Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02462-WYD-PAC

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-2462-WYD-PAC BOBBY PADILLA, Plaintiff, v. SAN LUIS CENTRAL RAILROAD COMPANY, Defendant. ______________________________________________________________________________ DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO EXCLUDE THE TESTIMONY OF HENRY ROTH, M.D. ______________________________________________________________________________ Plaintiff has moved to exclude the testimony of Defendant's expert physician, Henry Roth, M.D., to the extent that it was not mentioned in a timely-disclosed report of Dr. Roth, but was contained only in a revised report that was inadvertently disclosed several weeks late. Counsel for Defendant admits that he failed to disclose the amended report when it was received, and cannot explain why this failure occurred. However, it is clear under applicable Tenth Circuit law that this failure was harmless to Plaintiff and exclusion of Dr. Roth's testimony would be inappropriate. The circumstances underlying the present motion are not disputed. Dr. Roth was retained by Defendant to conduct an independent medical examination of Plaintiff and to render a report. Due to an unrelated illness of Plaintiff, the examination was postponed until September, 2005, and the deadline for Dr. Roth's expert report was extended to October 7, 2005. The undersigned received a report of 39 pages from Dr. Roth dated September 19, 2005, and disclosed it before 1

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the deadline. However, because Dr. Roth's report did not address two issues which he had been requested to address, the undersigned requested supplementation. A revised report of 41 pages was prepared by Dr. Roth and sent to the undersigned on October 5, 2005. As is noted in Plaintiff's motion, the revised report contains statements regarding apportionment and life expectancy which were not contained in the initial report. Through inadvertence, the revised report was not furnished to counsel for Plaintiff, and this did not come to the attention of counsel until the deposition of Dr. Roth on December 13, 2005. The undersigned has scoured his file and his electronic mail records, and is unable to determine how or why this occurred. Certainly it was not his intent to withhold this additional information which he had specifically requested that Dr. Roth add to his report. The undersigned has always maintained a rigorous reminder system in his practice, and has been diligent to enter, check and double-check deadlines. No explanation for this isolated failure has been found, and no excuse is offered. Once this issue came to the attention of counsel, they have worked together to mitigate its effect. They stipulated to an extension of the discovery cutoff in order that Plaintiffs' counsel could depose Dr. Roth concerning the supplementary material. In this District, the extension of the discovery cutoff, rather than the exclusion of testimony, is the preferred method to avoid prejudice. Continental Casualty Co. v. Brummel, 112 F.R.D. 77, 79-80 (D. Colo. 1986). The undersigned has agreed to pay for the Court Reporter's appearance fee for the second deposition, and has offered to pay other expenses incurred by Plaintiff as a result of the late disclosure. Plaintiff has refused this offer, preferring to ask this Court to exclude any testimony of Dr. Roth which was not covered in his original report. This is the issue now before the Court.

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FED. R. CIV. P. 37(c)(1) provides: A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. Plaintiff has cited to this Court cases previously cited by Defendant when the proverbial shoe was on the proverbial other foot. Those cases represent good law, especially in the courts where they were decided. They are not, however, the only interpretations of Rule 37. In the Tenth Circuit, "a trial judge is not rigidly bound to exclude all evidence as a sanction for failure to fulfill disclosure requirements . . . ." Searles v. Van Berber, 251 F.3d 869, 877 (10th Cir. 2001), citing Orijas v. Stevenson, 31 F.3d 995, 1005 (10th Cir. 1994). The sanctions of Rule 37 serve a threefold purpose. First, they prevent a non-compliant party from profiting from its own failure to disclose. Second, they serve a deterrent effect in the specific case. Third, they serve a deterrent effect in general. Cine-42nd St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2nd Cir. 1979). However, "considerations of fair play may dictate that courts eschew the harshest sanctions provided by Rule 37 where failure to comply is due to a mere oversight of counsel amounting to no more than simple negligence. Id. at 1068. This Defendant does not argue that its late disclosures of the supplementation of Dr. Roth's report was justified. However, under applicable Tenth Circuit law, the late disclosure was "harmless" as that term is used in Rule 37(c). The factors which should guide the Court's determination of harmlessness are "(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or

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willfulness." Woodworker's Supply, Inc. v. Principal Mutual Life Insurance Co., 170 F.3d 985, 993 (10th Cir. 1999). The first and third factors are most applicable when the lack of disclosure does not become apparent until trial. Factor (1) addresses surprise when the "testimony is offered." Factor (3) addresses possible disruption of trial under the same circumstances. Fortunately, the lack of disclosure in this case was discovered several months before trial, and no surprise at trial or disruption of trial will occur. The fourth factor of Woodworker's Supply is not an issue here. Plaintiff has not even implied that the failure to disclose was in bad faith or willful, and the undersigned has specifically denied any intention to avoid the disclosure requirements of the Rule. The undersigned has committed a "mere oversight . . . amounting to no more than simple negligence." Cine-42nd Street, supra, 602 F.2d at 1068. The key issue, then, is that of Plaintiff's ability to cure any prejudice. Defendant submits that any prejudice suffered by Plaintiff has already been cured. Plaintiff sought additional time to complete a supplementary deposition of Dr. Roth, and this second deposition has been taken with the agreement of Defendant. Defense counsel has agreed to pay the Court Reporter's appearance fee for the second deposition, and has offered to pay other expenses incurred by Plaintiff as a result of the second deposition. Plaintiff is in no worse position than he would have been had the supplementary report been disclosed two months previously. This is the holding of Magistrate Judge Boland in a similar case, Washington v. Arapahoe County Department of Social Services, 197 F.R.D. 439 (D. Colo. 2000). There, Plaintiffs failed to provide any report from their accounting expert before the disclosure deadline, providing only the identity of the expert and a statement that they would supply the balance of the required information when it became available. In response to a motion to exclude the expert's testimony, Judge Boland noted that "the decision to exclude evidence is a 4

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drastic sanction." Id. at 441, quoting from Summers v. Missouri Pacific RR System, 132 F.3d 599, 605 (10th Cir. 1997). He held that any prejudice could be avoided by extending the disclosure and discovery deadlines to permit compliance with the Rules. Washington, supra, at 441. That remedy, of course, has already occurred in the present case. In Nalder v. West Park Hospital, 254 F.3d 1168 (10th Cir. 2001), a medical malpractice case involving a birth injury, one of defendants' expert's reports did not contain her explanation for the absence of a certain type of cell in the placental blood. On appeal from a defense verdict, plaintiffs argued that this undisclosed information should have been excluded at trial. The Tenth Circuit, however, held that plaintiffs failed to demonstrate prejudice where they had been informed that the defense expert would be critical of plaintiffs' expert, and where the defense expert had been questioned about the issue in a deposition. In reviewing the decision of the trial court for abuse of discretion, the Tenth Circuit affirmed the verdict. Another case in which the failure to disclose did not become known until the time of trial is Primrose Operating Company v. National American Insurance Company, 382 F.3d 546 (5th Cir. 2004). There, Plaintiffs failed to provide any written report of their expert, although they did give notice that the expert would be called at trial, and gave notice of the nature of the proposed testimony. Because the defendant knew of the expert's existence and the subject matter of his testimony, the Fifth Circuit held that it was not error for the trial court to allow him to testify. Id. at 564. Although a failure to comply fully with disclosure requirements is a serious matter, it does not always justify the imposition of sanctions. In the present case, the failure was inadvertent, and any potentially prejudicial effect has been avoided. The late disclosure will have no adverse effect on the trial of this action. Under the factors promulgated in Woodworker's Supply, the Motion to Exclude should be denied.

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In the final paragraph of his motion, Plaintiff argues that his counsel "should be compensated for the additional time he has had to expend in doing discovery" about the revised report of Dr. Roth. Defendant respectfully disagrees. Had the revised report been disclosed before Dr. Roth's initial deposition, the questions asked at the second deposition would have been asked at the first deposition. Except possibly for a minor amount of travel time and some brief direction to his staff regarding notices and subpoenas, there should be no additional time spent in discovery. The undersigned has offered to pay any additional expense incurred by Plaintiff but, as noted previously, this offer was refused.

s/ Evan S. Lipstein Evan S. Lipstein Law Offices of Evan S. Lipstein PC 12600 West Colfax Avenue, Suite C-400 Lakewood, Colorado 80215 Telephone: 303-232-5151 Fax: 303-232-5161 Email: [email protected] Attorneys for Defendant

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on February 7, 2006, I electronically filed the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO EXCLUDE THE TESTIMONY OF HENRY ROTH, M.D. with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Jack Kintzele, Esq. [email protected] Attorney for Plaintiff s/ Evan S. Lipstein Evan S. Lipstein Law Offices of Evan S. Lipstein PC 12600 West Colfax Avenue, Suite C-400 Lakewood, Colorado 80215 Telephone: 303-232-5151 Fax: 303-232-5161 Email: [email protected] Attorneys for Defendant

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