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Reyes v. Rucker

United States District Court, N.D. Indiana, Hammond Division

October 2, 2014

CONNIE REYES and DANIEL V. REYES, Parents of S.R. a minor child, Plaintiffs,
v.
WILLIAM J. RUCKER, DDS, Defendant.

OPINION AND ORDER

PAUL R. CHERRY, Magistrate Judge.

This matter is before the Court on a Motion to Strike Plaintiffs' Addendum to Expert Report [DE 39], filed on September 23, 2014. For the reasons set forth below, the Court grants the motion.

BACKGROUND

Plaintiffs' expert witness disclosure deadline was May 28, 2014. On that date, Plaintiff served the expert report and opinions of Nicholas E. Panomitros, DDS, MA, JD, LLM, which is dated May 28, 2014. The report listed Dr. Panomitros' "compensation" rate as "$400.00 hour." (Def. Br., Exh. A, p. 12). The report did not include a list of other cases in which he had testified as an expert in the past four years. Dr. Panomitros gave an opinion on the care provided to S.R. by Defendant Dr. Rucker, opining that most of the care fell below the applicable standards of care.

Defendant's expert witness disclosure deadline was June 30, 2014. On that date, Defendant served the expert report and opinions of Barry W. Ray, DDS, MAGD, dated June 23, 2014. Dr. Ray opined that Dr. Rucker's care of S.R. met the applicable standard of care and that Dr. Rucker's care did not cause any injury to S.R. Dr. Ray did not list the records of Dr. Pong, a dentist who treated S.R. in 2009, nor did he give any opinions based on Dr. Pong's records. Some time after issuing his report, Dr. Ray reviewed the treatment records of Dr. Pong and a 2009 x-ray of S.R. taken by Dr. Pong.

On August 29, 2014, Plaintiffs deposed Dr. Ray. In his deposition, Dr. Ray opined that, based on the 2009 x-ray from Dr. Pong, "there should have been something done about this tooth a long time ago." (Pl. Resp., Ex., pp. 13-14).

The discovery deadline was August 29, 2014.

On September 5, 2014, counsel for Plaintiffs faxed to counsel for Defendant a copy of the Expert Witness Retention Contract for Plaintiffs' expert Dr. Panomitros, which indicated that his hourly rate for time spent on the case is $400 an hour and that his deposition rate is $700 an hour.

On September 8, 2014, Defendant began the deposition of Dr. Panomitros. The deposition could not be concluded due to Dr. Panomitros' schedule. The date selected to conclude Dr. Panomitros' deposition was September 18, 2014, at 3:30 p.m. in Chicago, Illinois.

On September 10, 2014, Defendant served on Plaintiffs an Amended Expert Report by Dr. Ray, dated September 2, 2014. The only change to the original report was the inclusion of three additional documents reviewed by Dr. Ray: the records of Henry Pong, DDS; x-rays of S.R. from Henry Pong, DDS; and the expert report of Dr. Panomitros. No changes were made to the text of the report.

On September 18, 2014, the day that the completion of Dr. Panomitros' deposition was scheduled to begin at 3:30 p.m., counsel for Plaintiffs faxed at 12:20 p.m. to counsel for Defendant an Addendum to Expert Report ("Addendum") by Dr. Panomitros. Counsel for Defendant, whose law practice is in Fort Wayne, Indiana, was driving to the deposition in Chicago, Illinois, and was unable to read or review the Addendum until arriving at the deposition. The Addendum provides two pages of opinion and lists four documents that were reviewed: records of Henry Pong, DDS; Dr. Ray's original report; Dr. Ray's deposition; and Dr. Ray's September 2, 2014 amended report. Dr. Panomitros' Addendum also lists the cases on which he consulted and, on the last page, lists his "Compensation" as "$400.00 hour for case review. Deposition and trial testimony is $700.00 hour." (Def. Br., Ex. C, p. 2).

The September 18, 2014 continued deposition of Dr. Panomitros was cancelled due to disagreement over the scope of the Addendum that had been given to counsel for Defendant upon her arrival at the deposition location in Chicago, Illinois.

Counsel for Defendant discussed her objections to Dr. Panomitros' Addendum with counsel for Plaintiffs on September 18, 2014, and again by telephone on September 22, 2014. That day, Counsel for Plaintiffs sent counsel for Defendant an email indicating that Plaintiffs would not agree to redact two sentences from Dr. Panomitros' Addendum "for the reason that the Defendant has an opportunity to ask him anything about his opinions in... his upcoming deposition." (Def. Br., Ex. D). Counsel stated that Dr. Panomitros' deposition rate remained at $700 an hour, which counsel for Plaintiffs had first disclosed to counsel for Defendant on September 5, 2014. Counsel also noted that Plaintiffs had not objected to Dr. Ray's untimely Amended Expert Report.

On September 22, 2014, Defendant filed a motion requesting a hearing on this dispute, and on September 23, 2014, counsel for Defendant filed the instant motion after attempting to ...


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