United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge.
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.
Third Motion to Reconsider
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
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.
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.
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.
these circumstances, the Court cannot find Rice has carried
his burden of showing substantial justification. Accordingly,
the third motion for reconsideration must be denied.
Motion to Declare Requests for Admissions be Deemed
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.
Motion for Clarification
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 ...