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Kemper v. Fairmont Folsom

January 20, 2009


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Through this action, Plaintiff seeks relief from injuries allegedly suffered as a result of Defendants' violations of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., the Fair Housing Act, 42 U.S.C. § 3601 et seq., the California Disabled Persons Act, Cal. Civ. Code § 54, et seq., and the Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq. Presently before the Court are Plaintiff's Motion to Strike Defendants' Expert Reports and Motion for Summary Judgment.*fn1


Plaintiff is a resident of the Willow Creek apartments in Folsom, California. Willow Creek is owned by Defendant Fairmont Folsom, LLC, and is operated by Defendant CWS Apartment Homes, LLC. According to Plaintiff, he is disabled as a matter of law as he is substantially limited in the major life activity of walking. Plaintiff further alleges that, due to his disabled status, he has suffered discrimination as a result of numerous architectural barriers that exist throughout the Willow Creek complex.

Plaintiff initially filed this action on April 4, 2007. The Court issued its Pretrial Scheduling Order ("PTSO") on October 15, 2007. Pursuant to the mandates of the PTSO, all parties timely submitted their Expert Witness Disclosures on August 13, 2008. Both sides designated accessibility experts and Defendants designated a medical expert, Dr. Sfakianos. Though the PTSO allowed twenty additional days for the disclosure of rebuttal experts, Plaintiff neither objected to Defendants' designation of a physician, nor did Plaintiff make any effort to designate a rebuttal witness.

Plaintiff filed the instant Motion for Summary Judgment on August 21, 2008. Defendants opposed that Motion on September 19, 2008, and Plaintiff replied on October 9, 2008. In Plaintiff's Reply, though he objected to various other evidence submitted by Defendants, Plaintiff failed to raise any objections to Dr. Sfakianos' report.

Subsequently, in its Memorandum and Order dated October 27, 2008, this Court allowed Defendants additional time in which to file a supplement to Dr. Sfakianos' initial report. Defendants responded to the Court's Order on December 4, 2008. Only then, on December 17, 2008, did Plaintiff see fit to object to Defendants' expert. Plaintiff now seeks to have Defendants' expert report stricken both for purposes of Plaintiff's current Motion for Summary Judgment and at trial, or alternatively, leave to amend the PTSO to allow further time for Plaintiff to designate a rebuttal expert and to depose Dr. Sfakianos.

Defendants dispute numerous facts proffered by Plaintiff, least of which is Plaintiff's disabled status. Because the Court finds triable issues of material fact remain unresolved, Plaintiff's Motion for Summary Judgment is denied.


1. Plaintiff's Motion to Strike Defendants' Expert Reports

Plaintiff seeks to have the report of Defendants' expert, Dr. Sfakianos, stricken from the record. Federal Rule of Civil Procedure ("FRCP") 26 requires that, "[i]n addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705...[T]his disclosure must be accompanied by a written report -prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case." Fed. R. Civ. Pro. 26(a)(2)(A)-(B).

That written report must contain, inter alia, "a complete statement of all opinions the witness will express and the basis and reasons for them." Fed. R. Civ. Pro. 26(a)(2)(B)(I). "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. Pro. 37(c)(1).

According to Plaintiff, Dr. Sfakianos' report is incomplete and lacks the detail necessary to comply with Rule 26(a)(2)(B). Thus, Plaintiff seeks to exclude the report under Rule 37. However, this Court finds that Dr. Sfakianos' report substantially complies with the requirements of Rule 26. Therefore, Plaintiff's Motion to Strike is denied.

Moreover, Plaintiff has failed to show the requisite good cause necessary to warrant amendment of the PTSO to allow for further discovery and designation of rebuttal experts. Generally, the Court is required to enter a PTSO within 120 days of the filing of the complaint. Fed. R. Civ. P. 16(b). The scheduling order "controls the course of the action" unless modified by the Court. Fed. R. Civ. P. 16(d). Orders entered before the final pretrial conference may be modified upon a showing of "good cause," Fed. R. Civ. P. 16(b), but orders "following a final pretrial conference shall ...

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