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Rosario Juarez v. Autozone Stores


July 12, 2011


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


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.


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 Plaintiff. ECF No. 95. The Court gave Defendant the opportunity to renew its motion to compel after deposing witnesses and conducting further discovery. Id. at 2. Defendant did not do so.

Defendant provided Dr. Kalish's report to Plaintiff on May 24, 2011. Def.'s Mot. Ex. H; Pl.'s Opp'n at 2. Subsequently, on June 2, 2011, Plaintiff designated Dr. Dominick Addario "in rebuttal to the report and testimony submitted by defendant from Dr. Mark Kalish." Def.'s Mot. Ex. I, at 2. Plaintiff further stated that "Dr. Addario will submit a report and is expected to testify . . . concerning . . . the psychological damages suffered by Plaintiff as a result of the subject termination and her employment with defendants." Id. Plaintiff served Defendant with Dr. Addario's report on June 14, 2011. Def.'s Mot. Ex. J.


Defendant moves to strike Plaintiff's expert designation on the grounds that it is untimely and in contravention of both this Court's scheduling Order (ECF No. 85) and Plaintiff's previous stipulations pertaining to her emotional distress claim. Def.'s Mem. of P. & A. at 4-6. Plaintiff argues that her designation is not untimely and that she never waived the right to allege that she suffered substantial emotional distress. Pl.'s Opp'n at 4-9.

A. Timeliness of Expert Designations and Disclosures

Defendant contends that Plaintiff's designation of Dr. Addario is untimely because she served Defendant with this expert designation "over three months after the deadline to designate experts had passed and just one day before the discovery cut off . . . ." Def.'s Mem. of P. & A. at 3. Plaintiff, however, argues that Defendant "fails to consider or explain how Defendant's conduct contributed to the timing of Plaintiff's use and disclosure of Dr. Addario." Pl.'s Opp'n at 4. Plaintiff insists that her decision to designate Dr. Addario was made upon seeing Dr. Kalish's report, which Defendant did not serve until May 24, 2011. Id. at 6.

Plaintiff insists that no deadlines were extended when the parties' IME dispute was before the Court, and she argues that Defendant ignored this Court's Scheduling Order (ECF No. 85) by failing to submit Dr. Kalish's expert report as required on March 25, 2011. Pl.'s Opp'n at 4, 6. In support of this contention, Plaintiff cites the Court's Order setting a briefing schedule to resolve the parties' IME dispute, which advised the parties that "if the Court grants Defendant's motion to compel, the Court will extend the rebuttal expert disclosure deadline. However, until the Court extends a deadline, all dates and deadlines remain as previously set." Id. at 4 (quoting ECF No. 88). Plaintiff's rigid interpretation of the Court's language-namely, that Dr. Kalish was to author his expert report prior to the Court's Order resolving the motion to compel-renders the Court's Order illogical and inefficient. Plaintiff's argument fails to recognize that Dr. Kalish's report was contingent upon a ruling from this Court regarding an IME.*fn2 Although Plaintiff is technically correct in that the Court did not explicitly extend the deadline by which Defendant could serve a written report by Dr. Kalish, the existence of the IME dispute necessitated such an extension and the Court's briefing schedule implicitly acknowledged as much.*fn3 See ECF No. 88 (requiring the IME dispute to be fully briefed by April 6, 2011). Contrary to Plaintiff's interpretation, the Court's cautionary language regarding deadline extensions did not encompass the deadline for Dr. Kalish's expert report. Rather, given that this action commenced on March 5, 2008 (ECF No. 1), the Court instructed the parties that "deadlines remain as previously set" to ensure that no unnecessary delays occurred and to clarify that the June 3, 2011 discovery cut-off date remained in place. ECF Nos. 85 & 88. Pursuant to Plaintiff's interpretation of the Court's Order, Dr. Kalish should have authored his report in the midst of the parties' discovery dispute, despite the fact that the scope of Dr. Kalish's report would be determined only upon resolution of the IME dispute. Thus, if the Court permitted Defendant to conduct an IME, Dr. Kalish would have authored one report, only to author another-presumably materially different-report. The Court's Order did not require such a result.

Although Plaintiff presently is adamant that Defendant "improperly and untimely disclosed its psychiatric expert" (Pl.'s Opp'n at 1), Plaintiff waited to make this novel argument until faced with Defendant's motion to strike. Plaintiff's argument that the timing of her expert designation is inescapably the result of the timing of Defendant's expert report is unavailing. As a result, Plaintiff's designation of Dr. Addario is untimely.

B. Substance of Plaintiff's Emotional Distress Claim

Plaintiff further argues that, even if the designation of and report by Dr. Addario were untimely, "such untimeliness was substantially justified, was beyond plaintiff's control and has caused no harm to the defendant." Pl.'s Opp'n at 7. Defendant responds that Plaintiff's untimely expert designation is the result of her own tactical decisions and runs afoul of "all of her arguments and stipulations [previously] offered to this Court . . . ." Def.'s Reply at 3.

Plaintiff alleges that she in no way "waived the right to allege that plaintiff has suffered substantial emotional distress." Pl.'s Opp'n at 8. Plaintiff further argues that she never de-designated her treating physicians or made stipulations regarding their testimony. Id. at 5, 8. These statements and arguments are inaccurate. In her opposition to Defendant's motion to compel an IME, Plaintiff repeatedly stated that her mental condition was not "in controversy" in this case because she did not seek medical treatment for any emotional injury resulting from her alleged discrimination or demotion, she was not currently suffering from emotional distress, and she only suffered "garden variety" emotional distress.*fn4 ECF No. 90. During the telephonic conference, the Court confirmed these facts and conditions with Plaintiff's attorney, discussed with the attorneys Defendant's proposed stipulations, and obtained the parties' agreement regarding the scope of Plaintiff's emotional distress claims. Based upon the parties' agreements, the Court denied Defendant's motion to compel an IME. ECF No. 95. As the Court explained in its Order:

Counsel for Plaintiff agreed to withdraw two previously-designated expert witnesses: Dr. Shahzad Kahn and Ms. Carla Canedo-Villa, M.A. See ECF No. 89-1 at 6; ECF No. 89-3 at 50-51. Counsel for Plaintiff also agreed to Defendant's proposed stipulation that "Juarez will only refer to 'humiliation, embarrassment, anger or anxiety' when describing or referring to what she experienced as a result of the conduct that she attributes to Autozone." ECF No. 91 at 3. Based upon these agreements and the fact that Plaintiff is not alleging any ongoing emotional distress, the Court finds that Plaintiff's mental state is not "in controversy" and an independent mental examination is not warranted at this time. See Turner, 161 F.R.D. at 98.

ECF No. 95 at 3. Plaintiff did not object in any way to this Court's statement regarding Plaintiff's agreement. If Plaintiff and her attorney had not agreed to withdraw the two designated psychological or psychiatric expert witnesses and to limit the scope of the claimed emotional distress, Plaintiff had several months to notify the Court or opposing counsel. The fact that she did not do so reinforces the accuracy of the Court's statement.

Contrary to her argument, Plaintiff's new and untimely expert designation is not harmless. See Pl.'s Opp'n at 7-8. Plaintiff's new expert sets forth an emotional distress claim that is 180 degrees away from the position Plaintiff adopted in April. In denying the motion to compel an IME, the Court relied on the agreements and stipulations made by Plaintiff during the conference call and summarized in the April Order. ECF No. 95. Because Plaintiff's new emotional distress claim contradicts those agreements and asserts new claims, it also would mandate an IME, as well as a new report issued by Dr. Kalish, and perhaps additional discovery. Because this latest expert designation occurred several months after the deadline and one day before the close of discovery, and involves a significant change in position, it is not harmless.

Plaintiff fails to adequately explain how or why she failed to designate Dr. Addario on February 4, 2011 and her new emotional distress claim, as asserted by Dr. Addario, contradicts her former written and verbal agreements. Because Plaintiff had ample opportunity to timely designate an expert and to allege significant emotional distress and chose not to do so, the Court finds that her last-minute attempt to reverse that decision is neither "substantially justified [n]or harmless."*fn5 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). For the foregoing reasons, the Court GRANTS Defendant's Motion to Strike Plaintiff's Untimely Designation of Expert Psychiatrist, Dominick Addario, M.D.


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