Weese v. Schukman

148 F.R.D. 279, 1993 U.S. Dist. LEXIS 6025, 1993 WL 134873
CourtDistrict Court, D. Kansas
DecidedApril 8, 1993
DocketCiv. A. No. 91-1481-MLB
StatusPublished
Cited by1 cases

This text of 148 F.R.D. 279 (Weese v. Schukman) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weese v. Schukman, 148 F.R.D. 279, 1993 U.S. Dist. LEXIS 6025, 1993 WL 134873 (D. Kan. 1993).

Opinion

ORDER

BELOT, District Judge.

Before the court are defendant’s “Motion for Clarification and Reconsideration” and plaintiffs response and addendum in opposition thereto (Docs. 84, 86 and 88). Defendant’s motion pertains to the court’s rulings regarding the use of expert witnesses made at a July 6, 1992 hearing and at the December 14, 1992 pretrial conference.

The standards governing motions to reconsider are well established. A motion to reconsider is appropriate where the court has obviously misapprehended a party’s position or the facts or applicable law, or where the party produces new evidence that could not have been obtained through the exercise of reasonable diligence. Revisiting the issues already addressed is not the purpose of a motion to reconsider and advancing new arguments or supporting facts which were otherwise available for presentation when the original motion was briefed or argued is inappropriate. Comeau v. Rupp, 810 F.Supp. 1172 (D.Kan.1992).

The Federal Rules of Civil Procedure do not provide for motions for “clarification and reconsideration.” Motions for reconsideration are a creature of Rule 206(f) of this court and must be filed within ten days after the entry of the order or decision unless the time is extended by the court. The local rules contain no provisions for motions for “clarification.” Defendant’s motion was filed on March 19, 1993. Since the ruling complained of was made, at the latest, on December 14, 1992, defendant’s motion is out of time and can be denied on that basis alone. However, it also may be denied for the following reasons.

This case was filed on November 18, 1991. Counsel for defendant Sehukman entered his appearance on November 27,1991 and defendant Schukman’s answer was filed on Decem[280]*280ber 5, 1991. On January 27,1992, a scheduling order was entered which provided that counsel exchange proposed lists of witnesses by May 15, 1992 (Doc. 22). On April 29, 1992, plaintiff served upon defendant his first set of interrogatories which requested information regarding defendant’s expert witnesses (Doc. 83). Plaintiff represents that these interrogatories have never been answered and the court can find nothing in the court file to indicate that they have been.

On May 22, 1992, defendant filed his initial list of witnesses and exhibits (Doc. 40). The treating physicians who are the subject of the instant motion (Doctors Fitzgerald, Von Ruden, Svoboda and Brozek) were not specifically listed. However, defendant’s list did make reference to unnamed medical personnel who treated plaintiff at various facilities and it may be that the physicians fall in that category. An additional witness, Dr. Khari-di, was specifically listed. On May 22, 1992, Dr. Kharidi was a defendant. He since has been dismissed.

On June 25, 1992, defendant filed his motion to extend the time for designation of expert witnesses (Doc. 49). After a hearing on July 6, 1992, defendant’s motion was granted. The journal entry memorializing the court’s ruling, which was filed August 24, 1992 and was approved by all counsel, provided as follows:

8. Defendants are to provide complete written reports from all experts. Defendants have until August 7,1992, to identify their experts. Said experts must supply copies of articles relied upon or citations. Plaintiffs’ experts, Myers and Hollis, must also provide the literature or cites to what they relied upon;

9. Defendants’ expert reports are due August 21, 1992.

Defendant filed his designation of expert witnesses on August 7,1992 (Doc. 62) and an amended designation on August 25, 1992 (Doc. 65). Treating physicians Fitzgerald, Von Ruden, Svoboda, Brozek and Kharidi were designated along with a Dr. Lauren Welch, defendants’ retained expert.

A transcript of the December pretrial conference has been filed (Doc. 89). The discussion regarding defendant’s experts appears on pages 3-9. Defense counsel’s explanation regarding the testimony of the so-called treating physicians who are the subject of the instant motion was as follows:

Mr. O’Neal: This case involves our designation of expert witnesses. This is a carbon monoxide poisoning in which four out of the five doctors that we have listed were treating physicians. One of the claims is that this individual should have been referred to a hypobaric oxygen therapy treatment center. We have listed treating physicians as experts simply to talk about their care and treatment; and as I mentioned in my pretrial order, they’ll testify concerning what they considered the standard of care for treating hypobaric—or treating carbon monoxide poison patients and basically gets down to a question of availability and efficacy of one treatment versus the other. So they’re basically testifying as treating physicians. Those four. With the exception they’re obviously going to be asked questions about why one method of treatment rather than the other. The depositions of those individuals have been set up by plaintiffs counsel and we visited by telephone about whether or not there was anything more than just the medical records and I indicated that basically we were referring to the medical records and I didn’t—perhaps erroneously so, felt that that would satisfy since we’re not talking about outside experts who are coming in taking cold review of the records and submitting a report. We’re basically talking about treating physicians. Basically, I’ve outlined in summary what they would testify to. If we need any more specifics or if they need time to depose those particular experts, I have no particular problem with that. Obviously as to the one outside expert who is reading the cold record and providing the report, that has been done and his deposition has been taken. That’s Dr. Welch.
The court: So the ones that we’re talking about are these individuals who were actually treating physicians who may be expressing their opinion on standard of care, something like that?
Mr. O’Neal: That is correct.
[281]*281The court: Yes.
Ms. Pankratz: Your honor, in order to verify that what Mr. O’Neal’s experts were going to testify to, after the court’s order was entered we sent him interrogatories specifically asking what their opinions were going to be. If they were going to testify. Mr. O’Neal’s response was: See designation of expert testimony. And in there he said: See medical records. He provided no additional information on what they were going to testify to. We didn’t take their depositions because we felt they were only going to testify to what was in their medical records and we simply couldn’t gain any additional information from taking their depositions. Now he is trying to come back and use them on the standard of care and causation and I think it’s inappropriate at this time.
The court: Well, did you advise them, Mr. O’Neal, that you intended to use these doctors for standard of care or causation? Mr. O’Neal: Your honor, I suspected that’s what I was doing when I listed them, not as witnesses, lay witnesses or as non-expert witnesses, but as expert witnesses. And I will apologize for any confusion because we did have—their depositions were indeed scheduled and I thought that they would go ahead and be taken and they were not taken.

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Bluebook (online)
148 F.R.D. 279, 1993 U.S. Dist. LEXIS 6025, 1993 WL 134873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weese-v-schukman-ksd-1993.