Kassim v. United Airlines, Inc.

320 F.R.D. 451, 97 Fed. R. Serv. 3d 1506, 2017 WL 2399336, 2017 U.S. Dist. LEXIS 86074
CourtDistrict Court, E.D. Michigan
DecidedJune 2, 2017
DocketCivil Action No.: 16-11739
StatusPublished
Cited by21 cases

This text of 320 F.R.D. 451 (Kassim v. United Airlines, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kassim v. United Airlines, Inc., 320 F.R.D. 451, 97 Fed. R. Serv. 3d 1506, 2017 WL 2399336, 2017 U.S. Dist. LEXIS 86074 (E.D. Mich. 2017).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO EXCLUDE WITNESSES [ECF NO. 42], DENYING PLAINTIFF’S SECOND MOTION TO EXTEND TIME TO FILE RULE 26(A)(2) DISCLOSURES [ECF NO. 48], AND DENYING AS MOOT MOTION TO STRIKE OBJECTIONS [ECF NO. 46]

ELIZABETH A. STAFFORD, United States Magistrate Judge

I. Introduction

Plaintiff Shams Kassim sues Defendant United Airlines for a May 2014 incident at Washington Dulles Airport that she alleges caused her serious bodily injuries. [ECF No. 1], United States District Judge Linda V. Parker, who referred the motions at issue to the undersigned, entered a scheduling order that, among other deadlines, required Kas-sim to make her Federal Rule of Civil Procedure 26(a)(2) disclosures no later than April 3, 2017, required United to make its Rule 26(a)(2) disclosures by May 2, 2017, and imposed a discovery cutoff of June 2, 2017. [ECF No. 28]. On April 10, 2017, United filed a motion to exclude Kassim’s treating physicians from being witnesses because of alleged deficiencies that included not timely making her Rule 26(a)(2) expert disclosures.1 [ECF No. 42], In addition to responding to United’s motion, Kassim filed a second motion to extend the deadline for her to file her expert disclosures, which United opposes.2 [See ECF Nos. 48, 62, 54, 65, 56]. The Court held a hearing on May 31, 2017, and for the reasons stated below will GRANT IN PART AND DENY IN PART United’s motion to exclude Kassim’s treating physicians from being witnesses, DENY Kassim’s motion for an extension of time to make her Rule 26(a)(2) disclosures; and DENY AS MOOT United’s motion to strike objections to United’s notice of non-fault parties, as Kassim has withdrawn those objections [ECF No. 46].

II. Analysis

A.

Under Rule 26(a)(2)(A), “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” With respect to experts who are not retained or specially employed to provide expert testimony, the disclosure must state “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) [453]*453a summary of the facts and opinions to which the witness is expected to testify.” Rule 26(a)(2)(C). When a Court schedules a deadline for the expert disclosures, they must be made by that deadline. Rule 26(a)(2)(D). See also Federal Rule of Civil Procedure 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent.”).

Treating physicians who are testifying about them diagnoses and treatment of a plaintiff are almost certainly relying upon their specialized training and knowledge, so the subject matter of their testimony and a summary of the facts opinions to which they will testify are required under Rule 26(a)(2)(C). Avendt v. Covidien Inc., 314 F.R.D. 547, 556-59 (E.D. Mich. 2016).3 “The remedy for the failure to file the required expert report is exclusion of the opinion testimony, unless the Plaintiffs can establish that the insufficiency in their disclosures was either substantially justified or harmless.” Id. at 559 (citing Fed. R. Civ. P. 37(c)(1)).

Because Kassim did not request an extension of time to make her expert disclosures until after they were due, Federal Rule of Civil Procedure 6(b)(1)(B) applies, meaning that Kassim must show that her failure to act was due to “excusable neglect.” To determine whether Kassim’s neglect was excusable, the Court must consider all relevant circumstances, including “the danger of prejudice to the nonmoving party, the length of the delay and its impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Morgan v. Gandalf, Ltd., 165 Fed.Appx. 425, 428 (6th Cir. 2006). The reason for the delay is the most critical factor, and “attorney error or inadvertence will not ordinarily support a finding of excusable neglect.” Id. at 429.

B.

To begin applying the above legal principles to this case, the Court will address whether Kassim’s failure to timely file her Rule 26(a)(2)(C) disclosures was due to excusable neglect warranting an extension, and whether her delay was substantially justified so as to avoid the Rule 37(c)(1) sanction of excluding her treating physicians from providing expert opinion testimony.

In response to United’s motion to exclude and in support of her motion for an extension, Kassim argued that United has contact information for each treating physician, that the treating physicians’ conclusions and the bases for those conclusions are within the treatment records, and that United is free to depose the treating physicians. Kassim said that her counsel has been working diligently but “is not focused yet on medical testimony.” [EOF No. 52, PagelD 289], She contended that she needs an extension of time to file her Rule 26(a)(2) disclosure because her request for a Medicare lien had not yet been provided, and asserted that she did not file the disclosure on April 3, 2017, “because she had no new witnesses to disclose.” [EOF No. 48, PagelD 278]. Kassim’s response to United’s motion stated that, under Rule 26(a)(2)(B), only retained or specially employed experts need to provide an expert report, but she did not address the requirements of Rule 26(a)(2)(C). [Id. at PagelD 290-91].

At the hearing, Kassim stated that she needs the Medicare lien information in order to file her Rule 26(a)(2) disclosure because that rule requires a settlement demand, but Rule 26(a)(2) pertains to expert disclosures and does not require a settlement demand.4 She reiterated that she has been focused on liability issues and that each party would be able to discover her treating physician’s opinions during their depositions. Kassim’s counsel stated that she still had not taken any steps to discover from the treating physicians the information that she would need to prepare the expert disclosures. Her counsel further explained that she primarily practices in [454]*454state court and did not understand the requirements of Rule 26(a)(2)(C).

Kassim’s counsel’s lack of understanding of that rule and lack of any effort to begin preparing her ejq>ert disclosures as late as the motion hearing are inexcusable, and her inexperience in federal court is no justification. Aside for the general principal that an attorney practicing in federal court is responsible for knowing the applicable rules, the fact is that Kassim received United’s motion on April 10, 2017, and that motion detailed the requirements of Rule 26(a)(2), and included abundant citations to authority. [EOF No. 42, PagelD 200-03,211-17].

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320 F.R.D. 451, 97 Fed. R. Serv. 3d 1506, 2017 WL 2399336, 2017 U.S. Dist. LEXIS 86074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kassim-v-united-airlines-inc-mied-2017.