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Rosario Juarez v. Autozone Stores

July 12, 2011

ROSARIO JUAREZ,
PLAINTIFF,
v.
AUTOZONE STORES, INC., AND DOES 1 THROUGH 20,
DEFENDANTS.



The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge

ORDER GRANTING DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S UNTIMELY DESIGNATION OF EXPERT PSYCHIATRIST, DOMINICK ADDARIO, M.D. [ECF No. 100]

On June 17, 2011, counsel for Defendant Autozone Stores, Inc. ("Defendant") contacted the Court regarding a discovery dispute, for which the Court set a briefing schedule. ECF No. 99. Pursuant to the Court's Order, on June 23, 2011, Defendant filed its motion to strike Plaintiff's expert designation (ECF No. 100), Plaintiff filed her opposition on June 30, 2011 (ECF No. 104), and Defendant filed its reply on July 7, 2011 (ECF No. 106). Having reviewed the briefing, the Court GRANTS Defendant's Motion to Strike Plaintiff's Untimely Designation of Expert Psychiatrist, Dominick Addario, M.D.

FACTUAL AND PROCEDURAL BACKGROUND

This Court's Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings*fn1 directed the parties as follows:

Each party shall serve on all opposing parties a list of experts, whom that party expects to call at trial, on or before February 4, 2011. Each party may supplement its designation in response to the other party's designation no later than February 25, 2011. Expert designations shall include the name, address, and telephone number of each expert and a reasonable summary of the testimony the expert is expected to provide. The list shall also include the normal rates the expert charges for deposition and trial testimony.

The parties must identify any person who may be used at trial to present evidence pursuant to Rules 702, 703 or 705 of the Federal Rules of Evidence. This requirement is not limited to retained experts.

Please be advised that failure to comply with this section or any other discovery order of the Court may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on the introduction of experts or other designated matters in evidence.

All expert disclosures required by Fed. R. Civ. P. 26(a)(2) shall be served on all parties on or before March 25, 2011. Any contradictory or rebuttal information shall be disclosed on or before April 15, 2011. In addition, Fed. R. Civ. P. 26(e)(2) imposes a duty on the parties to supplement the expert disclosures made pursuant to Fed. R. Civ. P. 26(a)(2)(B) by the time that pretrial disclosures are due under Fed. R. Civ. P. 26(a)(3) (discussed below). The parties are advised to consult with Fed. R. Civ. P. 26(a)(2) regarding expert disclosures. Such disclosures shall include an expert report, all supporting materials, a complete statement of all opinions to be expressed and the basis and reasons therefor, the data or other information considered by the expert in forming the opinions, any exhibits to be used as a summary of or support for the opinions, the qualifications of the witness including a list of all publications authored by the witness within the preceding ten years, the compensation to be paid for the study and testimony, and a list of other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

This disclosure requirement applies to all persons retained or specially employed to provide expert testimony or whose duties as an employee of the party regularly involve the giving of expert testimony.

Please be advised that failure to comply with this section or any other discovery order of the Court may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on the introduction of experts or other designated matters in evidence.

ECF No. 85 at 1-2. The parties were therefore informed of the relevant expert designation and disclosure deadlines, and they were cautioned regarding the possible imposition of sanctions for failure to comply with the Court's Order.

On February 4, 2011, Defendant filed a Notice of Non-Designation of Expert Witnesses and Reservation of Right to Designate Rebuttal Expert Witnesses. ECF No. 87. Defendant stated that it "does not presently intend to offer the testimony of any expert witnesses at trial," but "expressly reserves its right to designate rebuttal expert witnesses at the time designated for the second exchange of expert witness information . . . ."

Id. at 1. In her First Designation of Expert Witnesses, dated February 4, 2011, Plaintiff listed Vickie Wolf as a retained expert witness and Plaintiff also reserved the right to call Dr. Patricia Stevenson, Dr. Khan Shahzad [sic], and Carla Cangdo [sic], three "[m]edical providers who may be asked to offer opinion testimony." Def.'s Mot. Ex. B, at 2. Plaintiff stated that "Dr. Shahzad and Ms. Cangdo [sic] treated Ms. Juarez for mental/emotional distress related to her employment and her pregnancy. These medical providers will provide testimony related to this care." Id. at 3. In its Supplemental Expert Witness Disclosure, dated February 25, 2011, Defendant stated that it intended to offer the opinions and testimony of Robert Wallace and Dr. Mark Kalish. Def.'s Mot. Ex. C, at 1-2. Defendant explained that "Dr. Kalish will provide reply and/or rebuttal testimony as to the opinions, methodology, assumptions and conclusions of opinions reached by Plaintiff's designated psychiatric experts." Id. at 2.

On March 18, 2011, counsel for Plaintiff and counsel for Defendant jointly contacted the Court regarding a discovery dispute-namely, whether Dr. Kalish should be permitted to conduct an Independent Mental Examination ("IME") of Plaintiff-for which the Court set a briefing schedule. ECF No. 88. Upon completion of the briefing, the Court held a telephonic, attorneys-only case management conference, during which counsel for Plaintiff agreed to certain stipulations proposed by counsel for Defendant. ECF Nos. 93 & 95. On April 21, 2011, in an Order premised upon the verbal stipulations expressed by counsel during the telephonic conference, the Court denied without prejudice Defendant's motion to compel an IME of ...


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