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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 DUSTIN MICHELLE, CASE NO. 2:21-cv-00140-JHC 8
Plaintiff, ORDER 9 v. 10 SOUTH CORRECTIONAL ENTITY, et al., 11
Defendants. 12 13
14 This matter comes before the Court on Plaintiff’s Motion to Strike King County’s 15 Untimely Expert Witness Disclosures or in the Alternative Partially Modify the Case Schedule 16 So Plaintiff May Challenge the Untimely Disclosed Expert Testimony. Dkt. # 111. Having 17 reviewed the submissions in support of and in opposition to the motion, the applicable law, and 18 the case file, the Court hereby GRANTS the motion. 19 On April 23, 2021, the Court issued a minute order setting the trial date and related 20 deadlines. Dkt. # 16. That order set June 8, 2022 as the deadline for expert witness disclosures 21 and reports under Fed. R. Civ. P. 26(a)(2). Discovery was to be completed by August 8, 2022, 22 and dispositive motions were to be filed by September 6, 2022. Id. Defendant NaphCare 23 disclosed four experts, Dr. Blackburn, Dr. Murphy, Dr. Chhetri, and Dr. Shuer, before the June 8 24 1 expert witness disclosure deadline. Dkt. # 112 at 2. The Court dismissed NaphCare on August 2 24, 2022. Dkt. # 97. On October 7, 2022, King County served a document titled, “Second 3 Supplemental Witness Disclosures,” in which it indicated that it intends to call these four expert
4 witnesses. Dkt. # 112–1. King County also provided Plaintiff with the same reports that these 5 experts had prepared on behalf of NaphCare. Dkt. # 112 at 2. 6 Plaintiff asks the Court to strike these witness disclosures as untimely, arguing that the 7 late disclosure was not substantially justified and that he has been prejudiced because he is now 8 unable to substantively challenge these experts’ testimony without violating the case schedule. 9 Dkt. # 111; see Fed. R. Civ. P. 37(c). In the alternative, Plaintiff requests that the Court partially 10 modify the case scheduling order to allow him to substantively move to exclude these experts’ 11 testimony. Id. King County argues that their failure to cross-identify the experts in their initial 12 disclosure is justified and harmless because NaphCare previously disclosed the experts before
13 the Court’s deadline, putting Plaintiff on notice and allowing him to depose them, and because 14 Plaintiff is “free to challenge any particular aspects of their testimony in his motions in limine.” 15 Dkt. # 116 at 6. 16 The Court concludes that King County’s late disclosure is prejudicial to Plaintiff and not 17 substantially justified. King County had the opportunity to timely cross-identify these expert 18 witnesses and failed to do so. Plaintiff did depose the witnesses due to NaphCare’s timely 19 disclosure, but excerpts from those depositions show that the scope of their testimony was 20 limited to Plaintiff’s medical status at South Correctional Entity Jail (“SCORE,” the facility 21 where NaphCare provides medical services) versus at King County Jail. See Dkts. ## 124–1 to 22 124–4. Nor did Plaintiff file substantive motions to exclude or limit these experts’ testimony
23 before the dispositive motions deadline and had no reason to do so because Naphcare was 24 dismissed from this action on August 24, 2022. Dkt. # 97. Any substantive motions filed by 1 Plaintiff at this point would fall too close to the trial date for the Court to provide timely rulings 2 and would therefore jeopardize the trial date.1 And contrary to King County’s assertion, because 3 of the case scheduling order, Plaintiff may not bring substantive motions to exclude expert 4 testimony in his motions in limine. See Dkt. # 16. In short, there is no realistic possibility that 5 the trial date will be preserved if the Court allows King County to rely on these newly disclosed 6 experts. 7 King County cites three unpublished district court cases to support its arguments that its 8 late disclosures are justified and harmless, but these cases are neither precedential nor applicable. 9 In Attebery v. Placer Sierra Bank, the Eastern District of California ruled that a defendant 10 could use experts timely disclosed by a co-defendant, even though it did not cross-identify the 11 experts until after the expert disclosure deadline. No. CIV S-06-2416 WBS EFB, 2007 WL 12 3231721, at *4 (E.D. Cal. Nov. 1, 2007). But the co-defendant in that case was not dismissed,
13 and the plaintiff had an opportunity to move to exclude or limit the experts’ testimony in a 14 timely fashion (in other words, the plaintiff did not proceed—as here—under the reasonable 15 belief that the experts would not be used). There is also no indication from that case that the 16 experts’ testimony was relevant only to one party. Id. By contrast, various excerpts from the 17 four experts’ depositions here indicate that the scope of their deposition testimony targeted Mr. 18 Michelle’s medical status at SCORE. See Dkts. ## 124–1 to 124–4. And lastly, the timing 19 considerations were significantly different in Attebery because the discovery deadline had not yet 20 21 22 1 Additionally, King County represented in its Response that, as of October 24, 2022, it had not even retained the experts. Dkt. # 116 at 4. It has simply listed their names and provided the same reports that the experts prepared for NaphCare, which focus on Plaintiff’s medical status during his incarceration 23 at SCORE. Dkt. # 112 at 2. It is unclear whether King County will solicit new reports from these experts, and whether the reports will prompt Plaintiff to request to re-depose them to elicit testimony 24 about his medical status during his incarceration at King County Jail. 1 passed and the trial would not occur for another six months; by contrast, here, the discovery 2 deadline passed almost three months ago and the trial date is in about one month. 3 In Beyer v. Anchor Insulation Co., the District of Connecticut permitted several experts to
4 testify for one defendant, even though they had previously only been disclosed by two co- 5 defendants. No. 3:13-cv-1576 (JBA), 2017 WL 784962, at *3 (D. Conn. Feb. 28, 2017). But the 6 court based its ruling on the fact that the plaintiff had not articulated “any concrete way in which 7 they would be prejudiced.” Id. Here, Plaintiff has made several arguments about prejudice, for 8 example referencing the fact that he was not able to substantively challenge the experts’ 9 testimony before the dispositive motions deadline. See Dkt. # 111. Further, the court in Beyer 10 emphasized that a defendant “cannot, in the usual course, evade his timing requirement by 11 relying on a co-defendant’s expert disclosure because a Plaintiff may make strategic decisions 12 about which questions to ask at deposition and how to prepare for trial in reliance on the fact that
13 the expert has not been designed by all defendants.” Id. This case resembles the hypothetical 14 situation cautioned against by the Beyer court. Plaintiff explains that their deposition questions 15 (and the experts’ answers) were limited in scope to Mr. Michelle’s medical status at SCORE, and 16 that they may have elicited more information as to his treatment at King County Jail had the 17 experts been properly cross-designated. Dkt. # 123 at 1–2. 18 In Pearson v. Al-Maha Enterprises, Co.,the Northern District of Georgia allowed a 19 defendant to use experts previously identified by other parties despite its failure to cross-identify 20 them. No. 1:10-CV-2799-CAP, 2012 WL 12872906, at *3 (N.D. Ga. Dec. 11, 2012).
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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 DUSTIN MICHELLE, CASE NO. 2:21-cv-00140-JHC 8
Plaintiff, ORDER 9 v. 10 SOUTH CORRECTIONAL ENTITY, et al., 11
Defendants. 12 13
14 This matter comes before the Court on Plaintiff’s Motion to Strike King County’s 15 Untimely Expert Witness Disclosures or in the Alternative Partially Modify the Case Schedule 16 So Plaintiff May Challenge the Untimely Disclosed Expert Testimony. Dkt. # 111. Having 17 reviewed the submissions in support of and in opposition to the motion, the applicable law, and 18 the case file, the Court hereby GRANTS the motion. 19 On April 23, 2021, the Court issued a minute order setting the trial date and related 20 deadlines. Dkt. # 16. That order set June 8, 2022 as the deadline for expert witness disclosures 21 and reports under Fed. R. Civ. P. 26(a)(2). Discovery was to be completed by August 8, 2022, 22 and dispositive motions were to be filed by September 6, 2022. Id. Defendant NaphCare 23 disclosed four experts, Dr. Blackburn, Dr. Murphy, Dr. Chhetri, and Dr. Shuer, before the June 8 24 1 expert witness disclosure deadline. Dkt. # 112 at 2. The Court dismissed NaphCare on August 2 24, 2022. Dkt. # 97. On October 7, 2022, King County served a document titled, “Second 3 Supplemental Witness Disclosures,” in which it indicated that it intends to call these four expert
4 witnesses. Dkt. # 112–1. King County also provided Plaintiff with the same reports that these 5 experts had prepared on behalf of NaphCare. Dkt. # 112 at 2. 6 Plaintiff asks the Court to strike these witness disclosures as untimely, arguing that the 7 late disclosure was not substantially justified and that he has been prejudiced because he is now 8 unable to substantively challenge these experts’ testimony without violating the case schedule. 9 Dkt. # 111; see Fed. R. Civ. P. 37(c). In the alternative, Plaintiff requests that the Court partially 10 modify the case scheduling order to allow him to substantively move to exclude these experts’ 11 testimony. Id. King County argues that their failure to cross-identify the experts in their initial 12 disclosure is justified and harmless because NaphCare previously disclosed the experts before
13 the Court’s deadline, putting Plaintiff on notice and allowing him to depose them, and because 14 Plaintiff is “free to challenge any particular aspects of their testimony in his motions in limine.” 15 Dkt. # 116 at 6. 16 The Court concludes that King County’s late disclosure is prejudicial to Plaintiff and not 17 substantially justified. King County had the opportunity to timely cross-identify these expert 18 witnesses and failed to do so. Plaintiff did depose the witnesses due to NaphCare’s timely 19 disclosure, but excerpts from those depositions show that the scope of their testimony was 20 limited to Plaintiff’s medical status at South Correctional Entity Jail (“SCORE,” the facility 21 where NaphCare provides medical services) versus at King County Jail. See Dkts. ## 124–1 to 22 124–4. Nor did Plaintiff file substantive motions to exclude or limit these experts’ testimony
23 before the dispositive motions deadline and had no reason to do so because Naphcare was 24 dismissed from this action on August 24, 2022. Dkt. # 97. Any substantive motions filed by 1 Plaintiff at this point would fall too close to the trial date for the Court to provide timely rulings 2 and would therefore jeopardize the trial date.1 And contrary to King County’s assertion, because 3 of the case scheduling order, Plaintiff may not bring substantive motions to exclude expert 4 testimony in his motions in limine. See Dkt. # 16. In short, there is no realistic possibility that 5 the trial date will be preserved if the Court allows King County to rely on these newly disclosed 6 experts. 7 King County cites three unpublished district court cases to support its arguments that its 8 late disclosures are justified and harmless, but these cases are neither precedential nor applicable. 9 In Attebery v. Placer Sierra Bank, the Eastern District of California ruled that a defendant 10 could use experts timely disclosed by a co-defendant, even though it did not cross-identify the 11 experts until after the expert disclosure deadline. No. CIV S-06-2416 WBS EFB, 2007 WL 12 3231721, at *4 (E.D. Cal. Nov. 1, 2007). But the co-defendant in that case was not dismissed,
13 and the plaintiff had an opportunity to move to exclude or limit the experts’ testimony in a 14 timely fashion (in other words, the plaintiff did not proceed—as here—under the reasonable 15 belief that the experts would not be used). There is also no indication from that case that the 16 experts’ testimony was relevant only to one party. Id. By contrast, various excerpts from the 17 four experts’ depositions here indicate that the scope of their deposition testimony targeted Mr. 18 Michelle’s medical status at SCORE. See Dkts. ## 124–1 to 124–4. And lastly, the timing 19 considerations were significantly different in Attebery because the discovery deadline had not yet 20 21 22 1 Additionally, King County represented in its Response that, as of October 24, 2022, it had not even retained the experts. Dkt. # 116 at 4. It has simply listed their names and provided the same reports that the experts prepared for NaphCare, which focus on Plaintiff’s medical status during his incarceration 23 at SCORE. Dkt. # 112 at 2. It is unclear whether King County will solicit new reports from these experts, and whether the reports will prompt Plaintiff to request to re-depose them to elicit testimony 24 about his medical status during his incarceration at King County Jail. 1 passed and the trial would not occur for another six months; by contrast, here, the discovery 2 deadline passed almost three months ago and the trial date is in about one month. 3 In Beyer v. Anchor Insulation Co., the District of Connecticut permitted several experts to
4 testify for one defendant, even though they had previously only been disclosed by two co- 5 defendants. No. 3:13-cv-1576 (JBA), 2017 WL 784962, at *3 (D. Conn. Feb. 28, 2017). But the 6 court based its ruling on the fact that the plaintiff had not articulated “any concrete way in which 7 they would be prejudiced.” Id. Here, Plaintiff has made several arguments about prejudice, for 8 example referencing the fact that he was not able to substantively challenge the experts’ 9 testimony before the dispositive motions deadline. See Dkt. # 111. Further, the court in Beyer 10 emphasized that a defendant “cannot, in the usual course, evade his timing requirement by 11 relying on a co-defendant’s expert disclosure because a Plaintiff may make strategic decisions 12 about which questions to ask at deposition and how to prepare for trial in reliance on the fact that
13 the expert has not been designed by all defendants.” Id. This case resembles the hypothetical 14 situation cautioned against by the Beyer court. Plaintiff explains that their deposition questions 15 (and the experts’ answers) were limited in scope to Mr. Michelle’s medical status at SCORE, and 16 that they may have elicited more information as to his treatment at King County Jail had the 17 experts been properly cross-designated. Dkt. # 123 at 1–2. 18 In Pearson v. Al-Maha Enterprises, Co.,the Northern District of Georgia allowed a 19 defendant to use experts previously identified by other parties despite its failure to cross-identify 20 them. No. 1:10-CV-2799-CAP, 2012 WL 12872906, at *3 (N.D. Ga. Dec. 11, 2012). But in that 21 case the court found that plaintiffs “had no reason to expect that Al-Maha would be precluded 22 from using such expert testimony” and noted that there was “no dispute that plaintiffs had [the
23 opportunity to discover the opinions of the experts and designate rebuttal experts if necessary] 24 and took full advantage of it.” Id. at *4. By contrast, here, Plaintiff argues that he was not able l to take full advantage of the experts’ depositions, for example pointing out that “during their 2 depositions, when [the experts] were asked to express opinions about Mr. Michelle’s time at 3 King County Jail, they were unwilling or unable to do so.” Dkt. # 123 (citing Dkts. ## 124-1 to 4 124-4). Further, unlike Pearson, Plaintiff did have reason to believe that King County would be 5 precluded from using the experts’ testimony; as King County explains in its Response, 6 || NaphCare has not given them permission to use its experts. See, e.g., Dkt. #117 at 3. And 7 lastly, there was no dispute in Pearson that the experts’ testimony related to all the defendants in 8 question, while here Plaintiff asserts that the experts’ reports and deposition testimony were 9 focused mainly on Mr. Michelle’s medical status while incarcerated at SCORE. 10 The Court issues scheduling orders to provide a reasonable schedule for resolving 11 disputes that will ensure the trial date is not put in jeopardy. See Local Rules W.D. Wash. LCR 12 7(d)(3), 7(b)(5). It recently held Plaintiff to these deadlines by refusing to allow him to amend 13 his complaint based on newly discovered evidence. See Dkt. # 105. It will enforce them equally 14. || with respect to Defendants by striking their untimely expert witness disclosures. 15 Dated this 2nd day of November, 2022. 16 17 Cok. 4. Chas 18 John H. Chun United States District Judge 19 20 21 22 23 24