Kirkland v. Union Pacific Railroad

189 F.R.D. 604, 1999 WL 1206840
CourtDistrict Court, D. Nevada
DecidedDecember 9, 1999
DocketNo. CV-S-99-319-JBR-(RLH)
StatusPublished
Cited by2 cases

This text of 189 F.R.D. 604 (Kirkland v. Union Pacific Railroad) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirkland v. Union Pacific Railroad, 189 F.R.D. 604, 1999 WL 1206840 (D. Nev. 1999).

Opinion

ORDER

HUNT, United States Magistrate Judge.

Submitted to this Court for decision is Defendant’s Motion to Strike Plaintiffs Experts & Motion for Sanctions as a Result of Events Surrounding the Scheduled Deposition of Dr. Becker (# 23, filed October 27, 1999). Plaintiffs Opposition ... includes a Request for Sanctions Against Counsel for Defendant (# 27, filed November 12, 1999). Defendant’s Reply to Plaintiffs Opposition ..., and Opposition to Plaintiffs Request for Sanctions (# 31) was filed November 24,1999.

BACKGROUND

Plaintiff served PLAINTIFF’S DISCLOSURE OF EXPERT WITNESSES by mail on August 13, 1999, the deadline established by the scheduling order entered by the Court (# 10) on June 24, 1999. It identified two doctors and a number of co-workers or other of Defendant’s employees as follows:

Dr. Steven Becker was identified as a physician expected to testify concerning all aspects of Plaintiffs damages, including his examination of Plaintiff and the nature and extent of Plaintiffs injuries, diagnosis, prognosis, and residual restrictions. It also noted that his “report will be forwarded upon receipt.”

Dr. Neil Goodsell was also identified as a physician whose testimony description mirrored that of Dr. Becker, except for the representation that all of Dr. Goodsell’s rec[606]*606ords had been previously obtained by Defendants.

Plaintiff has affirmatively asserted that both doctors are treating physicians. Dr. Goodsell treated Plaintiff for his burn injuries and Dr. Becker for his hearing loss.

Plaintiff also listed a group identified as “Plaintiffs Co-Workers” (W.C. Wilson, Jr., L.R. Rhodes, Will Thurman and Doug Fran-sen), indicating they have knowledge of the accident and the Defendant’s post-incident investigation. Plaintiff indicated that he would not call all these witnesses, but that of those called, he intends to elicit expert opinion testimony from them regarding the cause of the incident and defendant’s liability therefore.

Finally, Plaintiff listed “Union Officials” (L.R. Tyler, K.H. Mohler, Allen J. Riley and N. Dipaccio) who Plaintiff also describes as Defendant’s employees. Plaintiff indicated that not all of these witnesses would be called either. However, one or more of them would be expected to testify regarding the incident and situation faced by Plaintiff at the time, work procedures and job duties, job opportunities which existed before and after the accident, wages and fringe benefits, and economic losses that Plaintiff faces.

As to these last two groups, Plaintiff indicated that, because they are Defendant’s employees, they have not been “retained” as experts, but Plaintiff expects them to have certain expertise or “quasi-expertise” which he hopes to elicit from them should they be called to testify. They were identified as experts for that reason.

Defendant moves to strike all the above because no reports were submitted as to any of these witnesses. Its arguments consist primarily of the following: The Disclosure does not identify the doctors as “treating physicians.” Defendant does not contend that it did not know they were treating physicians, however. There is' no evidence that Defendant was mislead, rather, only a claim that the form of the Disclosure was inadequate because it did not use the words, “a treating physician.” Further, the disclosure regarding Dr. Becker states that his “report will be forwarded upon receipt.” This, Defendant contends, shows that he was retained to provide expert testimony, otherwise why would Plaintiff expect a report? To this, the Court notes that Plaintiff explains that Dr. Becker had not prepared a report and they could not afford to ask that he do so, but that if he did, they would provide it to Defendant. While the meaning of the promise to forward any forthcoming report to Defendant may be understood several ways, there is no evidence to support Defendant’s contention that the only reasonable interpretation is that the doctor was retained to provide expert testimony (rather than merely as a treating physician.).

Defendant further claims that the words “all aspects” which describe the anticipated testimony, means the doctors .will testify to matters beyond that personally observed during “treatment.” Such a reading' takes the interpretation far beyond the reasonable reading of the scope of the testimony, within the context of the disclosure language.

Regarding the co-workers or other employees of Defendant, Defendant contends that if they are to testify as experts, Plaintiff must comply with the disclosure requirements of Rule 26(a), Fed.R.Civ.P. Plaintiff responds by reminding Defendant that they are Defendant’s employees; employment obligations preclude them from talking to Plaintiff or Plaintiffs counsel about the circumstances at issue; Plaintiff cannot require them to provide a report or the other information mandated by Rule 26(a); they may fear cooperating with Plaintiff; and, because they are Defendant’s employees, Defendant has the right and opportunity to interview them to determine what their testimony will be, or can take their depositions.

By way of trying to convince the Court of Defendant’s lack of good faith in this matter, Plaintiff notes that Defendant’s counsel never made any attempt to resolve these issues before bringing the matter before the Court. Also, Defendant, itself, has failed to provide Plaintiff with a single expert witness report, including the report of an independent medical examination of Plaintiff.

There is a second incident at issue here. It involves the abortive efforts to take the deposition of Dr. Becker. Both counsel ae[607]*607cuses the other of inappropriate conduct and being the cause of the cancellation of the deposition. Each seeks sanctions for the other’s conduct.

The deposition was originally set for September 9, 1999, but the doctor was unavailable, so it was reset for October 7, 1999, at 3:00 p.m. At Dr. Becker’s request, due to a heavy patient schedule, the deposition was rescheduled for 4:00 p.m. Defendant’s counsel arrived at 3:50 p.m. Plaintiffs counsel contends he arrived in time for a short conference with the doctor prior to the deposition, but was not called into Dr. Becker’s office until approximately 4:05 p.m. This time conforms with Defendant’s counsel’s recitation. Plaintiffs counsel represented that it would only take five minutes. However, unbeknown to Defendant’s counsel, the doctor had not actually arrived, but was en route when Plaintiffs counsel was called into the doctor’s inner office. Accordingly, at about 4:10 p.m., when the nurse stepped out to tell Defendant’s counsel that it would be another fifteen or twenty minutes, Defendant’s counsel assumed that Plaintiffs counsel and the doctor were extending their conference and that Defendant would have to pay for this extra time spent by the doctor.

According to Defendant’s counsel, he voiced his objections to the delay and adamantly refused to pay for the extra time, complaining that the deposition had been delayed. When his objections were relayed to the doctor, the doctor, leaving Plaintiffs counsel in his inner office, went into the waiting room to confront Defendant’s counsel. The doctor claims that Defendant’s counsel threatened to set up for the deposition in the waiting room, filled with sick patients, and that counsel’s behavior was disruptive, inappropriate, and upsetting to his patients. He directed Defendant’s counsel to leave his waiting room. Counsel did so, going into the hallway and setting up the court reporter’s machinery.

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189 F.R.D. 604, 1999 WL 1206840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirkland-v-union-pacific-railroad-nvd-1999.