United States District Court, D. Nevada
ORDER (MOTIONS - ECF NOS. 128; 131; 159; 163;
A. LEEN UNITED STATES MAGISTRATE JUDGE
the court are the following motions and related documents
which the court has reviewed and considered:
Defendant Desert Palace's Motion to Amend the Scheduling
Order (ECF No. 128); Response (ECF No. 141); and Errata (ECF
motion seeks leave to amend the scheduling order to
substitute one rebuttal expert for another after the
scheduling order deadline because the first rebuttal expert
was unable to provide a list of his prior testimony and trial
list for the past four years. The proposed substitute expert
has adopted the same opinions but is able to provide the
information required by Rule 26(a)(2)(B). Plaintiffs oppose
the motion as untimely and because the defendants have
repeatedly been uncooperative with respect to providing the
job file and other information plaintiff.
court finds defendants' failure to timely disclose the
information required by Rule 26(a)(2)(B) is not substantially
justified. The court will grant the motion and allow the
substitution of experts, but sanction defendants by requiring
defendants to pay the expert's deposition preparation and
attendance fees and plaintiffs' attorneys' fees and
costs for taking the deposition.
Defendant Desert Palace's Motion to Substitute Defense
Expert, Michael Brant-Zawadzki, M.D. (ECF No. 131); Response
(ECF No. 141); Errata (ECF No. 145) and Reply (ECF No. 146).
was initially filed as one motion with ECF No. 128.
Defendants seek leave to substitute one neuroradiologist
rebuttal expert Dr. King, for neuroradiologist
Brant-Zawdadski for the reasons stated above. The court will
grant the motion but limit Dr. King's testimony and
opinions to those already disclosed by Dr. Brant-Zawdowski,
and sanction defendants for the late disclosure as set forth
in the prior paragraph.
Motion for Emergency Protective Order (ECF No. 159); Response
(ECF No. 166); and Reply (ECF No. 169).
sought an emergency protective order precluding
plaintiffs' counsel from asking their Rule 30(b)(6)
designees questions at their depositions on topics the court
had previously excluded at a hearing held on November 28,
2018. Additionally, the motion asked for emergency relief
because one of its designees was unavailable on the date
scheduled for her deposition. Plaintiffs oppose the motion.
Defendants' motion is denied. Defendants have repeatedly
failed to produce witnesses scheduled for deposition and
requested that depositions be scheduled at the 11th hour. To
the extent defendants believe questions were asked at a Rule
30(b)(6) deposition on topics the court did not allow, Rule
30(c) and (d) remedies apply.
Plaintiffs' Motion to Preclude Defendants from Offering
or Relying Upon any Expert Testimony and/or Witnesses Not
Disclosed Pursuant to Fed.R.Civ.P. 26(a) (ECF No. 163);
Response (ECF No. 168); and Reply (ECF No. 171).
in this case closed October 31, 2018 after multiple
extensions. However, the court allowed plaintiffs to complete
depositions of multiple individuals identified in discovery
responses and status reports. The deadline for disclosing
initial experts closed August 14, 2017. Defendants served
discovery responses December 11, 2018 and January 4, 2019.
Plaintiffs seek to preclude defendants from offering opinion
testimony of Dr. Donald Reisch, an emergency room physician,
and/or Ronald Tucker, an EMT, that Mr. McKnight's claimed
injuries were caused by a syncopal episode and/or fainting.
Defendants oppose the motion arguing both witnesses were
deposed by defendants long before the close of discovery in
September 2017 and plaintiffs' counsel had the
opportunity to cross-examine the witnesses about their
percipient observations and opinions. Neither is a retained
expert. The discovery disclosures served in December 2018 and
January 2019 were the result of orders compelling the
defendants to supplement many discovery responses the court
found deficient. Plaintiffs' motion is therefore denied.
Plaintiffs' Motion for Sanctions Pursuant to Fed.R.Civ.P.
37(c)(1) (ECF No. 164); Response (ECF No. 167); and Reply
(ECF No. 170).
seek to preclude defendants from calling witnesses and
introducing documents not disclosed before the close of
discovery in a supplemental Rule 26(f) disclosure served
January 9, 2019. The disclosure identified 20 witnesses not
previously disclosed whom defendants may call at trial, and
26 additional “placeholder” witnesses with
descriptions such as “treating nurses”,
“treating physicians”, and custodians of records
for various hospitals and other health care providers. In
addition, defendants served approximately 200 additional
documents. Defendants oppose the motion pointing out that
plaintiffs requested and received leave to depose many of the
individuals now disclosed as witnesses. Additionally, the
supplemental disclosures were made to comply with the
motion is granted with respect to the unidentified
“placeholder” witnesses, and witnesses plaintiffs
have not deposed, except for those witnesses not yet deposed
that the court has granted plaintiff the opportunity to
depose. The motion is also granted with respect to documents
supporting defendants' defenses disclosed after the close
of discovery. With respect to these witnesses and documents,
defendants have not shown the late disclosures were
substantially justified or ...