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Barrera v. Cardenas Markets, Inc.

United States District Court, D. Nevada

February 17, 2017

GABRIELA BARRERA, Plaintiff,
v.
CARDENAS MARKETS, INC., et al., Defendants

          ORDER RE: MOTION TO STRIKE (ECF NO. 14)

          GEORGE FOLEY, JR. United States Magistrate Judge

         This matter is before the Court on Defendant's Motion to Strike Plaintiff's Initial Expert Disclosures (ECF No. 14), filed on January 18, 2017. Plaintiff filed her Opposition (ECF No. 16) on January 31, 2017, and Defendant filed its Reply (ECF No. 17) on February 2, 2017. Also before the Court is Plaintiff's Motion to Strike Defendant's Reply Brief (ECF No. 18). The Court conducted a hearing in these matters on February 15, 2017.

         BACKGROUND

         Plaintiff Gabriela Barrera filed her complaint in the Nevada District Court, Clark County, Nevada on March 16, 2016. Complaint (ECF No. 1-2). Defendant filed its answer on April 19, 2016, (ECF No. 1-3), and thereafter removed the action to federal court on June 16, 2016 based on diversity of citizenship between the parties. Petition for Removal (ECF No. 1). Plaintiff alleges that she suffered bodily injury damages as the result of a slip and fall accident in Defendant's store on August 13, 2014. The initial scheduling order entered on August 18, 2016, set November 10, 2016 as the deadline for initial expert witness disclosures. Scheduling Order (ECF No. 9). On November 14, 2016, the Court granted the parties's stipulation to extend the scheduling order deadlines. The new deadline for initial expert witness disclosures was December 12, 2016. The deadline for rebuttal expert disclosures was January 10, 2017, and the discovery cut-off date was February 8, 2017. Order (ECF No. 12).

         Plaintiff served her “List of Witness and Document Disclosure Pursuant to FRCP 26(a) and (c)” on July 13, 2016. Opposition (ECF No. 16), Exhibit 1. This was more than a month before the entry of the first scheduling order on August 18, 2016. Plaintiff's list of witnesses included “[t][he Person(s) Most Knowledgeable” for the following medical providers: Spinal Rehabilitation Center - S. Rainbow; Jeffrey Muir, M.D.; Las Vegas Pharmacy, Inc.; Strehlow Radiology Consulting, LLC; Critical Care Medical Consultants; Pueblo Medical Imaging; Anesthesia and Intensive Care; Advanced Procedure Center; Advanced Orthopedic & Sports Medicine; Valley View Surgical Center; Don Nobis Progressive Physical Therapy; Las Vegas Radiology; Body Wise, Inc.; Innovative Procedural and Surgical Center; and Anesthesia Associates. Opposition (ECF No. 16), Exhibit 1, pgs. 2-10. As to each of the listed medical providers, the document stated:

The Person(s) Most Knowledgeable at [name of provider] is expected to offer expert testimony regarding this medical provider's evaluation and treatment of the Plaintiff, and to offer expert testimony that the treatment rendered to Plaintiff and/or future treatment recommended to Plaintiff by this medical provider (such treatment including but not being limited to evaluation, testing, diagnosis, procedures, exercise and therapy regimens, follow-up, and/or prescription medication) was and is reasonably medically necessary, and to offer expert testimony that the reasonable medical necessity of such treatment was caused by the incident(s) described in Plaintiff's Complaint.

Id.

         Plaintiff's List of Witnesses and Document Disclosure also listed, by medical provider and Bates Numbers, the medical records and/or billing records relating to Plaintiff's alleged injuries and damages, and stated that the records were provided in an enclosed disk. Id. at pg. 10. It also contained a computation of Plaintiff's special damages for medical expenses, listing the charges for each medical provider. Id. at pgs. 12-13.

         On December 23, 2016, a paralegal for Plaintiff's counsel sent an email to Defendant's attorney noting that the expert disclosure deadline had passed, but requesting that the parties agree to extend it for another thirty days. Motion (ECF No. 14), Exhibit 2, at pg. 2. Defendant's counsel responded on December 24, 2016 that he could not agree to re-open the initial expert disclosure deadline. Id. at pg. 1.

         On January 9, 2017, Plaintiff served her “Initial Designation of Expert Witnesses.” Motion (ECF No. 14), Exhibit 1. This document listed “Expert Treating Physicians” and provided greater specificity regarding some of the physicians' expected testimony than was provided in Plaintiff's prior List of Witnesses. For example, the “Initial Designation of Expert Witnesses” stated with respect to Spinal Rehabilitation Center-Rainbow Office as follows:

Tyler Michaels, D.O. [of Spinal Rehabilitation Center-Rainbow Office] is expected to offer expert testimony at the time of trial regarding his treatment of Plaintiff. In accordance with the commentary to NRCP 16.1(a) and the Nevada Supreme Court's decisions in FCH1 LLC v. Rodriguez, 130 Nev.Adv.Op. 46 (2014), Tyler Michaels, D.O. obtained all of his opinions, as stated herein, within the course and scope of his treatment of Plaintiff. Tyler Michaels, D.O. will provide the following expert opinions at the time of trial:
a. Plaintiff sustained a left knee, right ankle, bilateral wrists, neck, upper back, and low back regions injury as a result of this subject incident;
b. Plaintiff sustained sprain/strain to the thoracic spine as a result of this subject incident;
c. Plaintiff sustained Cervical Sprain/Strain, Thoracic Sprain/ Strain, Lumbar Sprain/Strain, Sacroiliac Sprain/Strain, Lumbago, Muscle Spasm, Pain in Joint, Knee Sprain/Strain, Ankle Sprain/Strain and Wrist Sprain/Strain as a result of the this subject incident;
d. Plaintiff required MRIs in order to evaluate her injuries caused by the subject incident and the costs of those diagnostics are reasonable, customary and directly related to the subject incident;
e. That all of his treatment, referrals, and diagnostic testing was necessary as a result of the injuries caused by the subject incident and the costs were reasonable, customary and directly related to the subject incident; Tyler Michaels, D.O. treatment notes which are provided in lieu of an expert report attached as Exhibit 1 and his CV, his fee schedule and his Trial Testimony History will be supplemented once received.

Id. at pgs. 1-2.

         Plaintiff's “Initial Designation of Expert Witnesses” provided similar specificity regarding the expected testimony of Dr. Jeffrey Muir; Dr. Simon Wilcox of Critical Care Medical Consultants; Dr. Xin Nick Liu of Advanced Orthopedic & Sports Medicine; Don Nobis, P.T.; and Dr. Alain Cooper of Nevada Comprehensive Pain Center. Id. at pgs. 2-6. No additional information was provided for the other medical providers who were listed in Plaintiff's List of Witnesses served on July 13, 2016. Motion (ECF No. 14), Exhibit 1, pgs. 7-9.

         Defendant informed the Court during the February 15th hearing that it disclosed an expert medical witness on or before the December 12, 2016 expert witness disclosure deadline. This expert has reviewed the medical records and other relevant information in forming his or her opinions. It is unclear whether Defendant's medical expert has examined the ...


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