Kerr v. Hurd et al, No. 3:2007cv00297 - Document 60 (S.D. Ohio 2009)
Court Description: DECISION AND ORDER - Plaintiff's request for relief from the Court's Order of March 19, 2009, is DENIED except that he may present at trial the witnesses whose depositions have been set for the period between now and April 30, 2009, to wit, himself, Dr. Hurd, Dr. Gary Ventolini, Dr. Margaret Dunn, Dr. Lawrence Amesse, Jocelyn Piccone, and Gail Smith. He may also present his wife Marga Kerr provided she presents herself for deposition in Dayton, Ohio, not later than April 30, 2009. Signed by Magistrate Judge Michael R Merz on 4/22/2009. (kopf1, )
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON MD ELTON R. KERR, Plaintiff, : Case No. 3:07-cv-297 -vs- Magistrate Judge Michael R. Merz : MD WILLIAM W. HURD, et al., Defendants. DECISION AND ORDER This case came on for hearing on April 22, 2009 on Plaintiff s Motion for Extension of Time for Plaintiff to submit to a psychological examination (Doc. No. 50) and Plaintiff s Motion for Reconsideration of the Court s denial of Plaintiff s Motion to file his lay witness list late (Doc. No. 51). Plaintiff was represented at the hearing by attorneys John Folkerth, Jr., and Kenneth Heisele; Defendant Hurd was represented by attorney Timothy Lecklider; Defendant Wright State Physicians was represented by Attorney Jonathan Hollingsworth. Procedural History The Complaint was filed in this case on August 10, 2007 (Doc. No. 1). The initial scheduling order in the case had to be amended in light of the substitution of Dr. Kerr s Chapter 7 trustee as the real party in interest. Following that substitution, the Court entered an Amended Scheduling Order (Doc. No. 33), again adopting the dates requested by the parties in their revised 1 Rule 26(f) Report (Doc. No. 32). These included a lay witness identification date of September 30, 2008, and a discovery deadline of April 30, 2009. On March 13, 2009, Plaintiff filed a Motion for Leave to Identify Lay Witnesses and to Extend the Discovery Deadline (Doc. No. 42). On March 19, 2009, the Court denied that Motion (Doc. No. 47) and expressly provided that any motion seeking relief from that Order must be accompanied by 1. A list identifying any witness Plaintiff desires to call at trial with an address and telephone number and an actual synopsis of the facts Plaintiff expects to elicit from that witness; and 2. A showing of cause as to why each of said witnesses was not timely identified. Id. at 4. The instant Motions followed. Plaintiff s Psychological Evaluation Plaintiff has been dilatory in presenting himself for psychological evaluation although he admits his obligation to submit to the examination. Although the Court would be within its discretion to deny the extension and preclude any claim for emotional distress damages, the Court finds that it can accommodate Defendant s need for the examination with Plaintiff s schedule. Accordingly, the Motion to Reschedule is GRANTED insofar as Plaintiff is ordered to present himself for the evaluation in Dayton, Ohio, on May 26, June 2, or June 12, 2009. Dr. Kerr shall elect one of these three dates not later than the commencement of his deposition on April 24, 2009. Plaintiff s Document Production The Court finds that Plaintiff s production of documents to date in response to Defendant s First Request for Production of Documents does not comply with Fed. R. Civ. P. 34. It is 2 accordingly ordered that, prior to the commencement of his deposition on April 24, 2009, Plaintiff shall identify by Bates number which of the documents he has produced is responsive to which of the paragraphs of Defendant s document request. Plaintiff s Motion for Relief from Order On March 13, 2009, Plaintiff sought leave to file his list of lay witnesses almost six months later than the date on which they were due. In denying leave to file late, the Court noted that the purported identification of witnesses is grossly deficient in that it failed to identify witnesses as to location and only identified the subject matter of testimony for seventy-nine of the eighty-one proposed witnesses as Facts within the personal knowledge of the witness establishing the liability of Defendants as alleged in the Amended Complaint. (Order, Doc. No. 47, at 3.) The Court also noted that no good cause for late filing had been shown. Id. The Order was filed March 19, 2009. The instant Motion was filed a month later, ten days before discovery cut-off. The prejudice to Defendant from allowing witness identification at this late date is obvious. Plaintiff responds that he would not object to allowing Defendant to depose these witnesses after the discovery cut-off. As good cause for the delay, Plaintiff s counsel asserts he mistakenly believed that the witness list had been filed. Counsel does not say how he came to have this mistaken belief and why it continued for months. Because of the electronic docket in this Court, the actual state of the docket what has been filed and what has not been filed is available to counsel twenty-four hours a day. Anyone who looked at the docket any time between September 30, 2008, and March 13, 2009, could readily have determined that Plaintiff s witness list had not been filed. This was the period of time during which, according to their own Rule 26(f) Report and the Amended Scheduling Order, the parties should have been conducting discovery (See Doc. Nos. 32, 33). Failing to look 3 at the docket for six months is not good cause. Of course, as the Court noted in its prior Order, the lay witness list actually tendered in March, 2009, did not comply with this Court s General Order No. 1 which requires a list of proposed trial witnesses and a summary of their proposed testimony. Instead, Plaintiff filed the extremely conclusory list of eight-one mentioned above. As explanation for this, Mr. Folkerth believed that when Mr. Heisele told him no witness list had been filed, he mistakenly believed that he had failed to make a Fed. R. Civ. P. 26(a)(1) disclosure and then provided that list to Mr. Heisele to file. Apparently Mr. Folkerth was unable to tell from his file that he had in fact disclosed the eighty-one possible witnesses in his 26(a)(1) disclosure, but why he would have thought that list would satisfy the trial lay witness list requirement he does not tell the Court. The consequence of these cumulative mistaken beliefs and failure to monitor the docket as that Plaintiff has tendered a lay witness list of twenty witnesses ten days before the discovery cutoff. Ten of those witnesses are medical doctors; doctors depositions are notoriously difficult to schedule. Four of those witnesses are beyond the subpoena range of the Court and Plaintiff could not commit to making them available for deposition in Dayton. In fact, Plaintiff has done nothing to make these witnesses available for deposition, apparently believing it is enough at this late date to identify them and not object to more time for discovery. The Court concludes Plaintiff has not shown good cause for the delay in identifying witnesses. Plaintiff does not suggest that any of the names of witnesses now disclosed was unknown to Plaintiff at any time in the past; none of them are shown to be recently discovered. The only cause offered is counsel s neglect in managing this case and that neglect is not excusable, particularly when counsel waited a month after the prior striking of the lay witness list to tender a list which actually conforms to General Order No. 1. The Supreme Court held in Pioneer Inv. Services v. Brunswick Associates, 507 U.S. 380 (1993), that inadvertence, ignorance of the rules, 4 or mistakes construing the rules do not usually constitute 'excusable' neglect; failure to notice for almost six months that a witness list has not been filed, attempting to correct that with a list which does not comply, and then failure to correct that mistake for a month, in the face of explicit Court notice of what it would take to correct the mistake, is not excusable neglect. It does not suffice for counsel to say that it is his fault and his client should not be penalized. Clients continue to be responsible for their attorneys' neglect: "... the proper focus is upon whether the neglect of [the parties] and their counsel was excusable." Id. (emphasis sic). Nor is it a sufficient cure for prejudice to Defendant to allow more time for discovery. This controversy was initially filed in the Montgomery County Common Pleas Court in 2004 and litigated there extensively for more than two years before Plaintiff took advantage of Ohio Civ. P. 41(A) to dismiss without prejudice in October, 2006. This case was not filed until ten months later. By the time this case reaches trial on the present schedule, the controversy will have been pending between the parties for more than five years. Very little discovery has occurred since re-filing, although apparently some limited discovery occurred in the Common Pleas case1. Since Plaintiff has not shown good cause for his delay in identifying lay witnesses, his request for relief from the Court s Order of March 19, 2009, is DENIED except that he may present at trial the witnesses whose depositions have been set for the period between now and April 30, 2009, to wit, himself, Dr. Hurd, Dr. Gary Ventolini, Dr. Margaret Dunn, Dr. Lawrence Amesse, Jocelyn Piccone, and Gail Smith. He may also present his wife Marga Kerr provided she presents herself for deposition in Dayton, Ohio, not later than April 30, 2009. April 22, 2009. s/ Michael R. Merz United States Magistrate Judge 1 The docket in the Common Pleas case is attached hereto as an exhibit. 5
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