International Space Station's "Good Morning" Wakeup to Western United States. Image Courtesy of NASA.
The Federal Court in Nevada emphasized that the plaintiff in the case of Cohan v. Provident Life & Accident Ins. Co., No. 2:13-cv-00975-LDG(CWH), 2015 WL 5458682 (D. Nev. Signed September 16, 2015), is a medical doctor. The District Judge emphasized this fact to in turn emphasize the Magistrate Judge's conclusion in the case that the plaintiff was intimately involved in discovery, presumably including the discovery dispute at issue in this decision.
The nature of the plaintiff's occupation ultimately had no effect whatsoever on the outcome of the defendant's motion to disqualify a late-filed plaintiff's expert witness.
Here is how that discovery controversy came about. Think about the events involved during these timeframes to "see" what the parties, the Magistrate Judge and the District Judge, and the other lawyers in the case had to think about at the time.
The plaintiff changed treating physicians a little less than one month before the parties were due to designate experts under a Court Order.
Plaintiff's attorney became aware of the change a little later, some 3 weeks before the deadline.
The lawyer first arranged a meeting with the new treating physician-expert nearly 4 weeks after the deadline passed.
The new treating physician-expert was still not designated as of the time that the lawyer met with him. At their meeting, the expert told the lawyer that he, the treating physician-expert, was not yet in a position to give an opinion when or whether the plaintiff would be able to work. Cohan v. Provident Life & Accident Ins. Co., No. 2:13-cv-00975-LDG(CWH), 2015 WL 5458682, *1 (D. Nev. Signed September 16, 2015).
By this time, seven or eight weeks had passed, depending on which starting point is used, whether the starting point is the date the new expert was retained or the date when the attorney found out that the new expert was retained. The next thing that happened was that the plaintiff's attorney and the defendant's attorney agreed to request an extension of the deadlines for discovery and for the filing of dispositive motions. According to the District Judge who later reviewed the record, the lawyers acknowledged in their stipulation that the deadlines for designating experts had already passed and that their stipulation would not extend the deadlines for designating experts.
Nearly a month more passed after the stipulation was filed jointly requesting that the parties' deadlines for discovery and for filing dispositive motions be extended. Then, the plaintiff's attorney filed a "Supplemental Disclosure of Expert Witnesses, designating [the new treating physician] as an expert …." Cohan v. Provident Life & Accident Ins. Co., No. 2:13-cv-00975-LDG(CWH), 2015 WL 5458682, *1 (D. Nev. Signed September 16, 2015).
The defendant filed a motion to strike the supplemental disclosure. The Magistrate Judge held a hearing on the motion. The Magistrate Judge entered an order that the motion be granted, and the plaintiff objected. On review by the District Judge of the Magistrate Judge's order, the plaintiff argued on the basis of two unpublished decisions, one authored by the same Magistrate Judge in a different case, and one decided by a Federal Court in California. As the District Judge viewed these two decisions, neither one stood for the propositions for which the plaintiff submitted them. Cohan v. Provident Life & Accident Ins. Co., No. 2:13-cv-00975-LDG(CWH), 2015 WL 5458682, *1 (D. Nev. Signed September 16, 2015).
The District Judge relied instead on a decision of the Ninth Circuit Court of Appeals and denied the plaintiff's objection to the Magistrate Judge's order that the admittedly late-designated expert should be stricken.
Please Read The Disclaimer. ©2015 by Dennis J. Wall, author of Litigation and Prevention of Insurer Bad Faith (3d ed. Thomson Reuters West in 2 Volumes, with 2015 Supplements), including Sections 8:17 and 12;18 addressing Expert Witness issues in third-party and first-party insurance cases, respectively. All rights reserved.