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Brown v. Wescott

United States District Court, Ninth Circuit

December 18, 2013

DENNIS BROWN, Plaintiff,
KATHARINE WESCOTT and JOHN DOE GOHRE, and their former marital community; and MILLERCOORS, LLC, a Delaware Limited Liability Corporation; Defendants.


MARSHA J. PECHMAN, Chief District Judge.

This matter comes before the Court on Plaintiff's motion to strike Dr. Karl Goler, MD, and for discovery sanctions (Dkt. No. 51) and on Defendants' motion to strike Plaintiff's expert witnesses (Dkt. No. 49). The Court considered all responsive papers, and all relevant documents. The Court DENIES Plaintiff's motion, and GRANTS Defendants' motion, but provides Plaintiff an opportunity to cure the deficiencies in his expert witness disclosures.


On June 28, 2010, Plaintiff Dennis Brown was injured in a car collision during the course of his employment. (Dkt. No. 51 at 2.) Defendant Katherine Wescott, while driving for Defendant Miller Coors, LLC, crashed her car into the rear of Brown's car. (Id.) Because Brown was working at the time of the collision, a first party claim was opened with the Department of Labor and Industries ("L&I") for time loss and medical payments. (Id.) As part of the L&I claim, Brown underwent an independent medical evaluation ("IME"), scheduled through Sunrise Medical Consultants, by Drs. Karl Goler, Timothy Daly, and Geoffrey Masci. (Id.)

Plaintiff filed this action against Defendants in King County Superior Court, and it was removed to this Court on February 28, 2013. On September 25, 2013, Plaintiff served his "First Amended Plaintiff's Fed.R.Civ.P. 26 Initial Disclosures - First Supplemental, " on Defendants. (Dkt. No. 51 at 3.) In this Document, Plaintiff disclosed Dr. Karl Goler, among others. (Dkt. No. 40-2 at 8.) Plaintiff also provided Defendants with a complete copy of his L&I file, including Dr. Goler's report. (Dkt. No. 51 at 3.)

Plaintiff says he informed Sunrise Medical Consultants he intended to name the three IME doctors in this case. (Dkt. No. 51 at 4.) On October 21, 2013, Plaintiff's counsel arranged with Sunrise Medical Consultants to obtain Dr. Goler's curriculum vitae, testimony, and schedule of fees to comply with the expert disclosure rule, and submitted his expert disclosures to Defendants on October 21, 2013. (Id.) Meanwhile, on October 9, 2013, Defendants called Machaon Medical Services to retain an expert neurosurgeon for this matter, and Machaon returned the name of Dr. Goler. (Dkt. No. 53 at 2.) Machaon contacted Dr. Goler and confirmed he had not been retained on this matter and was available to work as Defendants' expert without conflict. (Id.) On October 21, 2013, Defendants produced an expert disclosure, for the first time disclosing their intent to use Dr. Goler as their medical expert. (Dkt. No. 51 at 4.)

On October 25, 2013, Plaintiff submitted a motion to strike Dr. Goler and for discovery sanctions against Defendants. (Dkt. No. 38.) Plaintiff withdrew the motion on November 14, 2013 in response to a discovery related stipulation entered into by the Parties. (Dkt. No. 47.) The Parties stipulated, without seeking Court approval, to several conditions of discovery, including Plaintiff's perpetuation of Houston, Daly, and Masci's testimony in lieu of live testimony. (Dkt. No. 48.) The stipulation stated, "Defendants do not waive any objection as to admissibility of testimony or any other evidentiary objections by virtue of agreement to taking of perpetuation depositions." ( Id. at 5.)

On November 20, 2013, Defendants filed a motion to strike Plaintiff's expert witnesses. (Dkt. No. 49.) Plaintiff responded on the merits, but primarily argued Defendants waived their procedural objections in the discovery stipulation which prompted him to withdraw his initial motion to strike Defendants' use of Dr. Goler as an expert. (Dkt. No. 55 at 2.) Following Defendants' motion to strike, Plaintiff renewed his motion to strike Dr. Goler. (Dkt. No. 51.) Both motions are addressed below.


I. Plaintiff's Motion

Plaintiff relies on state law to argue Dr. Goler was Plaintiff's expert and Defendants improperly made ex-parte contact. (Dkt. No. 51 at 6-7.) The state law is inapposite. Since the decision in Erie R.R. v. Tompkins , 304 U.S. 64 (1938), federal courts in diversity cases apply state substantive law and federal procedural law. Feldman v. Allstate Ins. Co. , 322 F.3d 660, 666 (9th Cir. 2003). Generally, evidentiary rulings are procedural in nature, unless the state evidence rules at issue are "intimately bound up" with the state's substantive law at issue. Id. The discovery questions here are not intimately bound to the substantive law. Federal substantive law governs, and the state law Plaintiff cites to support his argument does not apply.

Because Plaintiff never actually retained Dr. Goler, Defendants did nothing wrong in making contact with Dr. Goler. Defendants did not waive their ability to object on procedural grounds to Plaintiff's experts; in fact, in the stipulation Plaintiff relies upon Defendants specifically reserve the right to object to admissibility, without limitation. (Dkt. No. 48 at 5.) Plaintiff's motion to strike and for discovery sanctions is DENIED.

In a surreply, Defendants requested the Court strike section C of Plaintiff's reply brief, which contained new arguments going to the substance of Dr. Goler's expert, which were not the subject of Plaintiff's motion to strike. (Dkt. No. 62.) The Court GRANTS ...

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