Page 1 of 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA AMIE AUSTIN ) ) NO. 1:16-cv-00338 Plaintiff ) ) v. ) Collier/Steger ) JOSE SALINAS and ) TRANSPORTATION SERVICES, INC. ) JURY DEMAND ) Defendants ) RESPONSE TO DEFENDANT’S MOTION FOR PERMISSION TO TAKE TELEPHONIC DEPOSITION OF DR. TIMOTHY STRAIT Comes now, Plaintiff, by and through counsel, pursuant to Federal Rules of Civil Procedure 1, 16, 26, and 37, Local Rules 7.1 and 37.2, Paragraphs 9 and 12 of Judge Steger’s Judicial Preferences, and the Scheduling Order, Second Amended Scheduling Order, and Third Amended Scheduling Order [Docs. 21, 33, 50] and respectfully moves this Court to deny Defendant’s Motion for Permission to Take Telephonic Deposition of Dr. Timothy Strait for use in evidence at trial because Defendant never listed Dr. Strait as an expert witness, nor have they provided an expert report or disclosure; further Plaintiff moves this Court to exclude this testimony in any form. Federal Rule of Civil Procedure 37(c)(1) states, “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." See Jelsma v. Knox Cnty., 2017 U.S. Dist. LEXIS 91128, *18-19. Moreover, “the rule requires absolute compliance with Rule 26(a); that is Case 1:16-cv-00338-CHS Document 63 Filed 11/28/18 Page 1 of 4 PageID #: 330 Page 2 of 4 it ‘mandates that a trial court punish a party for discovery violations. . .’ unless the error was harmless or substantially justified. Id. Exclusion of expert testimony is ‘the standard sanction’ for such a violation. Id. (citing Samos Imex Corp. v. Nextel Communications, Inc., 194 F.3d 301, 305 (1st Cir. 1999). The party to be sanctioned bears the burden of proving the omission was justifiable or harmless. Id. In Jelsma v. Knox Cnty., the scheduling order required plaintiffs to make their expert disclosures prior to April 15, 2016. Id. at 18. “They did not disclose any experts by the deadline, nor did they request an extension to do so.” Id. The plaintiffs argued that the identity of a Dr. Brady was disclosed to the defendants prior to the close of the expert time-frame and that more than the failure was harmless as there was still a year before trial. Id. at 19. However, the Court held that logic insufficient and excluded the testimony. Id. at. 20. In the case at bar, there have been three Scheduling Orders. The first dictated that expert disclosures shall be made by Defendant(s) on or before Tuesday, November 14, 2017, the Second Amended Scheduling Order laid out July 27, 2018 as the new date for Defendant, and finally the Third Amended Scheduling Order set forth October 5, 2018, as the new deadline for expert disclosures. (See Docs. 21, 33, 50). These disclosures should be accompanied by any required written report or statement as required by Rule 26. (Sch. Ord. ¶ 5(e)). The irony of this motion is not lost on Plaintiff, as Defendant was doggedly determined to hold Plaintiff to an exacting standard for her expert reports. The very rules and case law cited by the Defendant in their motions to exclude Plaintiff’s expert testimony are even more applicable to Dr. Strait, as no disclosure and report has been made, and no extension of time has been filed despite three extended time frames. Case 1:16-cv-00338-CHS Document 63 Filed 11/28/18 Page 2 of 4 PageID #: 331 Page 3 of 4 The Defendant will no doubt argue that Plaintiff knew of Dr. Strait’s existence and therefore the omission was harmless; however, that is the same argument that failed in Jelsma. Furthermore, if this expert is allowed, the schedule of the trial may be imperiled as Plaintiff might also need to consult an expert neurosurgeon. Most importantly, it is farcical to see the Defendant advocate that this testimony survive exclusion when that was most vigorous and unrelenting argument made by Defendant against Plaintiff - despite Plaintiff having made disclosures and reports. The Defendant, thoroughly versed in these Rules, failed to comply with Rule 26 and with the Scheduling Order laid out by the Court. Dr. Strait was never listed as an expert witness. Conclusion Accordingly, Plaintiff moves this Court to deny Defendant’s motion and to exclude the testimony of Dr. Strait for complete lack of compliance. BERKE, BERKE & BERKE By: /s/ Erin V. Wallin Ronald J. Berke BPR#1741 Erin V. Wallin BPR#36240 Attorneys for Plaintiff 420 Frazier Avenue Post Office Box 4747 Chattanooga, Tennessee 37405 (423) 266-5171 - Telephone (423) 265-5307 - Facsimile ronnie@berkeattys.com Case 1:16-cv-00338-CHS Document 63 Filed 11/28/18 Page 3 of 4 PageID #: 332 Page 4 of 4 CERTIFICATE OF SERVICE I do hereby certify that a copy of the foregoing has been filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. Parties may access this filing through the Court’s electronic filing system. This 28th day of November, 2018. /s/ Erin V. Wallin Case 1:16-cv-00338-CHS Document 63 Filed 11/28/18 Page 4 of 4 PageID #: 333
