United States District Court, N.D. Indiana, Hammond Division
MICHAEL R. EVANS and SHERI EVANS, Plaintiffs,
DART TRANSIT COMPANY and JACK R. WEBSTER, Defendants.
OPINION AND ORDER
PAUL R. CHERRY, Magistrate Judge.
This matter is before the Court on Plaintiffs' Motion to Bar Expert Testimony [DE 74], filed by Plaintiffs Michael R. Evans and Sheri Evans on February 28, 2015; Defendants' Motion for Modification of the Scheduling Order [DE 81], filed by Defendants Dart Transit Company and Jack R. Webster on March 18, 2015; and Defendants' Motion for Leave to Re-Depose Plaintiff, Michael Evans [DE 85], filed by Defendants on April 13, 2015. All three motions are ripe for ruling.
On May 7, 2012, Plaintiffs Michael R. Evans and Sheri Evans filed a Complaint against Defendants Dart Transit Company and Jack R. Webster arising out of an incident that occurred on March 21, 2012, between Mr. Evans, who was driving a motorcycle, and Mr. Webster, who was driving a tractor-trailer displayed with Defendant Dart Transit Company's logo. On July 12, 2012, the Court issued a scheduling order, which included a discovery deadline of May 17, 2013, a deadline for Plaintiffs' expert witness disclosures and reports of February 15, 2013, and a deadline for Defendants' expert witness disclosures and reports of March 15, 2013.
On February 28, 2013, the Court extended the deadlines for Plaintiffs' expert disclosures and reports to July 31, 2013, and Defendants' expert witness disclosures and reports to August 30, 2013. On July 12, 2013, the Court granted Plaintiffs' request for an extension to disclose expert reports to October 1, 2013. Defendants' deadline was not extended. Defendants did not serve Plaintiffs with any Rule 26(a)(2) expert disclosures by their August 30, 2013 deadline. On October 1, 2013, Plaintiffs disclosed their retained experts and produced their reports. On November 13, 2013, the Court extended the discovery deadline to December 31, 2013, on Defendants' motion.
On December 30, 2013, the day before the close of discovery, Defendants took the Plaintiffs' depositions. At his deposition, Mr. Evans testified that his injuries were not resolved and that they were still producing pain, especially in his neck. Defendants did not request the deposition of any treating physician, did not depose Plaintiffs' experts, and did not seek medical records through subpoena or the authorizations executed by Plaintiffs. In contrast, on twelve occasions during this litigation, Plaintiffs provided Defendants with supplements regarding ongoing medical treatment pursuant to Federal Rule of Civil Procedure 26(e).
In January 2014, on referral from Dr. Thompkins, Mr. Evans' neurosurgeon at Lakeshore Bone & Joint Institute, Mr. Evans began treatment with Dr. Cristea, a neurologist at the Neurological Institute and Specialty Centers; that treatment continues today.
In November 2014, Judge Springmann ordered a trial setting of June 9, 2015, with the final pretrial conference set for May 22, 2015.
On January 20, 2015, Plaintiffs took the Rule 30(b)(6) deposition of the Dart Transit representative. The delay in taking the deposition was caused by Defendants.
On February 5, 2015, and February 26, 2015, Plaintiffs served Rule 26(e) supplements.
On February 28, 2015, Plaintiffs preemptively filed the instant Motion to Bar Expert Testimony under Federal Rule of Civil Procedure 37(c). Plaintiffs ask the Court to bar Defendants from presenting any expert testimony, whether from retained experts or otherwise, at the trial in this matter because Defendants failed to make expert witness disclosures by their August 30, 2013 deadline.
On March 3, 2015, new counsel entered their appearances for Defendants, and on March 4, 2015, Defendants' former attorney withdrew his appearance.
On March 11, 2015, Plaintiffs again supplemented their discovery disclosures, informing Defendants of a March 9, 2015 diagnosis of Complex Regional Pain Syndrome (CRPS)/Reflex Sympathetic Dystrophy Syndrome (RSDS). Plaintiffs represent that, after several rounds of testing and conservative treatment, on March 9, 2015, Dr. Teodori, also at the Neurological Institute, formally made the diagnosis. In correspondence dated March 12, 2015, Plaintiffs' counsel summarized the conventional treatment for CRPS, including recent studies that support spinal cord stimulation as a preferred treatment modality. The correspondence indicates that spinal cord stimulation involves a major surgical procedure costing approximately $80, 000, which must be repeated every three to five years. Counsel also estimates that Mr. Evans' pain medication costs approximately $200 per month and that he has approximately four to five medical management visits per year.
On March 18, 2015, Defendants filed the instant Motion for Modification of the Scheduling Order. Defendants ask the Court for the opportunity to disclose and use expert witnesses at trial, seeking leave to disclose a medical expert to "counter the changing conditions and diagnoses of Mr. Evans" and a motorcycle operations expert to address liability. In ...