Free Reply to Response to Motion - District Court of Colorado - Colorado

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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.

PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO EXCLUDE THE TESTIMONY OF ROTH AS TO THE CONTENT OF ANY OF HIS REPORTS OTHER THAN THE `UNSTAMPED" SEPTEMBER 19, 2005 REPORT, EXHIBIT TWENTY-THREE (23) TO HIS DEPOSITIONS, BECAUSE NO OTHER REPORT OF ROTH WAS PROVIDED TO THE PLAINTIFF UNTIL AFTER THE DECEMBER 13, 2005, THAT ROTH INITIAL DEPOSITION As bases for the above, plaintiff, by his attorney John A. "Jack" Kintzele, respectfully states: FACTS On November 29, 2004, defendant said in its Motion for Leave to Designate Rebuttal Expert Witnesses at paragraph 4: Defendant will engage Dr. Roth to evaluate plaintiff's disability, and to apportion the causes of his disability; and on December 21, 2004 stated: Defendant has designated Dr. Roth to testify concerning the causes of plaintiff's disability, to apportion the causes of the disability.

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On October 6, 2005, defendant disclosed only Roth's unstamped report, dated September 19, 2005, Exhibit 23 that does not discuss "apportionment of causes" at all, even though defendant had received Roth's apportionment report, Exhibit Thirty-Six (36) by October 5, 2005. On December 13, 2005, plaintiff deposed Roth only on Exhibit Twenty-Three (23). That report had absolutely nothing However, on

as to "apportionment of causation" (causes).

September 22, 2005, Exhibit Fifty-Five (55) had been written to Roth asking for and directing apportionment. Exhibit Fifty-Nine (59) is an "Exemplar" of Roth's type of response at times to attorneys who retain his forensic services. Note how he expands or tries to expand "Attorney

Work Product." How did plaintiff's counsel only receive a report that had no mention of "apportionment of causation" in it? Plaintiff's counsel makes it a point to limit his expert depositions to one (1) hour. Plaintiff's counsel prepared to

use all of only one (1) hour for the December 13, 2005 deposition of Roth. Most of the time was used to establish

that Roth is only a forensic doctor who has spent historically more time in court than most Judges and that when he is not in court, he is reviewing cases anonymously for Pinnacol Assurance Company. Please see Exhibit 10, at page 6 where Roth omitted

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Exhibit Fifteen (15), a previous deposition within the past four (4) years from Exhibit Ten (10). Exhibit Fifteen (15) is

a deposition that shows Roth not to be Board Certified in Occupational Medicine at pages One (1) through Four (4). For undisclosed circumstances, the real report, Exhibit Thirty-Six (36) was not turned over to plaintiff until after the December 13, 2005 deposition was done. By December 13, 2005, after the deposition, plaintiff had spent $450.00 for Roth's demanded hourly fee: service of Subpoena fee of $35.00; witness fee of $4.50; the court reporter's fee of $210.25; mileage of $4.50; Xerox copies of exhibits $25.00; eight (8) hours of attorney time; and one (1) hour of travel time to have the defendant, after all of that investment, say that Exhibit Twenty-Three (23) is not all of defendant's expert's report that had been provided to defendant's counsel as of October 5, 2005. By December 13, 2005, plaintiff had already selected his rebuttal expert, Dr. Healey, whose rebuttal expert report was for the original Roth report, Exhibit Twenty-Three (23), without "apportionment of causation," not Exhibit Thirty-Six (36). Dr. Healey did do an Addendum dated December 27, 2005, the last two pages of Exhibit Forty-Six (46) which are

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attached.

No where has it been stipulated or admitted that Dr.

Healey's Addendum is timely under the circumstances. Further, the defendant has absolutely stated "no cause," no reason for the "apportionment of causation" to be admitted. The unexplained failure to timely provide the apportionment report was made worse. Roth was scheduled to be

deposed on January 17, 2006, but defendant only advised on or about January 16, 2006 that Roth would not do his second deposition on January 17, 2006. Plaintiff suffered another $35.00 service of process fee, another witness fee check for $4.50 to Roth that he cashed and another six (6) hours of preparation, as well as $3.00 of Xerox charges. Finally on January 26, 2006, after one more hour of preparation time and one hour of travel time, a third service of process fee for $35.00, another $4.50 witness fee and $4.50 mileage cost and another $450.00 demanded and received by Roth, the deposition examination as to "apportionment of causation" was concluded after reviewing the file of Roth that of course did not include what Roth deems "Attorney Work Product." Please again see Exhibit Fifty-Nine (59). ISSUE WHAT SANCTION IS TO BE EMPLOYED? ARGUMENT

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Defendant wanted apportionment from the start. By October 5, 2005, without dispute, Roth had delivered the report dated September 28, 2005, Exhibit Thirty-Six (36) to plaintiff's attorney. The choices are: to eliminate the "apportionment of

causation;" to have defendant pay costs and fees; or both. The December 13, 2005 post-deposition turn-over of the "apportionment of causation" report is troubling. The remarks

of both Roth and counsel for the defendant, as to Exhibit Thirty-Six (36), were volunteered in the deposition and after the deposition. Wood-Worker's Supply Inc. v Principal Mutual Life Insurance Company, 170 F.3d 385 (10th Cir. 1999) is a Westlaw "yellow flagged" case. It discusses disclosure violations at

Headnotes 6-8 as follows at 992: Nevertheless, the following factors should guide its discretion: (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 willfulness. See Newman v. GHS Osteopathic Inc., 60 F.3d 153 (3d Cir.1995) (quoting Bronk v. Ineichen, 54 F.3d 425, 428 (7th Cir.1995); Cf $9,041,598.68. 163 F.3d at 252 (enumerating a similar list of factors to determine whether inclusion of last-minute evidence is harmless); Smith v. Ford Motor Co., 626 F.2d 784, 797 (10th Cir.1980) (applying these four factors to determine whether the district court abused its discretion in allowing testimony not specified in the pretrial order). 5

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The defendant's position here is that plaintiff had very little, or nominal inconvenience or loss to him so just "skip doing anything." Further please see; however, Harvey v United States of America, 2005 WL 3164236 (D.Colo.) where Magistrate Judge Shaffer stated as to cancer sick, "pro se" plaintiff's defaults: Mr. Harvey has offered no justification for this delay or good reason why Dr. Bobolis or Dr. VanHoozen could not have provided supplemental reports more expeditiously. See Southern States Rack and Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir.2003) (in a case where plaintiff failed to timely disclose a supplemental opinion by its expert, the court noted that Rule 37(c)(l) does not require a finding of bad faith or callous disregard of the discovery rules as a precondition for imposing sanctions). A party who fails to provide the required expert disclosures may not use at trial any witness not so disclosed, unless the court determines that the failure to disclose was substantially justified or harmless. See Fed.R.Civ.P. 37(c)(l). Sanctions should not be imposed under Rule 37(c)(l) where the failure to disclose was substantially justified or harmless. For purposes of Rule 37(c)(l), a party's failure to disclose is substantially justified where the non-moving party has a reasonable basis in law and fact, and where there exists a genuine dispute concerning compliance. Nguyen v. IBP. Inc.. 162 F.R.D. at 680. "Failure to comply with the mandate of the Rule is harmless when there is no prejudice to the party entitled to the disclosure." Id The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court. A district court need not make explicit

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findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose. Nevertheless, the following factors should guide its discretion: (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 willfulness. . . . . Accordingly, for the foregoing reasons, I will deny in part and grant in part Defendant United States of America's Motion to Strike Expert Reports of Dr. Kristie Bobolis and Dr. Brent VanHoozen, or in the alternative, Request to Redepose These Experts (Document # 102). The court will not strike the expert reports of Dr. Bobolis and Dr. VanHoozen, because I believe that sanction is unwarranted under the totality of circumstances. However, 1 will grant Defendant's motion to the extent it seeks leave to re-depose these experts. Each of those depositions will be limited to two hours in length. Recognizing the additional costs that inevitably result from inefficient discovery, I will also require, as an appropriate sanction for Plaintiff's failure to comply with disclosure obligations under Rules 26, that Mr. Harvey pay the amount of $750 to defray a portion of the additional expense that may be incurred by the United States as a result of these additional depositions. See Wasko v. Moore, 2005 WL 226241, (10th Cir.2005) (noting that even if a party "shows a total inability to pay, the court may assess a moderate sanction to deter future abusive litigation"'). . . . The absence of "any explanation" as to how plaintiff did not timely have the "apportionment of causation" report in a timely manner is troubling, particularly given Roth's conduct in other disclosure matters in other cases. However, make no

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mistake, defense counsel is an honorable advocate, but the view that everything is fine now is respectfully incorrect. Plaintiff, who is physically and financially challenged needs a reasonable, full measure of financial sanctions, given the still unexplained failure to timely turn over the "right" report that discusses "apportionment of causation."

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 13th day of February 2006 a copy of the above was mailed, postage prepaid to: Bobby Padilla P.O. Box 2817 Espanola, NM 87532 On this the 13th day of February 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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