Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona PETER M. LANTKA Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 E-Mail: [email protected]

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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Donald Chapman, Plaintiff, CIV-03-2537-PHX-DGC v. John E. Potter, Postmaster General, United States Postal Service; and Yvonne Pearson, separately and in her individual capacity, Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION IN LIMINE; TO STRIKE OR DISALLOW EXPERT; ALTERNATIVELY TO LIMIT EXPERT REPORT

Defendants John E. Potter, Postmaster General, United States Postal Service; and Yvonne Pearson, separately and in her individual capacity, by and through undersigned counsel, respectfully submit their Response to Plaintiff's Motion in Limine; to Strike or Disallow Expert; Alternatively to Limit Expert Report. Defendants' Response is supported by the attached Memorandum of Points and Authorities, exhibits, and all matters of record. MEMORANDUM OF POINTS AND AUTHORITIES On December 9, 2005, Defendants fulfilled their duty pursuant to Fed. R. Civ. Proc. 26(e)(1) by supplementing an earlier expert report based on new information obtained since the original submission. Plaintiff's current motion misconstrues the Federal Rules and seeks to strike Defendants' report as untimely. As elaborated below, Defendants' supplemental report was in accord with the Federal Rules and necessary to preserve relevant information. Plaintiff's motion in limine should therefore be denied.

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RELEVANT BACKGROUND This Court entered its initial case management order pursuant to Fed. R. Civ. Proc.

16 on November 30, 2004, setting the deadlines for Defendants' expert disclosure and discovery at March 31, 2005 and May 25, 2005 respectfully. [Doc. No. 25].1 After several extensions, Defendants' expert filing was set at July 25, 2005, [Doc. No. 59], with the completion of discovery to occur on December 9, 2005. [Doc. No. 58]. Defendants complied with these deadlines, concluding their discovery efforts by December 9, 2005 and serving Plaintiff with the expert report of Dr. Steven E. Pitt, D.O., on July 25, 2005. [Doc. No. 57] (Defendants' notice of service). Dr. Pitt's July 25, 2005 report addressed multiple issues. Chief among them was the extent to which Plaintiff suffered emotional harm from Defendants' alleged actions. Concerning this issue, Dr. Pitt states: "[T]here was nothing from my evaluation which would suggest that Mr. Chapman was intentionally producing false psychological symptoms in furtherance of his litigation." (Pla. Ex 3; Pitt July 25, 2005 Rpt. at 19). The report, however, was limited in scope, occurring prior to a significant amount of discovery, including Plaintiff's deposition. Following receipt and review of subsequent discovery, Dr. Pitt drafted a supplemental report on December 8, 2005. (Pla. Ex. 4). The supplement modifies Dr. Pitt's earlier conclusion regarding Plaintiff's emotional damages, stating: Although my request to meet with Mr. Chapman for the purpose of conducting a follow-up examination has not come to fruition, I asserted that his thinking was clouded by the medications he was taking (i.e. Paxil and Neurontin). . . As a result, I would like to amend my opinion as it pertains to malingering. That is, given this new information and myriad of inconsistencies between what the plaintiff testified to under oath and the other documents I reviewed, I cannot rule out the possibility that in furtherance of his litigation, Donald Chapman is, in fact, exaggerating the nexus between the alleged conduct of the defendants and the effect that said conduct had on his thought processes, behavior, and claimed emotional damages. The May 25, 2005 deadline specifically addressed "Completion of Fact Discovery." [Doc. No. 25 at 2].
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Id. Defendants served Plaintiff with the supplemental report the following day, concurring with the December 9, 2005 discovery deadline. [Doc. No. 150]. II DEFENDANTS' SUPPLEMENTAL REPORT WAS SERVED IN COMPLIANCE WITH THE FEDERAL RULES The Federal Rules require all civil litigants to disclose the identity and a report from

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any person who may be used to present evidence at trial under Rules 702, 703, or 705. Fed.
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R. Civ. Proc. 26(a)(2)(A), (B). Timing of expert disclosures is set by the court, and parties
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are required to supplement their disclosures under Rule 26(e)(1). Fed. R. Civ. Proc.
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26(a)(2)(C). Rule 26(e)(1) requires parties to supplement expert disclosures at appropriate
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intervals "if the party learns that in some material respect the information disclosed is
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incomplete or incorrect. . ." Fed. R. Civ. Proc. 26(e)(1).2 The obligation to supplement disclosures is continuous and "should be made at appropriate intervals during the discovery

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period, and with special promptness as the trial date approaches." (Committee Notes on
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Amendments (1993)).
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Regarding expert disclosures, Advisory Committee notes clarify that "with respect to
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experts from whom a written report is required under subdivision (a)(2)(B), changes in the
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opinions expressed by the expert whether in the report or at a subsequent deposition are
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subject to a duty of supplemental disclosure under subdivision (e)(1)." Id. (emphasis added);
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see also MRO Communications, Inc. v. American Tel. & Tel. Co., 1999 WL 1178964, *6 -7
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(9th Cir. 1999) (citing Keener v. United States, 181 F.R.D. 639, 640 (D.Mont.1998))
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With respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B), the duty to supplement extends to both information contained in the expert's report and to information provided through a deposition of the expert. Any additions or other changes to this information must be disclosed by the time the party's disclosures under Rule 26(a)(3) are due. Fed. R. Civ. Proc. 26(e)(1). Under Rule 26(a)(3), disclosures are due at least thirty days before trial unless the court orders otherwise. Fed.R.Civ.P. 26(a)(3). While this Court scheduled deadlines for initial expert disclosures, no deadlines were set concerning supplementary materials. The default deadline from Rule 26(a)(3) thus applies. See e.g. Gilbane Bldg. Co. v. Downers Grove Community High School Dist. No. 99, 2005 WL 838679, *7-8, fn. 10 (N.D.Ill. 2005)(applying the aforementioned calculus).
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("Supplementation under the Rules means correcting inaccuracies, or filling the interstices of an incomplete report based on information that was not available at the time of the initial disclosure."). Indeed, such supplemental disclosures are mandated by the Federal Rules, warranting sanction for noncompliance. See Fed. R. Civ. Proc. 37(c)(1) ("A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to 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."). Defendants supplemental disclosure fully complied with this standard. Dr. Pitt's initial report, submitted pursuant to this Court's deadlines, was based on the information available to Defendants at that time. Pursuant to the rule, Defendants obtained new information through discovery which, in turn, altered their expert's opinion. Under Rule 26(e)(1), Defendants were thus required to provide Plaintiff with Dr. Pitt's amended report or risk exclusion under Rule 37. Plaintiff concurs with this standard. (Pla. Mot. at 4-6)(noting the sanctions available under Rule 37 should Defendants have failed to disclose the newly discovered information). Plaintiff thus appears to present Defendants with a Hobson's choice: either fail to disclose newly discovered information pursuant to Rule 26(e)(1) and have the evidence struck, or comply with the rule and become subject to a motion in limine. Plaintiff cannot have it both ways. Defendants complied with this Court's directives by disclosing their expert and his opinion on July 25, 2005, and they complied with Rule 26(e)(1) by supplementing their report on December 9, 2005. Nonetheless, Plaintiff accuses Defendants of "gamesmanship" and seeking to "sandbag" him "by delivering a supplemental opinion by [Defendants'] expert many months after the close of discovery and after the time for taking expert and fact witness depositions had expired." (Pla. Mot. at 3, 5). Plaintiff's argument makes little sense. First, by this Court's July 29, 2005 Order,
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discovery closed on December 9, 2005. [Doc. No. 58]. Thus, Defendants' supplemental report did not occur "many months" after discovery closed. Further, any allegation that Defendants attempted to "sandbag" Plaintiff is incongruous. Defendants' expert only changed his opinion upon review of deposition transcripts and other evidence which occurred after his initial report and did not fully conclude until December 9, 2005. Defendants did not "sandbag" Plaintiff by any means. They disclosed newly discovered information in order to provide Plaintiff with "mutual knowledge" of all relevant facts, preventing surprise. Hickman v. Taylor, 329 U.S. 495, 507 (1947).3 Defendants' supplemental expert report is in accord with the Federal Rules and should be allowed. III DEFENDANTS WILL BE PREJUDICED IF DR. PITT'S REPORT IS STRUCK Plaintiff contends that "striking the report and testimony of Dr. Pitt is not as draconian as it may seem" because Plaintiff's "disability is an orthopedic one, not a mental disability." (Pla. Mot. at 6). There has never been an allegation that Plaintiff suffers from mental disability. Rather, a primary purpose of Dr. Pitt's evaluation was to determine if Plaintiff's alleged emotional damages stemmed from Defendants' actions. Striking Dr. Pitt's report in its entirety disallows Defendants the ability to rebut a substantial aspect of Plaintiff's claim for damages. See FMC Corp. v. Vendo Co., 196 F.Supp.2d 1023, 1043 (E.D. Cal. 2002)(citing House v. Combined Ins. Co. of Amer., 168 F.R.D. 236 (N.D. Iowa 1996)(addressing defendant employer's use of expert psychologist to rebut plaintiff's emotional distress claim). Even more troubling, should this Court grant Plaintiff's alternative

Of additional note, Plaintiff was aware that Defendants sought to amend Dr. Pitt's report. See (Pla. Ex 4; Pitt Dec. 8, 2005 Rpt. at 1)(noting Plaintiff's failure to secure a followup examination despite Defendants' requests); (Pla. Ex 3; Pitt July 25, 2005 Rpt. at 25)("I reserve the right to modify my opinions as additional information becomes available (i.e., all of the plaintiff's medical records, legal records, offense reports, and deposition transcript)"); (Dft. Ex. A) (Nov. 29, 2005 facsimile to Plaintiff's counsel regarding Dr. Pitt's request for a follow-up examination.).
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remedy and only allow Defendants' initial report, incomplete evidence will be presented, preventing a proper determination of Plaintiff's claim. Dr. Pitt's supplemental report not only complies with the Federal Rules, it is necessary for a full and fair adjudication of this matter. IV CONCLUSION For the foregoing reasons, Defendants John E. Potter and Yvonne Pearson respectfully request that this Court DENY Plaintiff's Motion in Limine; to Strike or Disallow Expert; Alternatively to Limit Expert Report. Respectfully submitted this 17th day of January, 2006 PAUL K. CHARLTON United States Attorney District of Arizona

s/Peter M. Lantka PETER M. LANTKA Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on January 17, 2006, I electronically transmitted the attached document, including exhibits, to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing, to the following CM/ECF registrants:
William R. Hobson Law Offices of William R. Hobson 7303 W. Boston Street Chandler, Arizona 85226 s/Nancy Stotler

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