KENDALL J. NEWMAN, Magistrate Judge.
Presently pending before the court is defendant's motion to compel proper Rule 26(a)(2)(C) disclosures from plaintiff's experts, or alternatively, to strike and preclude their testimony, which was noticed for hearing on July 3, 2014. (ECF No. 42.) On June 26, 2014, the parties filed a joint statement regarding their discovery disagreement. (ECF No. 43). Subsequently, at the July 3, 2014 hearing, attorney John Shaw appeared in person, and attorney David O'Quinn appeared telephonically on behalf of defendant. Plaintiff's counsel, R. Parker White, failed to appear without any notice to the court.
This action was removed to federal court by defendant on December 19, 2012. (ECF No. 1.) Plaintiff presently proceeds on the operative second amended complaint filed on April 4, 2014. (ECF No. 36.) The action arises from plaintiff's reconstructive hip surgery in July 2009, in the course of which the Birmingham Hip Resurfacing ("BHR") System, a mental-on-metal hip resurfacing prosthesis manufactured by defendant, was purportedly placed on plaintiff's right side. According to plaintiff, the system allegedly failed and caused plaintiff to suffer pain and symptoms of cobalt poisoning. The system was ultimately removed in May 2012, and in June 2012, a market recall of a particular component was allegedly initiated. Plaintiff asserts negligence and strict products liability claims against defendant. (
On December 12, 2013, the assigned district judge continued the deadline for disclosure of experts and exchange of expert reports to March 14, 2014. (ECF No. 18.) The present deadline to hear discovery motions is July 17, 2014, and the discovery cut-off date is August 15, 2014. (ECF No. 41.)
On January 14, 2014, plaintiff served expert disclosures identifying four of his treating physicians as non-retained experts who may testify at trial — Drs. Blumenfeld, Vasquez, Chang, and Ong. (
On March 31, 2014, defendant's counsel, finding the expert disclosures deficient, requested a discovery conference with plaintiff's counsel by letter, to which plaintiff's counsel did not respond. (Georgantopoulos Decl. ¶ 3, Ex. B.) On June 3 and 4, 2014, defendant's counsel followed up with phone calls, to which plaintiff's counsel again did not respond. (
The next day, on June 6, 2014, plaintiff served amended expert disclosures. (Georgantopoulos Decl. ¶ 6, Ex. D.) The amended disclosures very broadly identify the role of each treating physician: "Dr. Blumenfeld performed revision surgery for the failed resurfacing procedure"; "Dr. Vasquez treated plaintiff for symptoms and injuries which are as a result of this subject incident"; "Dr. Chang is an internist who treated plaintiff for symptoms and injuries which are as a result of this subject incident."; "Dr. Ong is an oncologist and hematologist." (
Still finding the amended disclosures deficient, defendant's counsel sent a letter to plaintiff's counsel on June 10, 2014, via fax and e-mail, outlining defendant's concerns and requesting a further conference with plaintiff pursuant to Local Rule 251. (Georgantopoulos Decl. ¶ 7, Ex. E.)
On June 12, 2014, defendant filed the instant motion. (ECF No. 42.)
Federal Rule of Civil Procedure 26(a)(2)(C) requires expert disclosures for non-retained experts to 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) a summary of the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C);
In this case, plaintiff's amended disclosures are remarkably similar to the deficient disclosures provided in
(ECF No. 43 at 7.) This is a woefully insufficient response to defendant's motion, and plaintiff fails to explain why defendant had to resort to filing a motion to compel in order to get compliant disclosures. Because defendant's motion is plainly well taken, plaintiff is ordered to provide defendant with supplemental expert disclosures for all expert witnesses in full compliance with Rule 26(a)(2)(C) no later than July 15, 2014.
However, plaintiff's shortcomings here also pose a substantial obstacle to defendant preparing for and completing the depositions of plaintiff's experts prior to the August 15, 2014 discovery cut-off date, which can only be modified by the district judge upon a showing of good cause. At the hearing, defendant's counsel represented that depositions are presently scheduled as follows: Dr. Chang on July 11, 2014; Dr. Vasquez on July 15, 2014; Dr. Ong on July 18, 2014; and Dr. Blumenfeld on July 25, 2014. Defendant's counsel also credibly explained that it had been extremely difficult to coordinate the various doctors' busy schedules, and that Dr. Vasquez alone has demanded $4,000.00 apparently because of the need to close his practice for the day and attend the deposition. In light of the circumstances, defendant requests the court to strike the experts and preclude their testimony. However, because striking the experts would be a very harsh penalty, likely crippling plaintiff's case, the court concludes that lesser measures should first be attempted. As such, the court denies the request to strike the experts, but without prejudice to its renewal at a later juncture before the district judge, if appropriate.
Obviously, providing the supplemental expert disclosures to defendant by July 15, 2014 would not assist defendant with preparing for the depositions of Drs. Chang and Vasquez, presently scheduled for July 11, 2014 and July 15, 2014, respectively. Therefore, unless these depositions can be rescheduled for dates after July 15, 2014, but prior to the August 15, 2014 discovery cut-off date (with no additional costs, such as rescheduling fees or late cancellation fees, to be incurred by defendant), plaintiff shall reimburse defendant for all costs charged by Drs. Chang and Vasquez related to their depositions, including any flat fees or hourly fees.
Finally, the court directs plaintiff's counsel to show cause in writing why he should not be sanctioned in the amount of $500.00 for failure to appear at the hearing on the motion to compel, and failure to meaningfully participate in the related meet-and-confer efforts and drafting of the joint statement.
Accordingly, IT IS HEREBY ORDERED that: