Free Order on Motion to Preclude - District Court of Connecticut - Connecticut

Case 3:01-cv-01951-AHN

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ANDREW ORDON Plaintiff, v. : : : : : : : : : : :

CIV. NO. 3:01cv1951 (AHN)

KAREN KARPIE, ET AL, Defendants.

RULING and ORDER Plaintiff filed a motion to preclude the expert testimony of several of defendant's expert witnesses for alleged deficiencies in their expert disclosures [doc. # 87]. Defendant filed a The Court

motion to modify the scheduling order [doc. # 88].

notes that a significant amount of time, expense, and delay could have been avoided had plaintiff made an effort to communicate with defense counsel about some of these issues prior to filing his motion. Discovery in this case has now dragged on for far

too long, and counsel will be strictly held to the deadlines set below.

Dr. Ciccarelli The Court finds that the expert disclosure for Dr. Ciccarelli complies with the requirements of Rule 26. Plaintiff

seeks permission to continue the deposition Dr. Ciccarelli,

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asserting that the first deposition was continued because of time constraints, and because the witness did not have certain papers from his file. Defendants assert that the deposition was

complete, and consent to another deposition provided the questions be limited to those regarding documents produced by Dr. Ciccarelli after the first deposition, and on topics that were not covered during the first deposition. The transcript shows

that on re-direct examination, plaintiff's counsel, after asking one question, said, "Let's suspend the deposition. Everybody go home." See Def.'s Mem. Opp., Ex. D [doc. # 89]. The deposition

was then ended.

Based upon the record, it does not appear that

any agreement was reached about continuing the deposition. Plaintiff shall therefore be permitted a re-deposition of Dr. Ciccarelli limited solely to questions regarding documents produced after the first deposition, and to topics that were not the subject of the first deposition. Plaintiff's motion to

preclude the testimony of Dr. Ciccarelli is denied.

Attorney Karpie As a party to the litigation, Attorney Karpie is not required to submit an expert report. Plaintiff has already had

the opportunity to depose Attorney Karpie on all topics relevant to the litigation. The Court acknowledges that an expert report

was required for Dr. Ordon, who is also a party to the

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litigation.

However, the circumstances under which that report In

was required differed materially from the situation here.

that instance, Dr. Ordon developed a new opinion on the causal connection between the underlying Medical Board proceedings and the development of his carpal tunnel syndrome. Here, plaintiff

has not identified any newly-formed opinion disclosed by Attorney Karpie that would warrant an expert report or a re-deposition. Plaintiff's request to re-depose Attorney Karpie is denied, and plaintiff's motion to preclude the testimony of Attorney Karpie is denied.

Attorney Lagnese Attorney Lagnese's expert disclosure complies with the requirements of Rule 26. Plaintiff may choose to depose Attorney

Lagnese should he wish to obtain additional information on the substance of his opinions, subject to the terms discussed below. Plaintiff's motion to preclude the testimony of Attorney Lagnese is denied.

Dr. Corso As a treating physician, Dr. Corso is clearly not required to submit an expert report under Rule 26. See Sullivan v. Glock, 175 F.R.D. 497, 500-501 (D. Md. 1997). Plaintiff's motion to preclude with respect to Dr. Corso is denied. Plaintiff shall be

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permitted to depose Dr. Corso subject to the terms discussed below.

Dr. O'Connell and Dr. Goldenberg Defendant asserts that Dr. O'Connell and Dr. Goldenberg are involved in this case as a result of their role in advising Dr. Ciccarelli in the underlying Medical Board proceedings. They are

anticipated to be called as witnesses either as reputation witnesses, or only to the extent that plaintiff intends to challenge the authenticity of their medical records. As such,

they are not going to offer additional expert testimony about the issues in this case. Therefore, no Rule 26 reports were

required, and plaintiff's motion to preclude their testimony is denied. Plaintiff shall be permitted to depose Dr. O'Connell and

Dr. Goldenberg, subject to the terms set out below.

Dr. Ashmead The Court finds that the disclosure of Dr. Ashmead as an expert on the topic of carpal tunnel syndrome was timely, considering that the defendant learned of plaintiff's theory on the causal connection between the Medical Board proceeding and his carpal tunnel syndrome after deposing plaintiff and his partner, Dr. Winston. The court finds that the expert disclosure Plaintiff, however, requests

is largely compliant with Rule 26.

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more specific information about the literature that Dr. Ashmead reviewed in formulating his opinion. Defendant offered to

accommodate this request to the extent the information is available. In order to facilitate the deposition of Dr. Ashmead, defendant shall provide plaintiff with a copy of the search results, listing the articles relied on by Dr. Ashmead in forming his opinion. If this list does not exist, then defendants will

provide plaintiff with the specific search terms used and the name of the person who conducted the search. Plaintiff's motion

to preclude the testimony of Dr. Ashmead is denied.

In light of the above ruling, the court enters the following schedule. The discovery deadline is extended until February 15, 2004. The parties shall set mutually agreeable dates for the depositions of Dr. Ciccarelli, Attorney Lagnese, Dr. Goldenberg, Dr. O'Connell, Dr. Corso, and Dr. Ashmead, to be completed on or before February 15, 2004. The parties shall agree on this

schedule no later than December 30, 2004, and shall inform the court of the schedule in writing by that date. Plaintiff will

pay the expert fees in advance of the deposition if the expert requests pre-payment. Dispositive motions are due on or before April 15, 2004. Responses are due on or before May 6, 2004. Replies are due on

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or before May 20, 2004. The trial court will set the remainder of the trial schedule once a ruling on dispositive motions is issued.

CONCLUSION Plaintiff's motion to preclude expert testimony [doc. # 87] is DENIED. Defendants' motion to modify the scheduling order

[doc. # 88] is GRANTED.

This is not a recommended ruling.

This is a discovery

ruling and order which is reviewable pursuant to the "clearly erroneous" statutory standard of review. 28 U.S.C. § 636

(b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of the Local Rules for United States Magistrate Judges. As such, it

is an order of the Court unless reversed or modified by the district judge upon motion timely made.

SO ORDERED at Bridgeport this 14th day of December 2004.

___/s/________________________ HOLLY B. FITZSIMMONS UNITED STATES MAGISTRATE JUDGE

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