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McSwain v. United States

United States District Court, D. Nevada

September 11, 2017

PAMELA MCSWAIN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER RE: MOTION TO STRIKE (ECF NO. 63)

          GEORGE FOLEY, JR., United States Magistrate Judge

         This matter is before the Court on Defendant's Motion to Strike Plaintiff's Supplemental Expert Witness Report or, in the Alternative, Reopen Discovery (ECF No. 63), filed on July 14, 2017. Plaintiff filed her Opposition (ECF No. 67) on July 25, 2017 and Defendant filed its Reply (ECF No. 68) on August 1, 2017. The Court conducted a hearing in this matter on August 10, 2017, at which time it ordered Defendant to supplement its motion by filing with the Court the transcript of the deposition of Raymond Fasciano, II, and the original report of Plaintiff's expert witness, Kerry Tritschler.

         BACKGROUND

         Plaintiff alleges that on September 29, 2014 she was in line to board a flight at McCarran International Airport in Las Vegas, Nevada with her “small emotional support animal (‘ESA'), a dog named ‘Chief.'” Complaint (ECF No. 1), at ¶ 10. While attempting to follow the directions of TSA officers as to where she should go to, Plaintiff observed a TSA security dog that was on its hind legs, pulling on the leash maintained by its handler, and barking in a threatening manner. Plaintiff reached down to pick-up her dog. As she stood up, she was attacked from behind by the TSA dog which knocked her and her dog to the ground. Plaintiff and her dog were both injured. ¶¶ 12-14.

         On March 4, 2016, the Court granted an extension of the scheduling order which provided that expert witness disclosures were due on July 22, 2016 and rebuttal expert witness disclosures were due on August 22, 2016. The discovery cutoff date was extended to September 20, 2016. Order on Stipulation (ECF No. 16). On July 21, 2016, one day before the expert witness disclosure deadline, Plaintiff filed a motion to compel discovery responses and stay the discovery period. Plaintiff argued that she was not able to disclose an expert witness on liability until she obtained written discovery responses from Defendant.

         On July 22, 2016, Defendant served its initial expert witness disclosures in compliance with the scheduling order. Defendant provided a report by its liability expert, Kenneth Wallentine, who stated:

“Vadar's [the TSA security dog] behavior that can be seen on the surveillance video does not show threat gestures. Nor does TSA PSC Handler Fasciano report observing any apparent threat gestures by Vadar. Fasciano attempted to block Vadar's view of the other dog and Fasciano spoke to Vadar to calm him. Such a response was consistent with the actions of a reasonable dog handler.” Id. at pg. 3. Mr. Wallentine further states that the type of dog harness worn by the dog “is a very commonly used working dog harness, adopted by hundreds of law enforcement agencies in the United States. Although it is conceivable that a dog could slip out of this type of harness, it is physically very difficult, requiring that the dog suddenly back out of the harness, slipping head, ears, chest and legs backward. Though I have seen dogs in such harnesses back quickly, I have never seen a dog successfully slip out of the harness. Prior to learning of this incident, I was not aware of any dog that ever slipped out of this type of harness.” Id.

Order (ECF No. 31), at pg. 3.

         Although Plaintiff's motion to stay discovery and, in effect, grant her additional time to obtain a liability expert's opinion was untimely, the Court granted it in the interest of justice and gave Plaintiff leave to disclose an expert witness ten days after Defendant produced documents pursuant to the Court's order. Id. at pg. 13. On December 16, 2016, the Court ordered that Plaintiff serve her initial expert witness disclosure on January 25, 2017. The Court also extended the discovery cutoff date to April 25, 2017. Order (ECF No. 44).

         Plaintiff thereafter served a January 25, 2017 report by her liability expert witness, Kerry Tritschler. See Notice of Filing Plaintiff's Expert Report of Kerry Tritschler (ECF No. 71) (“Tritschler Report”). Mr. Tritschler's report identified the documents and items he reviewed in preparing his report which included surveillance video of the incident and Mr. Wallentine's expert report. Tritschler's Report, at pg. 2. Mr. Tritschler stated that as of January 16, 2017, he did not “have a copy of Vadar's training records to enable me to see if Vadar had an aggressive posture or attitude toward other animals.

         I understand these items have been requested from the government but not yet produced. These are key documents that have direct bearing on the negligence that occurred in this case.” Id. at pg. 4. He further stated: “Socialization for all working dogs should be done to ensure that they're not aggressive towards people, and that animals or people do not distract the working/explosive dog from detecting explosives it has been trained for. Any canine that searches cannot concentrate on the orders (sic) it is detecting if it is fixated on people or other animals.” Id. Based on the information that had been provided to him, Mr.

         Tritschler stated as follows:

It is my opinion that . . . Ray Fascino (sic) was negligent by not controlling his canine partner Vadar from running after Pamela McSwain and her companion dog Chief knocking them to the ground. I concur with Mr. Wallentine that it is very difficult for a canine to slip out of the type of harness which was applied to Vadar unless it was applied too loosely which clearly appears to be the case here. Common sense dictates that Vadar would not have slipped out of the harness but for the negligence of having it fastened too loosely. I also believe that reviewing the ...

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