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

1 William R. Hobson, SBN 006887
LAW OFFICE OF WILLIAM R. HOBSON
2 7303 W. Boston Street
E Chandler, AZ 85226
3 elephone No. (480) 705-7550
Facsimile No. (480) 705-7503
4 Attorney for Plaintiff
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8
9 II ONALD CHAPMAN
Case No: CV 03 2537 PHX DGC
10
H PLAINTIFF’S REPLY TO
pgamtjff, DEFENDANT’S RESPONSE
12 MOTION TO STRIKE OR
DISALLOW EXPERT.
13 0nN E. 1~orrr:R,1>osTMAsrER
14 E”}§iE.?i`§“sIi{§-l}r;%?i$Xi`}{iE»?AL 9f&1Afs¤me¤tR€q¤¤St¤d
' OSTAL MAIL HANDLER’S UNION,
15 VONNE PEARSON, SEPARATELY
‘ · ND IN HER INDIVIDUAL
16 APACITY,
17 Defendants.
18
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20 Defendant United States Postal Service ("USPS") responds to Plaintiff Donald
2] Chapman ("Chapman") motion to strike or disallow Defendant’s expert.
22 This Court originally set March 31, 2005 for "full and complete expert disclosures

J as required by Rule 26(a)(2)(A)—(C) of the Federal Rules of Civil Procedure? See
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25 ovember 30, 2004 Case Management Order (tiled December 4, 2004). USPS failed to
26 provided the requisite expert disclosure by the deadline. On April I4, 2005, among other
¤ ase 2:03-cv-02537-DGC Document 183 Filed O1/25/2006 Page 1 of 4 (

1 lings, this Court ordered that "the existing case management schedule shall remain in
1 2 effect." After counsel for USPS sought additional time for his experts’ Rule 26 disclosure,
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this Court enlarged that time to May 31, 2005. See April 19, 2005 Order (filed April 21,
4
5 2005). Among other provisions, the Court ordered "All other provisions of the Court’s
6 Case Management Order (Doc. # 25) shall remain in effect." Defendant USPS sought and
7 on June 15, 2005, this Court ordered an "Independent Medical Examination" by one of
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efendant’s experts, a Dr. Steven Pitt.] See June 15, 2005 Order (filed June 17, 2005).
9
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Q IO The Court ordered the examination to occur by June 17, 2005 and for the Rule 26 report to
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E H 11 be given by July 21, 2005. Id. That examination by USPS’s expert occurred as scheduled
9) \D
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E fg E 12 and ordered.2 This Court reiterated that "[a]ll other existing deadlines shall remain in
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E ; gs? effect." Id. This Court, on Defendant’s motion, enlarged the time for USPS’s expert report
<=> M E it
Q E '5 15 from July 21 to no later than July 25, 2005. See July 29, 2005 Order.
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E 16 While Chapman objected to Pitt’s evaluation, the report eventually produced was
<
A 17 not all that bad. See Pitt’s Report attached as Exhibit 3 to Chapman’s Motion. It
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specifically determined that there was no evidence of malingering or symptom
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20 magnification. Id. at page 18 through 21. Dr. Pitt’s report identified the sort of evidence,
21 in addition to Ml\/[PI psychometrics, to be considered if "rnalingering" was suspected? Id.
22
23 I USPS chose one ofthe three experts it had originally if incompletely identified, a D.O. Psychiatrist to opine about
Chapman despite being put on notice in conversation with Chapman’s counsel that Chapman’s disability was an
24 orthopedic one. It apparently abandoned the other designated experts since no Rule 26 disclosure was forthcoming
from those persons.
25 2 The examination of Chapman by Dr. Pitt, laid out in his July 25, 2005 Report, was a wonder to behold. It
included medical records and other records, extensive interviews of Chapman and psychometric testing by a
26 consulting psychologist, presumably qualified to interpret psychometric evaluations. See Exhibit 3 to Motion.
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ase 2:03-cv-02537-DGC Document 183 Filed O1/25/2006 Page 2 of 4

1 at 19. Thus USPS’s representation in its Response that Dr. Pitt turned his report around
2 2 based on review of other materials is belied by the very report he submitted on July 25,
3 .
2005.° Based on the report provided to Chapn1an’s counsel on July 25, 2005 (and in
4
5 further consideration of limited resources consumed in large part by unnecessary
6 depositions of persons not identified as witnesses), Chapman had no interest in deposing
7 Dr. Pitt. It is true that Dr. Pitt indicated, in a letter forwarded to USPS’s counsel, that he
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had reviewed additional deposition transcripts. Exhibit A to Response. None of those
9
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Q 10 transcripts were ofthe sort of information that Dr. Pitt’s report indicated would lead an
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E __ 11 evaluator to suspect malingering. See Pitt’s Report attached as Exhibit 3 to Chapman’s
9-7 KD
E E Rl
S °Q 3 I2 otion at a e 18-19. No re uest was filed by USPS with the Court to order an
A O N P S Q Y
A is
... O E ; § additional evaluation of Chapman by USPS’s Defense expert. No authority was cited for
¤> m E 14
5 E 6 an further evaluation by Dr. Pitt. While Dr. Pitt stated that he sought an additional
E is Y
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O 16 interview "in an effort to clear u some discre ancies," no indication was iven b Dr. Pitt
B P P g Y
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A 17 that he was oin to chan e his o inion on a critical oint of his much dela ed re ort. See
S E S P P Y P
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xhibit A to Response.
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20 It was not until December 8, 2005 that Dr. Pitt turned his report on its head
21 and o ined in a letter received in Cha man’s counsel’s office on December 10, 2005 ,
P P
22 that he now suspect Chapman of malingering. See Exhibit 4 to Motion. The timing of
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this late disclosure, measured as it is by USPS’s view that all discovery was open until
24 ....;...... .
3 While USPS complains that it will be prejudiced if its expert is stricken or limited to its original report (Response
25 at 5 and 6), it received enormous advantage in repeated enlargements of time granted by this Court. The prejudice to
Chapman for relying on the perceived professionalism of Dr. Pitt also must be weighed. It should not be too much
26 to expect that its experts report not be turned on its head at the ultimate hour.
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ase 2:03-cv-02537-DGC Document 183 Filed O1/25/2006 Page 3 of 4

1 December 9, 2005, cannot be ignored.
1 2 In light of the considerable latitude detailed above that USPS received from this
3
4 Court with respect tothe expert it chose and the report he produced, the delay in
5 supplementation of that report, the timing of that supplementation and the extreme
6 prejudice suffered by Chapman for relying on what was produced to him on July 25,
7 2005, Chapman requests that USPS’s expert report be stricken or disallowed.
8
Alternatively, USPS’s expert should be limited to what was provided on July 25, 2005.
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g · th
Q 10 Dated this 25 day of January, 2006.
0
5 E W U LAW OFFICE OF WILLIAM R. HOB SON
E .Â¥ Ri
4 cn Ov; l2 '
E 4§ N By: UD; gg,
E ag '°{ 13 rllram . obson
,6 .5, lg 14 Attorney for Plaintiff
m § E Origin ltiled and copies mailed
fg " U t5 this 2631day or Jimmy, 2006 ro;
g 16 Peter M. Lantke, Esq.
E Assistant United States Attorney
17 United States Attorney’s Office
40 N. Central, Ste 1200
18 Phoenix, AZ 85004-4408
19 Attorney for U.S.P.S. and Yvonne Pearson
20 . 4
it `— / ee ·
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