Free Motion to Exclude - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-02462 WYD-PAC

BOBBY L. PADILLA Plaintiff, v SAN LUIS CENTRAL RAILROAD COMPANY, Defendant.

MOTION TO EXCLUDE THE TESTIMONY OF HENRY ROTH, MD AS TO THE CONTENT OF ANY OF HIS REPORTS OTHER THAN THE SEPTEMBER 19, 2005 REPORT, EXHIBIT TWENTY-THREE (23) TO HIS DEPOSITIONS, BECAUSE NO OTHER REPORT OF DR. ROTH WAS PROVIDED TO THE PLAINTIFF UNTIL DECEMBER 13, 2005, AFTER DR. ROTH'S INITIAL DEPOSITION As bases for the above, plaintiff, by his attorney John A. "Jack" Kintzele, respectfully states: DUTY TO CONFER The undersigned counsel for plaintiff certifies that he has called with counsel for defendant regarding this matter at 4:00 P.M. on January 23, 2006 and left a voice mail description of the motion. Counsel for defendant called back

and inferred that he opposes the relief requested. 1. This is a case under the Federal Employers Liability

Act, 45 U.S.C. §§51, et sequitur, where plaintiff was injured

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while in the employment of defendant and his injuries have rendered him disabled. 2. FED R. CIV. P. 26(a)(2) requires the timely

disclosure of expert testimony. In the case of retained experts, Subparagraph (B) requires a written report, prepared and signed by the witness, which contains among other things, "a complete statement of all opinions to be expressed and the basis and reasons therefor [and] the data or other information considered by the witness in forming the opinions." 3. On March 8, 2004, this Court entered a Scheduling Order which provides that defendant will designate his experts and timely provide counsel for the plaintiff with the information specified in FED. R. CIV. P. 26(a)(2) on or before June 15, 2004. 4. On October 6, 2005, defendant timely provided

plaintiff with "Defendant's Disclosure of Expert Testimony" with an attached Dr. Roth report dated September 19, 2005, with no "stamp" on it, which has been was marked and used as plaintiff's Exhibit Twenty-Three (23) at Roth's initial deposition on December 13, 2005. 5. On December 13, 2005, after the completion of the

discovery deposition of Dr. Roth and not before, Dr. Roth and defendant provided Exhibit Thirty-Six (36), which contains apportionment statements by Dr. Roth which was provided to

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plaintiff's counsel for the first time over two (2) months too late. 6. Late disclosure is the equivalent of non-disclosure.

Trost v. Trek Bicycle Corporation, 162 F .3d 1004, 1009 (8th Cir. 1998). If a party needs additional time for disclosure, that party must seek the additional time. Id. A federal court acts within its discretion in excluding the proposed testimony of an expert that was first disclosed two (2) months after a deadline. Id. 7. A late disclosure is not harmless where it is first

made after the discovery cutoff. Rather, the prejudice to the opposing party is "compelling." Transclean Corporation v. Bridgewood Services, Inc., 77 F. Supp. 2d 1045, 1064 (D. Minn. 1999). Under circumstances such as those presented in this with the new

case, a significantly late expert report

information, Exhibit thirty-Six (36), is appropriately stricken. 8. The Tenth Circuit has affirmed the exclusion of a

tardy expert physician's report, even where the physician had previously been deposed. Parker v. Central Kansas Medical Center, 57 Fed. Appx. 401, 404 (10th Cir. 2003). 9. The defendant has provided a second deposition date

and now a third deposition, but has not offered to compensate plaintiff's counsel for having to prepare for three (3)

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depositions, rather than one (1), having to make two (2) trips to Dr. Roth's office, rather than one (1) and having to do all of the necessary paperwork to have three (3) Subpoenas served upon Dr. Roth, rather than one Subpoena. 10. Defendant appears to have made no effort whatsoever to comply with this Court's Scheduling Order as to the new content of Exhibit Thirty-Six (36). Defendant did not seek

any extension of time within which to serve the expert report, known as Exhibit Thirty-Six (36). Defendant has offered no justification for the late service of the Henry Roth, MD's report of September 28, 2005, Exhibit Thirty-Six (36), two (2) months after the applicable expert disclosure deadline. 11. Plaintiff is clearly prejudiced by the conduct of defendant. If defendant is able to utilize the new opinions in Exhibit Thirty-Six (36), plaintiff's counsel should be compensated for the additional time he has had to expend in doing discovery about Exhibit Thirty-Six (36) and what it means in terms of the proposed testimony of Henry Roth, MD at trial.

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Respectfully Submitted, s/John A. "Jack" Kintzele_____ John A. "Jack" Kintzele, #1842 1317 Delaware Street Denver, Colorado 80204 Telephone: 303-892-6494 FAX: 303-893-2053 E-mail: [email protected] Attorney for Plaintiff Certificate of Mailing On this the 24th day of January 2006 a copy of the above was mailed, postage prepaid to: Bobby Padilla P.O. Box 2817 Espanola, NM 87532 On this the 24th day of January 2006 a copy of the above was electronically filed to: Evan S. Lipstein, Esq. 12600 West Colfax Avenue, #C-400 Lakewood, CO 80215 s/John A. "Jack" Kintzele_____ John A. "Jack" Kintzele, #1842

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