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Ellis v. Corizon, Inc.

United States District Court, D. Idaho

November 30, 2018

KENT RICHARD ELLIS, Plaintiff,
v.
CORIZON, INC.; DR. YOUNG; NP SEIGERT; PA TAKAGI; NP GELOK; NP SHAFFER, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL CHIEF JUDGE

         INTRODUCTION

         Before the Court is a motion by Defendants Corizon, Inc., Dr. Young, N.P. Gelok, P.A. Takagi, and N.P. Shaffer (collectively, the “Corizon Defendants”) to strike Plaintiff Kent Richard Ellis' (“Ellis”) expert reports. Dkt. 108. Ellis has filed expert reports written by the following individuals: Dr. Ronald Kristensen, nurse practitioner Margaret Aubin, and Tim Gravette. Ellis opposes the Corizon Defendants' motion to strike (Dkt. 112) and has filed a Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 11(c). Dkt. 115. For the following reasons, the Court GRANTS the Corizon Defendants' motion to strike (Dkt. 108) with respect to N.P. Aubin's report. The Court DENIES the Corizon Defendants' motion to strike (Dkt. 108) with respect to Dr. Kristensen's report and Mr. Gravette's report. Because the Court grants the Corizon Defendants' motion in part, it will DENY Ellis' Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 11(c) (Dkt. 115).

         BACKGROUND

         1. Expert Disclosure Sequencing

         The sequencing of expert disclosure in this case has been atypical. Early on in this matter, the Court issued a Case Management Order containing the following expert disclosure deadlines: Plaintiff's disclosure of experts by July 17, 2017; Defendants' disclosure of experts by August 31, 2017; and Plaintiff's disclosure of rebuttal experts by September 29, 2017. Dkt. 31 at 3. As the Court indicated in its order, the Parties were required, pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), to provide a report for each disclosed expert. Dkt. 31 at 4.

         Ellis did not disclose any experts on July 17, 2017. See Dkt. 112 at 2. The Corizon Defendants' disclosed expert reports from Dr. Charles Schneider, Dr. Robert Jones, and nurse practitioner Patricia Workman on August 31, 2017.[1] On September 29, 2017[2], Ellis disclosed and provided reports from Dr. Kristensen and N.P. Aubin. Ellis characterizes Dr. Kristensen and N.P. Aubin as rebuttal experts.

         During this same period, Ellis filed an amended complaint on September 21, 2017. Dkt. 54. On October 19, 2017, the Court conducted a scheduling conference to revise the Case Management Order in light of Ellis' amended complaint. Dkt. 62. The Parties filed a joint litigation plan in which Ellis agreed that he would only supplement his expert disclosure to include experts retained in support of the newly added claims against the nurse practitioner Rona Siegert[3] (“Siegert”). Dkt. 53. The Court issued an Amended Case Management Order incorporating this agreement. Dkt. 62. Mr. Gravette's report was subsequently disclosed on February 28, 2018 - the date of initial disclosure for expert witnesses in Ellis' case against N.P. Siegert.

         2. Corizon Defendants' Motion To Strike And Ellis' Opposition

         The Corizon Defendant's Motion to Strike seeks to preclude Dr. Kristensen, N.P. Aubin, and Mr. Gravette from offering expert testimony. Corizon Defendants argue Ellis is “improperly [] trying to back door untimely expert disclosures through rebuttal expert disclosures or expert disclosures against a co-defendant.”[4] Dkt. 108-1 at 6.

         In response, Ellis argues that the Corizon Defendants' own actions led to the late disclosure. In particular, Ellis alleges that because the Corizon Defendants failed to obtain (let alone disclose) x-rays taken in 2006, 2008, and 2013, Dr. Kristensen was unable to offer an opinion with medical certainty related to the care that Ellis received. Dkt. 112-2 at ¶ 6. As a result, Dr. Kristensen would only consent to serving as a rebuttal expert. With respect to N.P. Aubin's and Mr. Gravette's reports, Ellis flatly asserts, without any alternative arguments, that the reports were timely disclosed. Dkt. 112 at 2.

         LEGAL STANDARD

         Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose their expert witnesses. The timing of disclosure of both case-in-chief and rebuttal experts is committed to the court. Fed.R.Civ.P. 26(a)(2)(D). To prevent plaintiffs from sandbagging defendants by withholding materials until the rebuttal report disclosure deadline (as it does in this case, this deadline normally falls after defendant's case-in-chief expert disclosure deadline), Rule 26(a)(2)(D)(ii) provides that rebuttal evidence must be intended “solely to contradict or rebut evidence on the same subject matter identified by another party.” This Court has previously stated that “[r]ebuttal expert testimony is limited to ‘new unforeseen facts brought out in the other side's case … [and] cannot be used to advance new arguments or new evidence.” Columbia Grain, Inc. v. Hinrichs Trading, LLC, 3:14-CV-115-BLW, 2015 WL 6675538, at *2 (D. Idaho Oct. 30, 2015) (quoting Century Indem. Co. v. Marine Group, LLC, 3:08-cv-1375-AC, 2015 WL 5521986 at *3 (D. Or. Sept. 26, 2015)).

         Pursuant to Rule 37(c)(1), if a party fails to identify a witness as required by Rule 26(a), the party is not allowed to use that witness at trial unless the failure was substantially justified or is harmless. Fed.R.Civ.P. 37(c)(1). “Rule 37(c)(1) is a ‘self-executing,' ‘automatic' sanction designed to provide a strong inducement for disclosure.” Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011) (internal citation omitted). The burden of ...


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