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Lonsbury v. Woods

United States District Court, E.D. Kentucky, Central Division, Lexington

June 26, 2017

ILYSE LONSBURY, Plaintiff,
v.
KAREN N. WOODS and GEICO INSURANCE COMPANY, Defendants.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves, United States District Judge

         Pending before the Court are dueling motions regarding the plaintiff's failure to meet a Scheduling Order deadline. [Record Nos. 45, 46, 49] The plaintiff's deadline to disclose expert witnesses (and their written reports), as required by Rule 26(a)(2), was May 26, 2017. [Record No. 30 at ¶2] The plaintiff did not submit her disclosures until June 5, 2017. [Record No. 47] On May 31, 2017, and June 2, 2017, respectively, Defendants GEICO and Woods filed separate but related motions to exclude all expert proof by the plaintiff. [Record Nos. 45 and 46] On June 5, 2017, together with her disclosures, the plaintiff filed a motion for an extension of time. [Record No. 49] For the reasons discussed below, the extension of time will be granted and the defendants' motions denied.

         The defendants base their motions to exclude on the prejudicial effect of receiving no Rule 26(a)(2) disclosures from the plaintiff. They argue that the plaintiff's failure to disclose “deprives the defense of fair notice and opportunity to prepare a meaningful defense” because, among other things, it “requires the defense to purely speculate” about which portions of the plaintiff's “extensive medical history and treatment” the plaintiff will rely on at trial. [Record No. 45 at 7] Defendant Woods argues that even if the plaintiff were to seek relief, “to grant the Plaintiff an extension while holding the Defendants to the July 21st deadline would unfairly and unduly prejudice the Defendants and their ability to properly prepare their defense.” [Record No. 46 at 2]

         Less than a week after the defense motions were filed, the plaintiff submitted her Rule 26(a)(2) disclosures, listing three of her treating physicians as well as a vocational expert, and providing the vocational expert's report. [Record No. 47] Plaintiff's counsel simultaneously filed a motion for an extension of time in which she attributes the missed deadline to an oversight in the transition to new case management system. [Record No. 49] Counsel for the plaintiff asserts that she was on vacation when she became aware of the missed deadline (tipped off only by GEICO's motion), and made every effort to promptly submit the disclosures. [Id. at 1-2] The plaintiff requests that the Court extend both the plaintiff's and the defendants' disclosure deadlines by eleven days, such that her disclosure will be deemed timely, and the defendants will not be prejudiced by the delay. [Id. at 2] The plaintiff points out that the disclosure was made more than two weeks prior to a scheduled neutral expert evaluation, that the discovery deadline is nearly three months away, and the trial is over eight months away. [Id. at 3] Therefore, there is adequate time to perform additional expert discovery. [Id.]

         In response to the plaintiff's extension of time motion, defendant GEICO argues that the calendar error is pretextual, and the reason the plaintiff did not have the disclosures timely filed is simply because they were not ready. [Record No. 50 at 2] GEICO attaches an e-mail from plaintiff's counsel's staff suggesting that the expert disclosures were already prepared prior to the defense motions being filed. [Id.] GEICO argues that this assertion was false, as exhibited by the date on the vocational expert's report (June 2, 2017). [Id.] GEICO suggest that the diligence of the movant is the primary consideration for such an extension, and that the plaintiff's actions show a plain lack of diligence. [Id. at 3]

         Moreover, GEICO submits that the June 5, 2017, disclosure provided by the plaintiff are defective under Rule 26(a)(2)(B) and (C). [Id. at 4] GEICO argues that the notice “contain[s] numerous disclosures of opinions to be given by her treating physicians that are not contained in any of the medical records provided to date and go beyond the permissive core of mere treatment and diagnosis…” [Id. at 4 (emphasis in original)]. Further, while the vocational expert's report relies on the plaintiff's recent Social Security disability award, the plaintiff never produced supplemental records regarding the disability award. [Id. at 5] Lastly, GEICO argues that

[i]t is … unreasonable to expect the defense to suddenly scramble for a vocational expert for a Plaintiff who - until now - was already a totally disabled retiree and medically declared unable to perform any kind of work at all (part time or otherwise) since 2012, simply because Plaintiff [sic] chose to wait until a week after the expert deadline to send his [sic] client to a new [sic] hired expert.

[Id. at 6]

         Defendant Woods incorporates GEICO's response and provides further arguments for why the plaintiff's tardy disclosure is not harmless. [Record No. 51] Woods points out that no Social Security Administration record has ever been disclosed to the defendants evidencing a determination that the motor vehicle accident contributed to the SSA's finding of disability. [Id. at 2] Woods suggests that it is significant that the plaintiff retired from her employment with the Lexington Fayette Urban County Government for purposes of applying for disability, years before the motor vehicle accident. [Id. at 3]

         Woods also suggests that the doctors' opinions as disclosed appear to contradict the plaintiff's previous testimony and the physicians' past assertions about the time at which plaintiff became unable to work. [Id.] While Woods acknowledges that the present motion is not the appropriate place to address the credibility of witnesses, she feels that the insufficiency of the June 5, 2017, disclosures is unfairly prejudicial to the defendants, which will undermine their ability to prepare a defense. [Id. at 4]

         Replying to GEICO and Woods, the plaintiff argues that discovery is ongoing and that there are in fact thousands of pages in the Social Security records, which have been requested from SSA by multiple parties. [Record Nos. 54 and 53] The plaintiff includes an Appeals Council decision linking the reconsideration of the plaintiff's disability status to the motor vehicle accident. [Record No. 55-1]

         Turning back to the defendants' motions to exclude, the plaintiff argues that the delayed disclosure is harmless under the test set forth in Howe v. City of Akron, 801 F.3d 718, 747-48 (6th Cir. 2015). [Record Nos. 52 and 53] The plaintiff suggests that the use of treating doctors as experts was only natural, and that the use of a vocational expert was easily foreseeable given the pleadings. [Record No. 52 at 3-4] The plaintiff argues that the defense had access to SSA records and was aware of her position regarding the motor vehicle accident, i.e., that it was a basis of the disability award. [Id. at 5 (citing deposition)]

         Finally, the plaintiff argues that expert proof is essential to her case and the delay will not disrupt the trial. She argues that without her treating physicians to testify as to causation, she will not survive a Rule 56 motion, and without her vocational expert, she cannot establish damages. [Id. at 5-6] Moreover, an eleven-day extension ...


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