 7 FLORENCE R. EMERSON, individually, ORDER DENYING 8 DEFENDANT’S MOTION TO Plaintiffs, STRIKE PLAINTIFFS’ EXPERT 9 v. WITNESSES AND PRECLUDE EXPERT TESTIMONY, 10 COMBINED TRANSPORT, INC., et al., GRANTING DEFENDANT’S MOTION TO EXTEND 11 Defendants. DISCOVERY DEADLINE, AND GRANTING CONTINUANCE 12 This matter comes before the Court on Defendants Combined Transport, Inc. and 13 David. W. Campbell’s (“Defendants”) motion to strike Plaintiffs’ expert witnesses and 14 preclude expert testimony, Dkt. 16, and Defendants’ motion for extension of time to 15 complete discovery, Dkt. 27. The Court has considered the pleadings filed in support of 16 and in opposition to the motions and the remainder of the file and hereby grants the 17 motion to extend discovery and denies the motion to strike expert witness for the reasons 18 stated herein. 19 I. PROCEDURAL HISTORY 20 On October 8, 2018 Plaintiffs Jon H. Rohrer and Florence R. Emerson 21 (“Plaintiffs”) filed a complaint for personal injuries arising out of a motor vehicle 22 1 collision against Defendants in the Pierce County Superior Court for the State of 2 Washington. Dkt. 1-2. On November 11, 2018, Defendants removed the case to this 3 Court. Dkt. 1. 4 On August 30, 2019, Defendants moved to strike Plaintiffs’ expert witnesses and 5 preclude expert witness testimony. Dkt. 16. On September 18, 2019, Plaintiffs responded. 6 Dkt. 30. On September 20, 2019, Defendants replied. Dkt. 22. 7 On October 28, 2019, Defendants moved for extension of time to complete 8 discovery. Dkt. 27. On November 12, 2109, Plaintiffs responded. Dkt. 29. On November 9 15, 2019, Defendants replied. Dkt. 30. 10 II. DISCUSSION 11 First, the Court will address scheduling. Defendants request a 45-day extension of 12 discovery, which Plaintiffs do not oppose. Dkts. 27, 29. In response, Plaintiffs requested 13 a three-month continuance with discovery closing 45 days prior to the new trial date, 14 which Defendants do not oppose. Dkts. 29, 30. The Court finds good cause to continue so 15 that the parties may complete the considerable outstanding discovery. Because the parties 16 are in agreement that the trial date should be continued and discovery should be extended 17 through 45 days from the new trial date, the Court construes Defendants’ motion to 18 extend discovery as a motion to extend discovery and continue the trial date as described 19 and grants the motion. 20 Second, the Court turns to the parties’ discovery dispute. Defendants argue 21 Plaintiffs’ expert Dr. Lowell C. Finkleman, M.D. (“Dr. Finkleman”) and his expert report 22 were late disclosed and should be excluded pursuant to Federal Rule of Civil Procedure 1 37(c)(1) and that Plaintiffs’ treating physicians should be excluded for failure to 2 adequately disclose their opinions under Federal Rule of Civil Procedure 26(a)(2)(C). 3 Dkt. 22 at 3, 6. 4 Under Federal Rule of Civil Procedure 37(c), the failure to comply with Rule 5 26(a) may result in exclusion of a witness unless the failure is substantially justified or 6 harmless. Torres v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir. 2008). Though 7 Plaintiffs’ counsel could have provided additional detail regarding the specific health 8 considerations which prevented timely disclosure of Dr. Finkleman’s report to potentially 9 support a finding of substantial justification, the Court finds the late disclosure is 10 harmless where the parties agree that discovery should be extended and the trial date 11 should be continued, providing Defendants time to depose Dr. Finkleman and secure a 12 rebuttal expert if necessary. 13 Regarding the level of specificity provided summarizing the testimony of 14 Plaintiffs’ treating providers, Defendants argue that Plaintiffs’ disclosure is inadequate 15 because it does not include any detail about either of the two plaintiff’s injuries or 16 treatment. Dkt. 22 at 6. Plaintiffs counter that Defendants failed to request a meet and 17 confer pursuant to Rule 37(a)(1) prior to filing the motion. Dkt. 20 at 8; Dkt. 23 at 1. The 18 Ninth Circuit has found it was not an abuse of discretion for the district court to 19 determine summaries of non-retained expert testimony were inadequate when they 20 provided only a general overview of the topics on which the non-retained expert would 21 testify and failed to summarize the facts and opinions to which the non-retained expert 22 would testify. Amezcua v. Boon, 754 F. App’x 551, 553 (9th Cir. 2018) (citing Fed. R. 1 Civ. P. 26(a)(2)(C)(ii)). As Plaintiffs’ responses appear to primarily identify topics of 2 treating physician testimony and lack a summary of the facts and opinions anticipated to 3 be addressed, but Defendants failed to seek this information from Plaintiffs before 4 requesting the Court’s intervention, Plaintiffs should promptly supplement their response 5 with a summary of the facts and opinions to which each treating physician is expected to 6 testify. See Pineda v. City & Cty. of San Francisco, 280 F.R.D. 517, 523 (N.D. Cal. Mar. 7 9, 2012) (explaining that Rule 26(a)(2)(C) disclosure helps the other party prepare for 8 deposition and/or identify which witnesses it needs to depose). The Court expects that 9 supplemental disclosure will render this issue harmless. 10 If after the additional period of discovery Defendants continue to believe they are 11 prejudiced by the issues identified, Defendants may revisit these issues with the Court. 12 III. ORDER 13 Therefore, it is hereby ORDERED that Defendants’ motion to strike expert 14 witnesses and preclude expert testimony, Dkt. 16, is DENIED, and Defendants’ motion 15 to extend discovery (and continue trial date), Dkt. 27, is GRANTED. The parties shall 16 work with the Courtroom Deputy to schedule a new trial date. 17 Dated this 17th day of December, 2019. A 18 19 BENJAMIN H. SETTLE 20 United States District Judge 21 22