Ewalan v. Schreiber

Opinion

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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 JOSEPH LOCHUCH EWALAN, CASE NO. C20-5678JLR 11 Plaintiff, ORDER v. 12 ROBERT SCHREIBER, et al., 13 Defendants. 14

15 Before the court are Plaintiff Joseph Lochuch Ewalan’s motions “for time 16 extension for time to disclose treating physicians” (10/23/23 Mot. (Dkt. # 165)) and “to 17 disclose witnesses” (10/25/23 Mot. (Dkt. # 168)). Although the motions are noted for 18 November 3, 2023, and November 10, 2023, respectively (see Dkt.), the court exercises 19 its discretion under Federal Rule of Civil Procedure 1 to decide the motions before their 20 noting dates. See Fed. R. Civ. P. 1 (stating that the Federal Rules of Civil Procedure 21 should be construed “to secure the just, speedy, and inexpensive resolution of every 22 action and proceeding”). Having reviewed the motions, the relevant portions of the 1 record, and the governing law, the court DENIES Mr. Ewalan’s motions because Mr. 2 Ewalan has already timely disclosed his treating physicians as witnesses.

3 On August 30, 2023, Mr. Ewalan filed a motion indicating his intent to call Dr. 4 Joseph Ho as an “expert witness.” (8/30/23 Mot. (Dkt. # 151) at 1.)1 The court advised 5 Mr. Ewalan that “a motion is not the proper procedure for calling witnesses.” (10/4/23 6 Order (Dkt. # 159) at 7.) Nevertheless, the court granted the motion “to the extent that 7 [Mr. Ewalan] is entitled to call Dr. [Ho] as an expert witness, so long as Mr. Ewalan 8 complies with all applicable deadlines and the Local Federal Rules.” (Id. at 9.)

9 However, the court denied the motion “to the extent that it, construed as an expert 10 witness disclosure, does not fully comply with Rule 26.” (Id.) Specifically, the filing 11 purported to call a treating physician—Dr. Joseph Ho—as a witness but did not 12 sufficiently state “the subject matter on which the witness is expected to present 13 evidence” or provide “a summary of the facts and opinions to which the witness is

14 expected to testify,” as required by Federal Rule of Civil Procedure 26(a)(2)(C). (Id.); 15 see also Fed. R. Civ. P. 26(a)(2)(C) (setting forth the requirements for disclosing treating 16 physicians). The court directed the parties to “submit expert witness disclosures that 17 fully comply with the requirements of Rule 26 no later than October 27, 2023.” (10/4/23 18 Order at 12.)

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1 The court notes that Mr. Ewalan’s August 30, 2023 motion refers to this witness as 21 “Dr. Joseph Oh” (see 8/30/23 Mot. at 1), while subsequent filings appear to reference the same witness as “Dr. Joseph Ho” (see, e.g., 10/25/23 Mot. (Dkt. # 168) at 1). The court addresses the 22 witness using the name “Dr. Joseph Ho,” in accordance with Mr. Ewalan’s most recent filings. 1 On October 16, 2023, Mr. Ewalan filed a “motion to call the two treating 2 physician[s] or disclose,” in which he indicated his intent to call two treating physicians

3 as witnesses: Dr. Joseph Ho and Chad Anderson. (10/16/23 Mot. (Dkt. # 162) at 1.) 4 That motion provided significant detail concerning the subject matter, facts, and opinions 5 to which Dr. Ho and Mr. Anderson will testify. (See generally id.) Accordingly, the 6 court entered a minute order terminating that motion and construing the filing as a 7 timely-filed witness disclosure pursuant to the court’s October 4, 2023 order granting in 8 part Mr. Ewalan’s motion to call an expert witness. (10/17/23 Min. Order (Dkt. # 17);

9 see also 10/4/23 Order at 9.) To be clear, although the court’s October 17, 2023 minute 10 order construed Mr. Ewalan’s October 16, 2023 motion as a “timely-filed expert witness 11 disclosure” (10/17/23 Min. Order at 1 (emphasis added)), the court considers Dr. Ho and 12 Mr. Anderson to be fact witnesses because they are treating physicians whose testimony 13 will be limited to opinions formed during the course of treatment. See, e.g., Urrutia v.

14 BNSF Railway Co., No. C09-0215RSM, 2010 WL 11493266, at *2 (W.D. Wash. May 3, 15 2010) (noting that “a treating physician whose testimony is based on personal knowledge 16 gained during the course of treatment of his patient is not generally considered an expert 17 witness,” and “a treating physician who failed to provide an expert report would not be 18 permitted to give opinions more properly reserved for an expert witness”).

19 On October 23, 2023, Mr. Ewalan filed the instant “motion for time extension for 20 time to disclose treating physicians.” (10/23/23 Mot. at 1.) The motion seeks an 21 extension of the expert witness disclosure deadline for the purpose of calling the same 22 two treating physicians that Mr. Ewalan previously disclosed—Dr. Joseph Ho and Chad 1 Anderson. (Id. at 1; see also 10/4/23 Order at 9 (setting deadline of October 27, 2023 for 2 expert witness disclosures).) And on October 25, 2023, Mr. Ewalan filed the instant

3 “motion to disclose witnesses,” which again seeks to disclose Dr. Joseph Ho and Chad 4 Anderson as witnesses. (10/25/23 Order at 1.) The court already determined, however, 5 that Mr. Ewalan timely disclosed Dr. Joseph Ho and Chad Anderson as witnesses. 6 (10/17/23 Min. Order at 1.) Mr. Ewalan is advised that no further motions or filings are 7 required to comply with the October 27, 2023 disclosure deadline with respect to these 8 two witnesses.2 Mr. Ewalan is further advised that the court cannot facilitate

9 communication between Mr. Ewalan and his witnesses. (See 10/23/23 Mot. at 3-4 10 (raising concerns regarding Mr. Ewalan’s ability to contact and hire experts).) Mr. 11 Ewalan must secure the presence of his witnesses at trial either through voluntary 12 agreement or by subpoena. 13 Because Mr. Ewalan has already timely disclosed Dr. Joseph Ho and Chad

14 Anderson as witnesses, the Court DENIES Mr. Ewalan’s motion for an extension of time 15 (Dkt. # 165) and motion to disclose witnesses (Dkt. # 168). 16 Dated this 26th day of October, 2023. A 17 JAMES L. ROBART 18 United States District Judge 19 20 21 2 Nevertheless, Defendants are entitled to challenge Mr. Ewalan’s disclosure and 22 witnesses on any usual basis permitted by law. (See 10/4/23 Order at 10.)