United States District Court, W.D. Washington, Tacoma
JON H. ROHRER, individually; and FLORENCE R. EMERSON, individually, Plaintiffs,
COMBINED TRANSPORT, INC., et al., Defendants.
ORDER DENYING DEFENDANT'S MOTION TO STRIKE
PLAINTIFFS' EXPERT WITNESSES AND PRECLUDE EXPERT
TESTIMONY, GRANTING DEFENDANT'S MOTION TO EXTEND
DISCOVERY DEADLINE, AND GRANTING CONTINUANCE
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants Combined
Transport, Inc. and David. W. Campbell's
(“Defendants”) motion to strike Plaintiffs'
expert witnesses and preclude expert testimony, Dkt. 16, and
Defendants' motion for extension of time to complete
discovery, Dkt. 27. The Court has considered the pleadings
filed in support of and in opposition to the motions and the
remainder of the file and hereby grants the motion to extend
discovery and denies the motion to strike expert witness for
the reasons stated herein.
October 8, 2018 Plaintiffs Jon H. Rohrer and Florence R.
Emerson (“Plaintiffs”) filed a complaint for
personal injuries arising out of a motor vehicle collision
against Defendants in the Pierce County Superior Court for
the State of Washington. Dkt. 1-2. On November 11, 2018,
Defendants removed the case to this Court. Dkt. 1.
August 30, 2019, Defendants moved to strike Plaintiffs'
expert witnesses and preclude expert witness testimony. Dkt.
16. On September 18, 2019, Plaintiffs responded. Dkt. 30. On
September 20, 2019, Defendants replied. Dkt. 22.
October 28, 2019, Defendants moved for extension of time to
complete discovery. Dkt. 27. On November 12, 2109, Plaintiffs
responded. Dkt. 29. On November 15, 2019, Defendants replied.
the Court will address scheduling. Defendants request a
45-day extension of discovery, which Plaintiffs do not
oppose. Dkts. 27, 29. In response, Plaintiffs requested a
three-month continuance with discovery closing 45 days prior
to the new trial date, which Defendants do not oppose. Dkts.
29, 30. The Court finds good cause to continue so that the
parties may complete the considerable outstanding discovery.
Because the parties are in agreement that the trial date
should be continued and discovery should be extended through
45 days from the new trial date, the Court construes
Defendants' motion to extend discovery as a motion to
extend discovery and continue the trial date as described and
grants the motion.
the Court turns to the parties' discovery dispute.
Defendants argue Plaintiffs' expert Dr. Lowell C.
Finkleman, M.D. (“Dr. Finkleman”) and his expert
report were late disclosed and should be excluded pursuant to
Federal Rule of Civil Procedure 37(c)(1) and that
Plaintiffs' treating physicians should be excluded for
failure to adequately disclose their opinions under Federal
Rule of Civil Procedure 26(a)(2)(C). Dkt. 22 at 3, 6.
Federal Rule of Civil Procedure 37(c), the failure to comply
with Rule 26(a) may result in exclusion of a witness unless
the failure is substantially justified or harmless.
Torres v. City of Los Angeles, 548 F.3d 1197, 1213
(9th Cir. 2008). Though Plaintiffs' counsel could have
provided additional detail regarding the specific health
considerations which prevented timely disclosure of Dr.
Finkleman's report to potentially support a finding of
substantial justification, the Court finds the late
disclosure is harmless where the parties agree that discovery
should be extended and the trial date should be continued,
providing Defendants time to depose Dr. Finkleman and secure
a rebuttal expert if necessary.
the level of specificity provided summarizing the testimony
of Plaintiffs' treating providers, Defendants argue that
Plaintiffs' disclosure is inadequate because it does not
include any detail about either of the two plaintiff's
injuries or treatment. Dkt. 22 at 6. Plaintiffs counter that
Defendants failed to request a meet and confer pursuant to
Rule 37(a)(1) prior to filing the motion. Dkt. 20 at 8; Dkt.
23 at 1. The Ninth Circuit has found it was not an abuse of
discretion for the district court to determine summaries of
non-retained expert testimony were inadequate when they
provided only a general overview of the topics on which the
non-retained expert would testify and failed to summarize the
facts and opinions to which the non-retained expert would
testify. Amezcua v. Boon, 754 Fed.Appx. 551, 553
(9th Cir. 2018) (citing Fed.R.Civ.P. 26(a)(2)(C)(ii)). As
Plaintiffs' responses appear to primarily identify topics
of treating physician testimony and lack a summary of the
facts and opinions anticipated to be addressed, but
Defendants failed to seek this information from Plaintiffs
before requesting the Court's intervention, Plaintiffs
should promptly supplement their response with a summary of
the facts and opinions to which each treating physician is
expected to testify. See Pineda v. City & Cty. of San
Francisco, 280 F.R.D. 517, 523 (N.D. Cal. Mar. 9, 2012)
(explaining that Rule 26(a)(2)(C) disclosure helps the other
party prepare for deposition and/or identify which witnesses
it needs to depose). The Court expects that supplemental
disclosure will render this issue harmless.
after the additional period of discovery Defendants continue
to believe they are prejudiced by the issues identified,
Defendants may revisit these issues with the Court.
it is hereby ORDERED that Defendants'
motion to strike expert witnesses and preclude expert
testimony, Dkt. 16, is DENIED, and
Defendants' motion to extend discovery (and continue
trial date), Dkt. 27, is GRANTED. The