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Dixon v. Legacy Transportation Systems, LLC

United States District Court, D. Nevada

September 11, 2017

SARAH DIXON, Plaintiff,

          ORDER (MOT STRIKE - ECF NO. 109)


         Before the court is Defendants'/Third-Party Plaintiffs' Motion to Strike Plaintiff's Treating Providers or, Alternatively, to Preclude Plaintiff from Offering or Relying Upon any Expert Testimony from Any of Her Treating Providers in Support of any Motion, at any Hearing, or at Trial, and for Fees and Costs (ECF No. 109). The court has reviewed the motion, Plaintiff's Opposition (ECF No. 113), and Defendants//Third-Party Plaintiffs' Reply (ECF No. 123). The court also heard oral argument from counsel at a hearing conducted September 5, 2017. Eric Dobberstein appeared on behalf of plaintiff, Benjamin Carman appeared on behalf of defendant Ryan Richards, and Steven Jaffe and Jason Wigg appeared for the remaining defendants.


         This case involves an August 13, 2013 multi-vehicle collision on I-15 south of Las Vegas between Jean and Primm, Nevada. Plaintiff Sarah Dixon (“Dixon”) was a passenger in a 2009 Mitsubishi being driven by her then-boyfriend, defendant Ryan Richards (“Richards”). Both Dixon and Richards were in the United States Marine Corps at the time and returning to Camp Pendleton after a trip to Las Vegas. Defendant Leoncio Angeles (“Angeles”) was driving a tractor trailer leased from defendant Legacy Transportation Systems, LLC (“Legacy”). The Mitsubishi and tractor trailer collided. The parties dispute who was at fault for the accident. Plaintiff claims that Angeles suddenly pulled his tractor trailer into the emergency lane blocking the Mitsubishi being driven by Richards as Richards was in the process of trying to merge back into freeway traffic. Plaintiff clams Richards was forced out of the emergency lane to avoid hitting the tractor trailer, lost control, and swerved onto the freeway striking two vehicles before ending up stopped in the middle traffic lane. Plaintiff claims Angeles was cited and pled guilty to making an unsafe lane change and is at fault for the accident. Legacy claims that Richards was at fault for the accident because he was highly intoxicated, and driving recklessly at a high rate of speed on the shoulder of the road. What is not disputed is that Dixon was airlifted from the accident to UMC where she was treated for life-threatening injuries.

         The Complaint (ECF No. 1) in this case was filed July 17, 2015. The parties requested and received special scheduling review when the court approved a joint proposed Discovery Plan and Scheduling Order (ECF No. 23) on October 21, 2015. The initial discovery plan and scheduling order established an April 18, 2016 deadline for disclosure of experts, and a June 13, 2016 deadline for completing discovery. The parties requested and received two extensions of the discovery plan and scheduling order deadlines extending the deadline for disclosure of experts until May 31, 2016, and later to October 21, 2016. A third stipulation to extend the deadlines was filed by the parties on December 19, 2016 (ECF No. 39). At a hearing held on January 10, 2017, on their third request for extension, the court was dissatisfied with the parties' discovery progress and required the parties to schedule all remaining discovery and inform the court of what specific discovery was still needed to be completed as well as proposed schedule for completing that discovery. See Minutes of Proceedings (ECF No. 49). The court was also skeptical about defendants' claims they should receive another extension of the expert disclosure deadline because they had been unable to retain a trucking standard of care expert because their own client, Angeles, had not yet been deposed. The parties submitted a stipulated discovery plan and proposed order which the court approved extending the deadline for defendant to disclose a trucking standard of care expert until February 17, 2017. However, all other initial expert disclosures were closed.

         This litigation has become increasingly contentious, and the court has decided many, many discovery disputes. It is apparent that there have been communication breakdowns among counsel that have contributed to counsel imputing bad faith and ill motives to one another that have resulted in an inordinate amount of motion practice on matters counsel would ordinarily work out among themselves without judicial intervention.


         In the current motion, defendants seek to strike all of plaintiff's treating providers from offering any testimony, or in the alternative, to preclude plaintiff from offering or relying upon any expert testimony from any of her treating providers in support of any motion, at any hearing, or at trial. Defendants also ask for attorney's fees and costs for the necessity of filing this motion. Defense counsel states defendants initiated the meet-and-confer process on June 7, 2017. The following morning on June 8, 2017 at 4:43 a.m., defense counsel communicated with plaintiff's counsel indicating that if plaintiff's counsel did not agree by 1 p.m. that day that plaintiff would not call any of her treating physicians as witnesses or rely on their expert testimony, a motion to strike would be filed. Plaintiff's counsel responded at 12:20 p.m. on June 8, 2017, suggesting that the parties discuss the matter in Salt Lake City, apparently at a deposition the parties were scheduled to take in this case. However, on June 8, 2017, plaintiff filed a motion for summary judgment on the medical specials. As a result, defendants filed this motion.

         Plaintiff filed and served initial disclosures on November 30, 2015, providing a lengthy list of treating providers. She served eight supplemental disclosures between January 29, 2016, and March 22, 2017. However, with respect to the description of her treating provider testimony, the disclosures were substantially identical. On February 18, 2016, plaintiff served Answers to Interrogatories. Interrogatory no. 10, asked for a list of each and every expert plaintiff reserved the right to call at the time of trial as well as the opinions of each of the providers, documents reviewed, and any report prepared. Plaintiff objected to this interrogatory, but copied and pasted her Rule 26(a)(1) disclosures. Plaintiff has never disclosed an expert report for any of her treating providers, identified the subject matter of their testimony as required by Rule 26(a)(2)(C) or provided a summary of their facts and opinions. The court should therefore strike all of plaintiff's treating providers as witnesses and disallow them from testifying. Discovery has now effectively closed except for a few court-approved depositions that required unexpected rescheduling.

         Defendants claim it is impossible for them to prepare for treating provider testimony, and reopening discovery would result in additional motions, increased expense, and delay. The court should therefore exclude all of plaintiff's treating providers from testifying even as percipient witnesses because it would be grossly unfair to the defendants and undermine the practical effect of Rule 37(c)(1) sanctions.

         Plaintiff opposes the motion arguing defendants have filed a number of “hypertechnical” motions based on hyperbole and exaggeration. Plaintiff also complains that the defendants have engaged in a pattern of constant threats and requests for sanctions and attorney's fees which are opposite of the professional tone attorneys should expect. Plaintiff acknowledges that she did not update her responses to Interrogatory No. 10 after the deadline for expert disclosures to indicate that her various physicians, nurses and physical therapists would not be called as expert witnesses. She acknowledges and regrets this error. However, plaintiff retained Dr. Kathleen Smith to be her medical expert witness in her case in chief. Dr. Smith has reviewed Sarah Dixon's (“Dixon”) complete medical records and provided a 70-page report and supplemental report. Plaintiff intends to rely on Dr. Smith to provide expert testimony, and served a timely expert report for her opinions.

         Plaintiff has consistently noted in her Rule 26(a)(1) disclosures that she intended to call her various treating physicians, nurses and physical therapists as well as the various custodians of record for her medical providers to provide testimony regarding the accuracy of the medical records and bills produced. To date defense counsel has declined to stipulate that the medical records produced in discovery are authentic and genuine. As a result, plaintiff is faced with having to call 45-50 custodians of record for her providers.

         Plaintiff also argues that Defendant retained Dr. Mary Ann Shannon as a medical expert witness. Dr. Shannon has reviewed Dixon's complete medical records and billings and prepared three reports. The medical records provided by plaintiff as well as Dr. Shannon's reports indicate that defendants are well aware of all of the injuries plaintiff sustained, the billings for each of her medical providers including UMC, Desert Canyon Rehab Hospital, HealthSouth, and Camp Pendleton Medical Hospital. Plaintiff claims that she will call her treating physicians as lay witnesses rather than expert witnesses who will only testify as to what they learned during the course and scope of treating the plaintiff. Because plaintiff's treating physicians are not expert witnesses, an expert report is not required unless the treating physician seeks to testify outside the scope of the treatment rendered. Plaintiff does not intend to call any treating providers to testify outside of the opinions reached during the course of treatment. Plaintiff's counsel has not provided any of the treating providers with any information outside of their treatment. She is only seeking testimony as to the treatment she received, the causal relation of that treatment to the injuries she suffered in the collision, and the reasonableness of that treatment and costs. The court should therefore deny the motion.

         Defendants reply that plaintiff now makes the unusual and stunning announcement that all of her treating providers would offer expert opinions despite her Rule 26(a) statements. Her 26(a) statements indicated that her treating providers would provide testimony regarding “the causal relationship to the accident and the reasonableness of treatment.” This is expert testimony. Plaintiff must prove legal causation, i.e., (1) that her medical expenses were incurred as a result of the accident; and (2) that he expenses were actually and proximately caused by an act or omission; and (3) the expenses are reasonable in amount in the local community. It is simply not credible to believe that the plaintiff does not intend to rely upon any expert opinions or testimony from her treating providers. Plaintiff's opposition consists of a “conjured up strategy” to avoid the mandatory Rule 37(c)(1) sanctions. The court should therefore prevent plaintiff from calling any of her treating providers as witnesses in this case.

         I. Legal Standards

         A. Expert ...

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