Hardin v. Wal-Mart Stores, Inc., No. 1:2008cv00617 - Document 93 (E.D. Cal. 2010)

Court Description: ORDER ADOPTING 73 FINDINGS AND RECOMMENDATIONS Regarding 55 Defendant's Motion to Prohibit Plaintiff from Eliciting Expert Testimony from Improperly Disclosed Witnesses, signed by Chief Judge Anthony W. Ishii on 9/15/2010. (Jessen, A)
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Hardin v. Wal-Mart Stores, Inc. Doc. 93 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 ZANE HARDIN, 9 10 11 12 13 14 15 ) ) Plaintiff, ) ) v. ) ) ) WAL-MART STORES, INC., and DOES 1- ) 100, inclusive, ) ) ) Defendants. ) ) _____________________________________ ) 1:08-cv-00617 AWI GSA ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Document 73) 16 17 18 On June 9, 2010, Defendant Wal-Mart Stores, Inc. filed its Motion to Prohibit Plaintiff 19 from Eliciting Expert Testimony from Improperly Disclosed Witnesses, or, Alternatively to 20 Compel Plaintiff’s Proper Expert Disclosure and Allow Wal-Mart Forty-Five Days Thereafter to 21 Complete Expert Discovery. On July 2, 2010, Plaintiff Zane Hardin filed his opposition to 22 Defendant’s motion. (Docs. 58-59.) On July 16, 2010, Defendant filed its reply to Plaintiff’s 23 opposition. (Docs. 60-61.) 24 On August 25, 2010, the Magistrate Judge issued Findings and Recommendations that 25 Defendant’s motion be granted in part and denied in part. More specifically, the Magistrate 26 Judge recommended that Plaintiff be prohibited from (1) offering the expert testimony of “other” 27 28 1 Dockets.Justia.com 1 Wal-Mart experts, or experts designated in other unrelated litigation involving this defendant, 2 such as those referenced in Plaintiff’s untimely May 1, 2010, disclosure; (2) offering the expert 3 testimony of Greg Maul1; (3) offering the expert testimony of Susan K. Thompson; (4) offering 4 the expert testimony of William Bielby; and (5) offering the expert testimony of unidentified 5 persons most knowledgeable from Wal-Mart, himself, Tom Young, Eleno Bernal, Don Wallis, 6 Mike Gilliam or Mr. Smoot. Lastly, the Magistrate Judge recommended that Plaintiff be 7 permitted to offer the expert testimony of his treating physicians. The Findings and 8 Recommendations were served on all parties. On September 8, 2010, Plaintiff filed his 9 objections to the Magistrate Judge’s Findings and Recommendations. (Doc.87.) 10 In accordance with the provisions of Title 28 of the United States Code section 636 11 (b)(1)(c), this Court has conducted a de novo review of the case. Plaintiff’s expert disclosure is 12 untimely. Though the delay is minor, Plaintiff did violate the deadline. Putting that aside, 13 Magistrate Judge Austin identified several substantive errors in Plaintiff’s disclosures. Broadly, 14 Plaintiff claims that a number of witnesses are non-retained experts for whom Plaintiff does not 15 need to produce Rule 26 reports. Plaintiff seeks to have William Bielby and other unnamed 16 persons who testified as experts in other cases involving Wal-Mart testify in this case. Plaintiff 17 theorizes that since these individuals have already testified against Wal-Mart in the past, no Rule 18 26 report need be produced. Plaintiff has provided no support for this proposition. In fact, there 19 is no indication that these individuals have cooperated with Plaintiff. Plaintiff appears to be 20 seeking to have them “subpoenaed to appear at trial.” Doc. 87, Plaintiff’s Objections, at 6:14. 21 Plaintiff seeks to present the testimony of Susan Thompson, an expert on calculating 22 employment financial losses. Plaintiff admits that “She has not been provided any written 23 materials about Zane. She was disclosed as a nonretained expert to educate the jury on how job 24 benefit losses are calculated.” Doc. 87, Plaintiff’s Objections, at 9:2-4. Plaintiff appears to argue 25 26 27 28 1 A typographical error appears in the Findings and Recommendations wherein this witness is referred to as Mike Gaul. Cf. Doc. 73 at 6-7 & Doc. 73 at 13. 2 1 that no Rule 26 report is necessary since Ms. Thompson knows nothing about the facts of this 2 case. Under that rationale, Ms. Thompson’s testimony would not be relevant. To the extent that 3 she would opine about Plaintiff’s specific situation, a Rule 26 report is necessary. Plaintiff seeks 4 to have Greg Maul, Tom Young, Eleno Bernal, Don Wallis, Mike Gilliam, Mr. Smoot, and 5 Plaintiff himself testify as experts in Wal-Mart operations. These individuals are all current and 6 former employees of Wal-Mart and may be valid fact witnesses. Plaintiff has provided no 7 showing that these individuals qualify as experts. Having carefully reviewed the entire file, 8 including Plaintiff’s objections, the Court finds that the Findings and Recommendations are 9 supported by the record and proper analysis. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. 12 13 The Findings and Recommendations issued August 25, 2010, are ADOPTED IN FULL; 2. Plaintiff may not offer the expert testimony of “other” Wal-Mart experts, Greg 14 Maul, Susan K. Thompson, William Bielby, unidentified persons most 15 knowledgeable from Wal-Mart, Tom Young, Eleno Bernal, Don Wallis, Mike 16 Gilliam, Mr. Smoot or Plaintiff himself; 17 3. 18 19 Plaintiff shall be permitted to the offer the expert testimony of his treating physicians. IT IS SO ORDERED. 20 21 Dated: 0m8i78 September 15, 2010 CHIEF UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 3