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Paliwoda v. Showman

United States District Court, Tenth Circuit

November 6, 2013

JACOB PALIWODA, Plaintiff,
v.
DR. JASON SHOWMAN, Defendant.

MEMORANDUM AND ORDER

K. Gary Sebelius U.S. Magistrate Judge

This matter comes before the court upon Defendant Dr. Jason Showman’s Motion to Strike Plaintiff Jacob Paliwoda’s Expert Witness Disclosures (ECF No. 44). Dr. Showman argues that Mr. Paliwoda’s initial expert witness disclosure of Dr. Timothy Taylor and two subsequently revised disclosures fail to comply with Federal Rules of Civil Procedure 26(a)(2)(B). Specifically, Dr. Showman asserts that the expert disclosures were not accompanied by a written expert report that: 1) was prepared and signed by Dr. Taylor; 2) contains the basis and reasons for Dr. Taylor’s opinions; 3) contains the facts and data considered by Dr. Taylor when formulating his opinions; 4) contains any exhibits that will be used to summarize or support Dr. Taylor’s opinions; and 5) contains adequate information regarding cases in which Dr. Taylor previously testified as an expert. Dr. Showman asserts that he is prejudiced by Mr. Paliwoda’s noncompliance with the Rules and requests that Dr. Taylor be stricken as an expert witness. The Motion has been fully briefed and is ripe for this court’s decision.[1] For the following reasons, the court hereby denies Dr. Showman’s Motion.

I. Background

On November 21, 2012, Mr. Paliwoda filed this medical malpractice action against Dr. Showman for allegedly failing to provide him with proper dental care and treatment. According to Mr. Paliwoda, on or about May 9, 2005, he suffered a dental trauma and sought treatment from Dr. Showman. Mr. Paliwoda alleges that Dr. Showman negligently treated him and, as a result, he sustained permanent damage.

On February 6, 2013, the court entered a Scheduling Order governing all case management deadlines in this matter. The Scheduling Order established that disclosures required by Rule 26(a)(2), including reports from retained experts, were to be served by Mr. Paliwoda on or before July 1, 2013. On July 1, 2013, Mr. Paliwoda served Dr. Showman with his expert witness disclosure of Dr. Taylor.[2] Since July 1, 2013, however, Mr. Paliwoda has supplemented or revised this disclosure on three separate occasions.

The first revised disclosure was served by Mr. Paliwoda on July 3, 2013. On July 5, 2013, Dr. Showman’s attorney, Tracie England, and Mr. Paliwoda’s attorney, James R. Shetlar, discussed the sufficiency of the two previously served disclosures, particularly their accompanying expert reports.[3] On July 17, 2013, Mr. Paliwoda served his second revised disclosure. Both the first and second revised disclosures were accompanied by expert reports that modified and eliminated some of Dr. Taylor’s opinions he included in his initial report. In addition, the second revised report included an electronic signature and signature block of Dr. Taylor, which was previously a handwritten signature and signature block of Mr. Shetlar.

On July 25, 2013, Dr. Showman filed the present Motion arguing that all three disclosures, particularly the second revised disclosure, contained expert reports that do not comply with Rule 26(a)(2)(B) without any substantial justification. Based upon this argument, Dr. Showman requests the court strike Dr. Taylor as an expert witness and require Mr. Paliwoda to pay the fees and costs incurred in preparing this Motion. On August 6, 2013, Mr. Paliwoda filed with the court a third revised disclosure.[4] The next day, Mr. Paliwoda responded to the present Motion arguing that his initial disclosure was accompanied by an expert report that complied with Rule 26(a)(2)(B).

II. Procedural Conference Requirement

Rule 37(a)(1) and D. Kan. Rule 37.2 require a moving party, in good faith, to confer with opposing counsel about any discovery disputes before filing a motion to resolve the discovery issue. When a motion is filed, it “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.”[5] The duty to confer generally requires counsel to “converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.”[6]

In addition to the meet-and-confer requirement set forth in the Rules, the Scheduling Order, as amended, places additional obligations on a party objecting to an expert witness disclosure. The Scheduling Order states that:

The parties shall serve any objections to such disclosures (other than objections pursuant to Fed.R.Evid. 702-705, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), or similar case law), within 11 days after service of the disclosures upon them. These objections should be confined to technical objections related to the sufficiency of the written expert disclosures (e.g., whether all of the information required by Rule 26(a)(2)(B) has been provided, such as lists of prior testimony and publications). These objections need not extend to the admissibility of the expert’s proposed testimony. If such technical objections are served, counsel shall confer or make a reasonable effort to confer consistent with requirements of D. Kan. Rule 37.2 before filing any motion based on those objections.

Turning to this case, the undersigned strongly believes the parties could have resolved this discovery dispute without court intervention. On July 5, 2013, a few days after Mr. Paliwoda served his first revised expert disclosure, Ms. England e-mailed Mr. Shetlar to try and rectify the alleged deficiencies of Dr. Taylor’s expert report.[7] Mr. Shetlar responded and inquired into what Ms. England thought was deficient.[8] Ms. England referred him to the Federal Rules of Civil Procedure governing expert reports, but provided no further guidance.

On July 8, 2013, Dr. Showman filed with the court a formal objection to Mr. Paliwoda’s initial and first revised expert disclosures. The objection stated that the disclosures “are deficient in that they fail to comply with Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. Neither disclosure was accompanied by a written report, prepared and signed by the expert, containing the items referenced in sections (i) through (vi) of Rule 26(a)(2)(B).”[9] The formal objection also stated “counsel for defendant notified counsel for plaintiff via e-mail of such deficiencies, and a dialogue ensued.”[10] That same day, Mr. Shetlar e-mailed Ms. England stating that he would have a revised report to her the following day.[11] On July 9, 2013, Mr. Shetlar e-mailed Ms. England stating that a new report would be sent out at a later date due to an emergency root canal surgery he had scheduled for the next day.[12] On July 17, 2013, Mr. Shetlar e-mailed Mr. Paliwoda’s second revised expert disclosure to Ms. England and indicated that he would be out on vacation until the following week.[13] According to defense counsel’s time records, preparation of the Motion to Strike commenced that same day.[14] On the date of Mr. Shetlar’s return from vacation, Ms. England filed the present Motion, apparently without any intervening discussion or contact with Mr. Shetlar regarding the second revised expert disclosure.

After reviewing the correspondence between the parties, the court finds that Ms. England did not converse, confer, compare views, consult, and deliberate with opposing counsel as contemplated by the Rules. Rather, Ms. England continually directed Mr. Shetlar to the Rules as “it will be self explanatory.”[15] Only after filing the present Motion were Dr. Showman’s concerns truly raised. As a result, the court finds that the meet-and-confer obligation was not satisfied. This Motion could be denied on this ground alone. However, the court, in its discretion, will consider the merits of Dr. Showman’s arguments.

III. Legal Standard

Rule 26 governs the disclosure of expert testimony. It provides, in relevant part, that “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.”[16] “This provision imposes a ‘duty to disclose information regarding expert testimony sufficiently in advance of trial that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses.’”[17] “[T]his disclosure must be accompanied by a written report—prepared and signed ...


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