Rice v. Morehouse

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief U.S. District Court Judge.

         INTRODUCTION

         The Court has before it three motions, two filed by plaintiff Rice, and one filed by defendants. The motions are fully briefed and at issue. For the reasons set forth below, the Court will deny both motions filed by Rice and grant in part the motion filed by defendants.

         ANALYSIS

         Rice's Third Motion to Reconsider

         Rice again argues that the Court should reconsider its decision excluding his experts. The Court declines to do so on the basis of its prior rulings and a further analysis set out below.

         The timeline of this case is important. The complaint was filed in 2013 for an incident of excessive force that allegedly occurred in 2011. The Court entered a Case Management Order that set December 5, 2014, as the deadline for discovery, and set the deadline for the filing of Rice's expert reports, as September 15, 2014 (with rebuttal expert reports due October 29, 2014). As the parties completed discovery, they filed motions for summary judgment. Those motions were still not resolved as the discovery deadline arrived, and so the Court entered an Order extending the discovery deadline “to a date to be determined at a status conference held soon after the Court issues its decision on the motions for summary judgment.” See Order (Dkt. No. 83). That Order did not extend the deadline for filing expert reports - which had expired by that time - but did state that “any party seeking to extend the expert disclosure deadline shall file a motion seeking that relief.” Id. Rice never filed any such motion.

         After the Ninth Circuit appeal was resolved and the case was ready for trial, the Court issued an Order setting the deadlines for, among other things, the identification of witnesses who would testify at trial. Rice points out that he identified his expert witnesses by the deadline the Court set for the identification of witnesses at trial. He argues that the deadline for the identification of witnesses necessarily includes the deadline for the filing of written expert reports because they are identical deadlines. But they are two entirely different things: The disclosure of expert written reports is governed by Rule 26(a)(2)(A) and the identification of witnesses is governed by Rule 26(a)(3)(A). The Court's orders set separate deadlines for each, as contemplated by these Rules.

         Rice's failure to comply with the expert report deadlines subjects him to the sanction of exclusion under Rule 37(c) unless he can show that the failure was harmless or substantially justified. The failure was not harmless because any continuance to allow the defense an opportunity to rebut Rice's late-filed experts would cause further substantial delay and expense. No. argument has been presented that the failure to identify timely the excessive force experts was substantially justified. With regard to the PTSD experts, Rice argues that he did not know he had PTSD until it was diagnosed by Dr. Mark Cook in December of 2017, and that his counsel then quickly found Dr. Davidson, an expert on PTSD, and notified plaintiffs in February of 2018. A true late-manifesting injury might be a legitimate reason to continue a trial. But a failure to diligently marshal all evidence of injury will never justify a continuance. So which is it here? Is there any evidence that Rice's alleged PTSD is a true late-manifesting injury that could not have been discovered, even with diligence, during the over six years that have passed since the alleged excessive force? Rice has submitted nothing. There is no such testimony in affidavit form from Dr. Cook or Dr. Davidson to support Rice's motion. Indeed, it appears from Rice's deposition that he suspected PTSD earlier. His deposition testimony indicates that he went to Dr. Cook to get a second opinion. Previously, Rice was treated by doctors from the Veteran's Administration, all of whom were barred from testifying in this trial by federal regulations, accordingly to Rice's counsel. Dr. Cook was not affiliated with the Veteran's Administration but was in private practice. Allowing plaintiffs to get second opinions on the eve of trial, and admit those into evidence as the testimony of a treating physician, would be to sanction trial by ambush. Alternatively, a continuance (in the absence of evidence of justification) would be highly prejudicial to the defense as it would stretch this case out into its fifth year and require the defense, after gearing up for this trial, to gear up once again many months from now.

         Given these circumstances, the Court cannot find Rice has carried his burden of showing substantial justification. Accordingly, the third motion for reconsideration must be denied.

         Rice's Motion to Declare Requests for Admissions be Deemed Admitted

         Rice argues that defendants Abercrombie and Shaffer failed to respond to his requests for admission and that the Court should therefore deem the requests admitted. But the record shows both officers did submit responses. See Freeman Affidavit (Dkt. No. 176-1); Muir Declaration (Dkt. No. 195-1). This motion will be denied.

         Defendants' Motion for Clarification

         In their motion, defendants seek to clarify the Court's earlier decision excluding any medical records not properly produced in response to discovery requests. The defendants now ask for more specificity in that exclusion, urging the Court to exclude any evidence regarding how Rice “felt, how the alleged injuries impacted him, what he did in response to the physical or emotional ...