United States District Court, W.D. Washington, Seattle
ORDER DENYING PLAINTIFF'S MOTION TO EXCLUDE
EXPERT VANDENBELT AND IMPOSING SANCTIONS
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs Motion to Exclude
Testimony of Defendant's Expert Witness Russell
Vandenbelt, M.D. Dkt. #30. Plaintiff argues that Dr.
Vandenbelt's testimony should be excluded because his
expert opinions were not timely disclosed and they are not
properly supported as required by FRE 702. Id.
Defendant opposes the motion, arguing that there was an
agreement between the parties allowing for a disclosure after
the deadlines set in the Court's Scheduling Order. Dkt.
#31. For the reasons set forth below, the Court now DENIES
Plaintiffs Motion to Exclude.
an employment action in which Plaintiff raises claims for
violations of Washington's Law Against Discrimination
("WLAD") based on sex (female), intentional
infliction of emotional distress, respondeat superior,
negligent hiring and supervision and failure to train, and
hostile work environment. Dkt. #1-1. Plaintiff alleges that
she had been hired by Defendant as a flagger and was
subsequently sexually harassed by her male
supervisor. Dkt. #1-1 at ¶ ¶ 1-10. Plaintiff
further alleges that after she reported the harassing
behavior to another foreman and a supervisor, she suffered
retaliation, Defendant failed to take appropriate corrective
action, and she was eventually laid off. Id. at
¶ ¶ 12-32. Defendant denies those allegations. Dkt.
witness disclosures were originally due in this matter on
July 12, 2017. Dkt. #12. On July 5, 2017, Defendant's
counsel initiated discussions with Plaintiffs counsel
regarding a potential motion to extend deadlines or a
potential stipulation for the same. Dkt. #32, Ex. B.
Ultimately counsel "agreed to share the names, CVs, and
subjects of our experts tomorrow through a formal disclosure
and that we will exchange expert reports at a later
date." Dkt. #30-1, Ex. 4.
August 11, 2017, Defendant's counsel provided Plaintiffs
counsel with the preliminary report of Dr. Vandenbelt. Dkt.
#30-1, Ex. 3. Dr. Vandenbelt noted that he had completed a
records review and had four preliminary opinions.
Id. He then noted that he understood he would be
permitted to conduct a Rule 35 examination of Plaintiff and
that he would be able to review the transcript of her
deposition when available. Id. Accordingly, he
reserved his final opinions until he was able to obtain that
August 30, 2017, the parties signed a stipulation for a Rule
35 examination of Plaintiff. Dkt. #32, Ex. C. In addition to
setting parameters for the examination itself, the
9. Defendant's counsel may elect to use the Examiner as a
consulting witness and not use the Examiner for any other
purpose (in other words, make an election to
Motherhead the witness). If Defendant's counsel
makes this election, it shall do so within 45 days of the
examination. If this election is made, then (1) Defense
counsel shall not be required to produce the Examiner's
report or other documentation to Plaintiffs counsel; (2)
Plaintiffs counsel shall not have the right to depose the
Examiner; and (3) Defense Counsel shall not be required to
comply with the provisions of paragraphs 10 through 12.
POST EXAMINATION PRODUCTIONS
10. The Examiner shall make a written report within thirty
(30) days of the completion of his examination. The
examiner's report must be in writing and must set out in
detail the examiner's findings, including diagnoses,
conclusions, and the results of any tests, as required by
Federal Rule of Civil Procedure 35.
12. Defendant's counsel shall furnish the following items
to the Plaintiffs counsel, within forty-five (45) days of the
13. After the delivery of the report and the above
information, the Plaintiff shall have the right to take a