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Easton v. Asplundh Tree Experts, Co.

United States District Court, W.D. Washington, Seattle

October 10, 2017

BRITTANY EASTON, Plaintiff,
v.
ASPLUNDH TREE EXPERTS, CO., Defendant.

          ORDER DENYING PLAINTIFF'S MOTION TO EXCLUDE EXPERT VANDENBELT AND IMPOSING SANCTIONS

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This 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.

         II. BACKGROUND

         This is 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.[1] 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. #9.

         Expert 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.

         On 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 further information.

         On 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 stipulation provided:

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 examination:
13. After the delivery of the report and the above information, the Plaintiff shall have the right to take a discovery ...

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