United States District Court, D. Nevada
ORDER RE: MOTION TO STRIKE (ECF NO. 63)
FOLEY, JR., United States Magistrate Judge
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.
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.
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.
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
Order (ECF No. 31), at pg. 3.
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).
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.
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.
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