Pyzynski v. Thomas & Betts Corp.

MOTION to Strike Defendant's Expert Witness

M.D. Fla.September 21, 2017

1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION RICKY PYZYNSKI, Plaintiff, Case No.: 6:16-cv-1998-Orl-40DCI vs. THOMAS & BETTS CORP., Defendant. _________________________ PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S EXPERT WITNESS EDWIN WARD COMES NOW, Plaintiff, Ricky Pyzynski, by and through his undersigned attorneys, and moves the Court for an order striking Defendant’s Expert Witness Edwin Ward pursuant to Federal Rules of Civil Procedure 37(c)(1) and 26(a)(2), and in support thereof states as follows: Background 1. Plaintiff, Ricky Pyzynski, worked for Thomas & Betts as an Impact Extrusion Technical Specialist for approximately 32 years. Mr. Pyzynski is a disabled veteran with a documented 20% disability related to his feet. During his employment at Thomas & Betts Mr. Pyzynski suffered an injury to his right arm. 2. Plaintiff alleges that he requested a reasonable accommodation for his foot disability and subsequent arm impairment. 3. Plaintiff further alleges that he was sent home on FMLA, told that Thomas & Betts offered no “light duty”, and advised that he could not return to work until he had a release from a doctor of all physical restrictions. Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 1 of 33 PageID 297 2 4. Plaintiff filed a dual charge of discrimination with the Florida Commission on Human Relations and the Equal Employment Opportunity Commission. Following the issuance of a Notice of Suit Rights by the EEOC, Plaintiff filed an action in both Federal and State Court. Plaintiff’s allegations include workers’ compensation retaliation, FMLA interference, ADA disability discrimination and FCRA disability discrimination. Expert Witness Disclosures 5. Defendant emailed its expert witness disclosure to Plaintiff on September 1, 2017 at 4:00 PM EST (Exhibit “A”). No amended or supplemental disclosures have been filed as of this Motion. 6. Pursuant to the Case Management and Scheduling Order [Doc. 21] the discovery deadline in this case is October 2, 2017. The deadline to file Dispositive Motions and Daubert Motions is November 1, 2017. 7. Defendant did not provide a report for Mr. Ward and maintains that he is an employee of the Plaintiff “who was not retained or specially employed to provide expert testimony in this case” and is not subject to the report requirements of Rule 26(a)(2)(B). (Exhibit “B”) 8. Defendant’s expert disclosure indicates that Mr. Ward is an employee of ABB, Ltd. and not of the Defendant, Thomas & Betts. 9. Defendant’s expert disclosure provides two ultimate opinions that he will testify to without providing a summary of the facts upon which he relied. (Exhibit “A”) 10. On September 7, 2017, Plaintiff requested dates that Plaintiff’s expert was available to have his deposition taken. (Exhibit “C”) Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 2 of 33 PageID 298 3 11. On September 8, 2017, Defendant provided Plaintiff with tentative dates that Mr. Ward would be available for deposition. (Exhibit “D”) 12. On September 13, 2017, Plaintiff sent an email and letter (Exhibit “E”) to Defendant objecting to their Expert Disclosure for failure to provide a report as required by Rule 26(a)(2)(B). 13. On September 14, 2017, Plaintiff discussed the objection with defense counsel in hopes of resolving the issue. Defense counsel requested a meet and confer call on September 19, 2017. 14. On September 18, 2017, Defendant responded that Mr. Ward was not required to provide a written expert report because he was a Thomas & Betts employee who was exempt under Rule 26(a)(2). (Exhibit “B”) 15. On September 19, 2017, Plaintiff emailed Defendant and attached a proposed Notice of Deposition Duces Tecum for Mr. Ward and asked that Defendant confirm the time and location of the deposition. (Exhibit “F”) 16. Defendant responded with the attached email asserting the following objection to the notice: “T&B objects to the document request for the same reasons we objected to this with Rick Hall. Like Hall, Ward is a T&B employee, and a duces tecum incorporated into a deposition notice cannot be used to compel production of documents by a party when, like here, it is really just a request for documents from the party that is made in an effort to avoid the requirement that party be allowed the 30 days to respond provided by Fed. R. Civ. P. 34(b)(2)(a).” (Exhibit “G”) 17. During the meet and confer call with Defense counsel on September 19, 2017, Defendant confirmed that it would not provide a report by Mr. Ward. Defense counsel further asserted that Mr. Ward did in fact have a file which he relied on in forming his expert opinions Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 3 of 33 PageID 299 4 but that they would not permit him to bring it to his deposition on September 28th. Defense counsel further informed Plaintiff that they would be filing a protective order to keep Mr. Ward from having to comply with the Notice of Deposition Duces Tecum.1 18. Defendant has filed a protective order which claims that the documents in Plaintiff’s Notice of Deposition Duces Tecum are not discoverable [Doc. 39]. 19. There is no indication from Defendant’s disclosure as to what qualifies Mr. Ward as an expert and in which field of expertise he is considered an expert. 20. Defendant’s disclosure provides nothing more than an opinion on an ultimate issue in the case without providing a summary of the facts upon which the opinion is based. 21. Defendant’s disclosure indicates that Mr. Ward will be interpreting medical records with no indication of how he is qualified to do so. 22. On the face of the expert disclosure, Mr. Ward is identified as an employee of a company other than the Defendant. 23. Mr. Ward has no connection to the specific events underlying this case. 24. Plaintiff has no way to effectively cross-examine Mr. Ward to determine the opinions to be expressed at trial, nor the basis and reasons for those opinions. Likewise, the only information Plaintiff has regarding Mr. Ward’s credentials is the Defendant’s representation that he is an expert in some unidentified specialty. 25. Plaintiff is materially prejudiced by Defendant’s failure to comply with the expert disclosure requirements of Rule 26(a). 26. For the reasons stated above the Court should strike the testimony of Mr. Ward. 1 Defense counsel did offer to provide Mr. Ward’s curriculum vitae at the deposition. Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 4 of 33 PageID 300 5 Memorandum of Law Federal Rule of Civil Procedure 26(a)(2)(A) requires litigants to disclose “the identity of any witness [they] may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” (West 2011). Rule 26(a)(2)(B) further requires litigants to produce written reports for any witness who is “retained or specially employed to provide expert testimony in the case” or “whose duties as the party's employee regularly involve giving expert testimony.” Those reports must include: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness' qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.” "The point of Rule 26(a)(2) is to minimize unfair surprise and prejudice resulting from 'sketchy and vague' disclosure prior to trial." Warner v. Ventures Health Care of Gainesville, Inc., 2001 U.S. Dist. LEXlS 26230 at *3 (M.D. Fla. July 31, 2001). Any party that "fails to provide information or identify a witness as required by Rule 26(a) ... is not allowed to use that information or witness to supply evidence on a motion, at hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. Pro. 37(c)(l). As the moving party, Plaintiff has the initial burden of showing a valid basis to strike Plaintiff's expert witness disclosures. In re Denture Cream Prod. Liab. Litig., Case No. 09– 2051–MD, 2012 WL 5199597, at *4 (S.D.Fla. Oct.22, 2012). Defendant, as the party which failed to produce written expert reports, bears the burden of demonstrating that under Rule 26(a)(2)(B), written reports are not required. Id. “The district court has broad discretion in Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 5 of 33 PageID 301 6 deciding whether a failure to disclose evidence is substantially justified or harmless under Rule 37(c)(1).” Engle v. Taco Bell of America, Inc., Case No. 8:09–cv–2102–T–33TBM, 2011 WL 883639, at *1 (M.D.Fla. Mar.14, 2011) (quoting Bane v. Breathe Easy Pulmonary Servs., Inc., Case No. 8:06–cv–40–T–33MAP, 2009 WL 92826 (M.D.Fla. Jan.14, 2009)). Although the Rule appears to limit the report requirement to employee experts with normal duties that include giving expert testimony, "[l]ike the other provisions of Rule 26, the expert report requirement turns on the substance of the testimony of the witness, not the status or categorization of the witness." See Singletary v. Stops, Inc., 2010 U.S. Dist. LEXIS 92660 at *17-18 (M.D. Fla. Sept. 7, 2010)(citations omitted). In examining the interpretation of Rule 26(a) taken by the majority of courts, the Court in Amtrak v. Ry. Express, LLC, 268 F.R.D. 211,215 (D. Md. 2010) explained, the majority of courts take the broader view that whenever an employee of a party gives expert testimony, even if outside the normal scope of his or her employment, the producing party must provide an expert report. Funai Elec. Co. v. Daewoo Elec. Corp., No. C 04-1830, 2007 WL 108972, at *3 (N.D. Cal. Apr. 11, 2007)("[A] majority of courts require reports from employee experts who render opinions on matters outside the scope of their employment."); see also Day, 1996 U.S. Dist. LEXIS 6596, 1996 WL 257654 at *2 (criticizing the strict view of Rule 26(a)(2) as "implausible" and holding that a witness whose duties do not regularly involve giving expert testimony must still provide a report when his employer, a party, "retains or specially employs" him to testify); Minn. Mining and Mfg. Co., 177 F .R.D. at 460-61 (following Day in concluding that a broader view of Rule 26(a)(2)'s expert reporting requirement is "entirely consistent with the spirit" of the Rule); KW Plastics, 199 F.R.D. at 689 (following Day and relying on legislative history to conclude that a broad interpretation of Rule 26(a)(2) is consistent with the "point" of the Rule: "to minimize unfair surprise and prejudice resulting from 'sketchy and vague' disclosure prior to trial"); Dyson Tech Ltd, 241 F.R.D. at 249 (same). George Brent Mickum IV & Luther L. Hajek, Guise, Contrivance, or Artful Dodging?: The Discovery Rules Governing Testifying Employee Experts, 24 REV. LITIG. 301, 332-41 (2005) (commenting that the majority of courts require employee experts who give expert opinions to provide expert reports). Courts broadly interpreting Rule 26 emphasize that it is inconsistent with the spirit of the rule to exclude a category of expert trial witnesses from having to produce reports. See KW Plastics, 199 F.R.D. at 689 Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 6 of 33 PageID 302 7 (quoting Day, 1996 U.S. Dist. LEXIS 6596, 1996 WL 257654 at *2) ("The logic of defendant's position would be to create a category of expert trial witness for whom no written disclosure is required - a result plainly not contemplated by the drafters of the current version of the rules."). Historically the Eleventh Circuit has found there is "no justification for excusing any experts called solely or principally to offer expert testimony, whether or not they were employees." Prieto v. Malgor, 361 F.3d at 1318 ("allowing a blanket exception for all employee expert testimony would create a category of expert trial witness for whom no written disclosure is required and should not be permitted.")(internal citations and quotations omitted). The exception to the Rule's report requirement is "limited to experts who are testifying as fact witnesses, although they may also express some expert opinions." See id. (ruling the County of Miami-Dade should have provided an expert report under Rule 26(a)(2) where an officer testified about the appropriate use of force during an arrest although not participating in that at arrest himself)(internal citations and quotations omitted). Simply put, "where employees have no connection to the specific events underlying the case, or have reviewed information solely in preparation for litigation, they must produce expert reports." Prieto, 361 F.3d at 1317 (11th Cir. 2004). As an example of those experts exempt from the report requirement, the Advisory Committee of the Federal Rules of Civil Procedure offers the "treating physician." Fed. R. Civ. Proc. 26 advisory committee's notes; Baratta v. City of Largo, 2003 U.S. Dist. LEXIS 27628 (M.D. Fla. Mar. 18, 2003); but see Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1317- 18 (11th Cir. 2011)("when a treating physician's testimony is based on a hypothesis, not the experience of treating the patient, it crosses the line from lay to expert testimony"). Consistent with the decisions cited above, "[t]he Advisory Committee's Note provides a persuasive Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 7 of 33 PageID 303 8 indication that Rule 26(a)(2)(C) is meant to apply only to so-called hybrid witnesses, i.e., fact witnesses who can also provide expert testimony ...." Call v. City of Riverside, 2014 U.S. Dist. LEXIS 68346 at *9 (S.D. Ohio May 19, 2014). The Middle District has recognized that even when some fact witness testimony is offered, an expert witness must still provide a report for those opinions based on underlying facts to which the expert has no connection. See Marco Island Cable v. Comcast Cablevision of the South, Inc., 2006 U.S. Dist. LEXIS 41766, *4 (M.D. Fla. June 22, 2006). The Middle District’s Civil Discovery Handbook (2015) echoes the majority interpretation of Rule 26(a) and specifically states that “hybrid” witnesses are not required to provide a report under Rule 26(a)(2): Middle District Discovery (2015) par. II E. Experts 1 - Disclosure and Reports of Expert Witnesses. Each party should disclose the identity of prospective retained expert witnesses and provide a complete expert report under Rule 26(a)(2), Federal Rules of Civil Procedure, within the time provided in the Court’s Case Management and Scheduling Order (which often adopts the schedule proposed by the parties in the Case Management Report)….The expert report is not required of a "hybrid" witness, such as a treating physician, who was not specifically retained for the litigation and will provide both fact and expert testimony (though non-retained experts must still be disclosed and are subject to regular document and deposition discovery). The court in Meredith v. International Marine Underwriters, 2011 WL 1466436 (D.Md. April 18, 2011), discussed the applicability of Rule 26(a)(2)(C), but still held that expert reports were required for employee witnesses whose opinions were formed specifically in anticipation of the litigation or otherwise outside their normal course of duty, notwithstanding that their duties do not regularly involve giving expert testimony. The Meredith court provided a detailed analysis of the “hybrid” witness designation similarly employed in the Middle District of Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 8 of 33 PageID 304 9 Florida.2 Even after the 2010 Amendment to Rule 26(a) Federal courts continue to require employee experts to provide a written report. “The distinguishing characteristic between expert opinions that require a report and those that do not is whether the opinion is based on information the expert witness acquired through percipient observations or whether, as in the case of retained experts, the opinion is based on information provided by others in a manner other than by being a percipient witness to the events in issue.” Sierra Pac. Indus., 2011 WL 2119078, at *4, 2011 U.S. Dist. LEXIS 60372, at *16. Defendant’s Argument Defendant relies on a recent Magistrate order in United States v. McCarthy Improvement Co., No. 3:14-CV-919-J-PDB, 2017 WL 443486, at *12 (M.D. Fla. Feb. 1, 2017) to support its position that it is not required to provide any meaningful disclosure of Mr. Ward’s opinions, the basis of these opinions, the facts upon which he relied in forming the opinions or a description of Mr. Ward’s qualifications. Plaintiff disagrees that the order in that case is binding on this Court and definitively establishes a new standard for the Middle District of Florida. Defendant further contends that Mr. Ward’s disclosure must only comply with the requirements of Rule 26(a)(2)(C) which requires the following information: (i) the subject matter 2 The Court must first determine whether Plaintiff's designated experts meet the criteria for mandatory reporting set out in Rule 26(a)(2)(B). Those criteria are the witness' being “retained or specially employed to provide expert testimony in the case” or having “duties as the party's employee [that] regularly involve giving expert testimony.” For simplicity, the Court refers to this class of witness as retained experts. By exclusion, these criteria also define a category of expert witnesses who are not required to file reports: i.e., those who are or have been employed by the party in some capacity, but not specially for the purpose of giving expert testimony. See, e.g., Watson v. U.S., 485 F.3d 1100, 1107 (10th Cir.2007); Tokai Corp. v. Easton Enterprises, 632 F.3d 1358 (Fed.Cir.2011) (citing Torres v. City of Los Angeles, 548 F.3d 1197, 1214 (9th Cir.2008)); Downey v. Bob's Discount Furniture Holdings, 633 F.3d 1, 6 (1st Cir.2011). These are referred to as hybrid witnesses (i.e., a hybrid of an expert and a fact witness). The distinction lies in the source of the facts on which the witness' expert opinion is based. See id. To the extent that a witness' opinion is based on facts learned or observations made “in the normal course of duty,” the witness is a hybrid and need not submit a report. See id; National R.R. Passenger Corp. v. Railway Express, 268 F.R.D. 211, 216 (D.Md.2010) (citing Desrosiers v. Giddings & Lewis Machine Tools, 2009 WL 4406149 at *5 (D.Md.2009)). The same witness, however, must submit a report regarding any opinions formed specifically in anticipation of the litigation, or otherwise outside the normal course of a duty. Id Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 9 of 33 PageID 305 10 on which Mr. Ward is expected to present expert witness testimony and (ii) a summary of the facts and opinions to which Mr. Ward is expected to testify. Mr. Ward’s disclosure is also insufficient under the requirements of Rule 26(a)(2)(C): “Mr. Ward will to testify that Plaintiff, Ricky Pyzynski ("Pyzynski" or "Plaintiff'), could not have performed the essential functions of his position as Impact Extrusion Technical Specialist with the restrictions placed on Pyzynski by his physicians in approximately October, 2012, and continuing through the separation of Pyzynski' s employment in approximately April, 2013. Mr. Ward will further testify that there was no accommodation for the position of Impact Extrusion Technical Specialist Thomas & Betts could have provided to Pyzynski that would have allowed him to perform the essential functions of his job without creating a direct threat and significant risk to the health and safety of himself and/or other employees, and that there was no available accommodation that would not have amounted to an undue hardship for Thomas & Betts because of the unavoidable safety risks.” (Exhibit “A”) The disclosure merely identifies two opinions that Mr. Ward will provide on the ultimate issue of the case without providing a summary of the facts upon which he is expected to testify. Without the information required by Rule 26(a)(2)(C) as to the opinions Defendant's expert is expected to testify to and the main facts on which his opinions are based, Plaintiff's ability to meaningfully depose or cross-examine this witness is undermined. On August 3, 2017, Defendant sent the attached correspondence in response to Plaintiff’s Expert Disclosures of treating physicians (Exhibit “H”). In that letter Defendant cautioned Plaintiff that: “To the extent the treating physicians offer opinions based on their education, training, and experience beyond facts and observations procured directly from treating Plaintiff, Thomas & Betts will object, as Plaintiff has not provided a written report describing such opinions as required by Fed. R. Civ. P. 26(a)(2)(B) by the deadline in our Scheduling Order, and that deadline has now passed….to the extent any treating physician offers opinions based on facts gathered from you, the documents or pleadings in this case, or any other source other than the physician's own recollection of treating Plaintiff, Thomas & Betts will object on the basis that there is no written report required by Fed. R. Civ. P. 26(a)(2)(B) by the deadline in the Scheduling Order.” Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 10 of 33 PageID 306 11 The Defendant in this case has hundreds of pages of the Plaintiff’s medical records which contain their notes regarding the treatment of Mr. Pyzynski. Defendant is still concerned that Mr. Pyzynski’s treating physicians will testify based on “facts gathered from [attorneys], documents or pleadings in the case, or any other source” and intends to object to that testimony, if offered, for failure to file a written report under Rule 26(a)(2)(B). Plaintiff’s situation is decidedly more precarious with regard to Mr. Ward who is allegedly the employee of an interested party, has provided no written report, and provided a self-serving and insufficient disclosure under Rule 26(a)(2)(c). Furthermore, Defense Counsel has filed a protective order to prevent the witness from even bringing a copy of his file with him to the Deposition Duces Tecum on September 28th. The disclosure requirements are “intended to provide opposing parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony of other witnesses.” Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) (internal quotation marks omitted). Defendant provided their expert disclosure at 4:00 PM on the Friday before Labor Day weekend. The next business day was September 5th, less than thirty days before the October 2nd discovery cutoff in this case. Defendant didn’t give final confirmation for their expert’s deposition availability and time until September 19th. Plaintiff immediately sent a notice of deposition duces tecum requesting a copy of Mr. Ward’s file to be produced at his deposition on September 28th. Defendant has objected stating: “Ward is a T&B employee, and a duces tecum incorporated into a deposition notice cannot be used to compel production of documents by a party when, like here, it is really just a request for documents from the party that is made in an effort to avoid the requirement that party be allowed the 30 days to respond provided by Fed. R. Civ. P. 34(b)(2)(a).” [see also Doc. 39] Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 11 of 33 PageID 307 12 Defendant’s actions are clearly calculated to avoid any disclosure of information that Plaintiff could reasonably use to prepare for trial or the deposition of Mr. Ward. The Amendment Committee Notes to the 1993 amendment of Rule 26(a)(2) state: “this paragraph imposes an additional duty to disclose information regarding expert testimony sufficiently in advance of trial that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses.” Ignoring the cooperative spirit of Rule 26, the Defendant has instead engaged in gamesmanship by using nothing more than an additional fact witness to further their theory of the case and obstruct Plaintiff from conducting expert discovery and potentially identifying rebuttal witnesses. This is clearly demonstrated by Defendant’s use of a protective order and attempt to classify Mr. Ward as a party, and not an expert, for purposes of Rule 34(b)(2)(a). Plaintiff is entitled to depose Defendant’s proposed expert under Rule 26(b)(4). There is no requirement under Rule 30(b) that Plaintiff give an expert witness 30 days to respond to a deposition duces tecum. Defendant’s use of Rule 34(b)(2)(a) to obstruct Plaintiff from conducting meaningful discovery on their expert witness only strengthens Plaintiff’s suspicions of the dubious foundation for Mr. Ward’s opinion. The Middle District has further explained that “even where a party has been given an opportunity to depose an expert, the offering party cannot avoid the report requirement. Walter lnt'l Prods. v. Salinas, 650 F.3d 1402, 1413 (11th Cir. Fla. 2011) ("The reason for requiring that an expert report be provided before a deposition is taken is so the opposing party can use the report to examine the expert at the deposition. As the district court pointed out, it is harmful to deprive opposing counsel of the expert's report before his deposition."). Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 12 of 33 PageID 308 13 Rule 37(c) Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Under Rule 37(c), if a party fails to make or supplement required disclosures or discovery responses, “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.” Fed. R. Civ. P. 37(c)(1). A court may also or instead, on motion and after giving an opportunity to be heard, “order payment of the reasonable expenses, including attorney's fees, caused by the failure,” “inform the jury of the party's failure,” and “impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)–(vi).” Fed. R. Civ. P. 37(c)(1). Besides or instead of those sanctions, “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). Defendant’s Expert: Edwin Ward Edwin Ward has been identified as an employee of ABB, not the Defendant Thomas & Betts. Even if Defendant can prove that Mr. Ward is an employee of Thomas & Betts, he was not disclosed as a fact witness and has no involvement in the underlying events of this case. His testimony will rely solely on information provided to him by defense counsel and materials he reviewed to prepare his testimony in this case. He is therefore not a hybrid witness who is exempt from the report requirements of Rule 26(a) and specifically discussed in the Middle District Discovery Handbook. Defendant has failed to comply with the disclosure requirements of Rule 26(a). Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 13 of 33 PageID 309 14 Certificate Of Good Faith Conference In accordance with Local Rule 3.01(g), I certify that counsel for Mr. Pyzynski has conferred with counsel for Thomas & Betts via telephone, most recently on September 19, 2017, regarding this motion and the relief herein sought, and that Thomas & Betts opposes the same. Conclusion Defendant has failed to comply with the expert disclosure requirements of Rule 26(a)(2)(B) and 26(a)(2)(C). In order to find out what Mr. Ward’s opinions are and upon what facts they are based, Plaintiff, at his own expense, is required to incur significant costs and time to travel to Memphis, Tennessee to conduct a deposition of Mr. Ward. Since Plaintiff has no information to prepare for the cross-examination of Mr. Ward, the deposition will likely take substantially longer than would ordinarily be required with a sufficient expert disclosure. Defendant has further refused to comply with Plaintiff’s Notice of Deposition Duces Tecum which requests that Mr. Ward bring his file and any other materials he relied upon in developing his expert opinion to the deposition. Plaintiff has been materially prejudiced by Defendant’s non- compliance. Defendant’s non-compliance is not substantially justified or harmless. WHEREFORE, Pursuant to Rule 37(c), Plaintiff respectfully requests that this Court strike Mr. Ward as an expert witness in this case. Plaintiff further requests that Defendant be ordered to pay the reasonable expenses and attorney's fees incurred as a result of Defendant’s non-compliance and any such other relief deemed appropriate and just by this Court. Respectfully submitted, SPOHRER & DODD, P.L. /s/ Keith L. Maynard Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 14 of 33 PageID 310 15 KEITH MAYNARD FBN: 36214 ROBERT F. SPOHRER FBN: 184500 701 West Adams Street, Suite 2 Jacksonville, FL 32204 Telephone: 904.309.6500 Fax: 904.309.6501 KMaynard@sdlitigation.com RSpohrer@sdlitigation.com COUNSEL FOR PLAINTIFF And RODZIEWICZ LAW, P.L. DAVID J. RODZIEWICZ FBN: 91211 100 S. Beach St., Ste 212 Daytona Beach, FL 32114 Telephone: 386.232.8824 Fax: 386.256.1526 rodzlaw@gmail.com COUNSEL FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on September 21, 2017, the foregoing document was electronically filed with the Clerk of this Court using the CM/ECF system which will send notice of electronic filing and complete service of the foregoing as required to: Jonathan C. Hancock Whitney M. Harmon Emma J. Redden Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. 165 Madison Ave. Memphis, Tennessee 38103 Tel: 901.526.2000 / Fax: 901.577.2303 jhancock@bakerdonelson.com wharmon@bakerdonelson.com eredden@bakerdonelson.com Marisa Rosen Dorough Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. 200 South Orange Ave., Suite 2900 P.O. Box 1549 Orlando, Florida 32802 Telephone: 407.422.6600 Fax: 407.841.0325 mdorough@bakerdonelson.com /s/ Keith L. Maynard Keith L. Maynard, Esq. Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 15 of 33 PageID 311 1 Sarah Shedlarski From: Hancock, Jonathan C. [jhancock@bakerdonelson.com] Sent: Friday, September 01, 2017 4:00 PM To: Keith Maynard; 'Dave Rodziewicz' (rodzlaw@gmail.com); Sarah Shedlarski Cc: Redden, Emma Subject: Flash Drive Discovery Request(s) & Expert Disclosure Attachments: Defendant's Expert Disclosures.pdf September 1, 2017 Keith and Dave, Following our discussion about the flash drive last week after Happy's deposition, we took a look at the discovery propounded to Plaintiff thus far. We believe that T&B's First Requests for Production of Documents and Things, specifically Request No. 2 and especially Request No. 11, include requests that would encompass the flash drive and therefore call for a supplementation of Mr. Pyzynski's responses. I understood you wanted to produce the flash drive pursuant to a formal discovery request, but it does not appear that there is a need to serve an additional, separate request given the things previously sought. I am also attaching a service copy of Defendant's Expert Disclosure, a hard copy of which will also go in the mail today. Thanks, and I hope you both enjoy a nice Labor Day holiday weekend - Jonathan Jonathan C. Hancock Shareholder Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 2000 First Tennessee Building 165 Madison Avenue Memphis, Tennessee 38103 Direct: 901.577.8202 Facsimile: 901.577.0821 Email: jhancock@bakerdonelson.com www.bakerdonelson.com Baker, Donelson, Bearman, Caldwell & Berkowitz, PC represents clients across the U.S. and abroad from offices in Alabama, Florida, Georgia, Louisiana, Maryland, Mississippi, Tennessee, South Carolina, Texas, and Washington, D.C Baker Donelson - One of FORTUNE Magazine's "100 Best Companies to Work For®" for Seven Years in a Row! Click to view our Quick and Easy Guides to L&E Law . Under requirements imposed by the IRS, we inform you that, if any advice concerning one or more U.S. federal tax issues is contained in this communication (including in any attachments and, if this communication is by email, then in any part of the same series of emails), such advice was not intended or written by the sender or by Baker, Donelson, Bearman, Caldwell & Berkowitz, PC to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or tax-related matter addressed herein. Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 16 of 33 PageID 312 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION RICKY PYZYNSKI § § § § Plaintiff, vs. § Case No. 6:16-cv-01998-PGB-DCI § THOMAS & BETTS CORP. § § Defendant. § DEFENDANT'S EXPERT DISCLOSURES Comes now Defendant, Thomas & Betts Corp. ("Thomas & Betts," "T&B," or "Defendant"), by and through its undersigned Counsel, pursuant to Federal Rule of Civil Procedure 26(a)(2)(C), and hereby submits to its Expert Disclosures, identifying the following expert witness who may be called at the trial of this case, and who was not retained or specially employed to provide expert testimony in this case: 1. Edwin Ward, HSE/SA Sr. Director Global BU EPIP, ABB Mr. Ward currently holds the position of Senior Director of Health, and Environment and Sustainability for the Global Business Unit EPIP at ABB, Defendant Thomas & Betts' parent corporation, a position he has held for approximately two years. He has been employed in health and safety positions for almost thirty years, and has been an employee of Thomas & Betts since 2008. Among other things, Mr. Ward's experience at Thomas & Betts includes coordinating with Human Resources to identify safety issues and solutions, and collaborating with leadership at Thomas & Betts to set and achieve Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 17 of 33 PageID 313 safety standards for its employees. Mr. Ward received his Bachelor of Arts in Environmental Studies with honors from Hiram College, and during the course of his career Mr. Ward has completed numerous occupational health and safety training programs and educational courses. Mr. Ward will to testify that Plaintiff, Ricky Pyzynski ("Pyzynski" or "Plaintiff'), could not have performed the essential functions of his position as Impact Extrusion Technical Specialist with the restrictions placed on Pyzynski by his physicians in approximately October, 2012, and continuing through the separation of Pyzynski' s employment in approximately April, 2013. Mr. Ward will further testify that there was no accommodation for the position of Impact Extrusion Technical Specialist Thomas & Betts could have provided to Pyzynski that would have allowed him to perform the essential functions of his job without creating a direct threat and significant risk to the health and safety of himself and/or other employees, and that there was no available accommodation that would not have amounted to an undue hardship for Thomas & Betts because of the unavoidable safety risks. 2 • Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 18 of 33 PageID 314 Respectfully submitted, August 31, 2017 sf Jonathan C. Hancock Marisa E. Rosen Florida Bar No.: 73152 BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. SunTrust Center 200 South Orange Ave., Ste. 2900 Post Office Box 1549 Orlando, Florida 32802 Telephone: ( 407) 422-6600 Telecopier: ( 407) 841-0325 mrosen@bakerdonelson.com vcmcfarland@bakerdonelson.com fedcts@bakerdonelson.com Jonathan C. Hancock (TN BPR #18018) Whitney M. Harmon (TN BPR # 24985) Emma J. Redden (TN BPR # 33501) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 2000 First Tennessee Building 165 Madison Avenue Memphis, Tennessee 38103 (90 1) 526-2000 - telephone (901) 577-2303- facsimile ihancock@bakerdonelson.com wharmon@bakerdonelson.com eredden@bakerdonelson.com Attorneys for Defendant, Thomas & Betts Corp. 3 Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 19 of 33 PageID 315 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 1st day of September, 2017, a copy of the foregoing has been sent via electronic mail to the following counsel of record: Keith L. Maynard Robert F. Spohrer SPOHRER & DODD, P.L. 701 West Adams Street, Suite 2 Jacksonville, FL 32204 Telephone: 904.309.6500 Fax: 904.309.6501 kmaynard@sdlitigation.com rspohrer@sdlitigation.com David J. Radziewicz RODZIEWICZ LAW, P.L. 100 S. Beach St., Suite 212 Daytona Beach, FL 32114 Telephone: 386.232.8824 rodzlaw@gmail.com s/ Jonathan C. Hancock 4 Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 20 of 33 PageID 316 2000 FIRST TENNESSEE BUILDING 165 MADISON AVENUE MEMPHIS, TENNESSEE 38103 PHONE: 901.526.2000 FAX: 901.577.2303 www.bakerdonelson.com ALABAMA • FLORIDA • GEORGIA • LOUISIANA • MARYLAND • MISSISSIPPI • SOUTH CAROLINA • TENNESSEE • TEXAS • VIRGINIA • WASHINGTON, D.C. JONATHAN C. HANCOCK Direct Dial: 901.577.8202 Direct Fax: 901.577.0821 E-Mail Address: jhancock@bakerdonelson.com September 18, 2017 VIA E-MAIL Keith L. Maynard, Esq. Robert F. Spohrer, Esq. Spohrer & Dodd P.L. 701 West Adams Street, Suite 2 Jacksonville, FL 32204 KMaynard@sdlitigation.com RSpohrer@sdlitigation.com David J. Rodziewicz, Esq. Rodziewicz Law, P.L. 116 East Granada Blvd., Suite 201 Ormond Beach, FL 32176 rodzlaw@gmail.com Re: Ricky Pyzynski v. Thomas & Betts Corporation Dear Counsel: This letter addresses your letter dated September 13, 2017, regarding Defendant’s Expert Disclosure provided on September 1, 2017. In your letter, you both inquire about Thomas & Betts’ intentions with respect to a written expert report for Mr. Edwin Ward pursuant to Fed. R. Civ. P. 26(a)(2)(B), and take the position that a written expert report is required by the language of the Rule and case law interpreting the Rule. After further consideration, Thomas & Betts’ position remains that a written report for Mr. Ward is not required by the Rule or case law interpreting it for the reasons provided herein. Federal Rule of Civil Procedure 26(a)(2)(B) provides that a written report is only required for experts who are “retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” With regard to Mr. Ward, he was not specially employed by Thomas & Betts (or counsel for Thomas & Betts) to provide expert testimony in this case. Instead, he is an employee of Thomas & Betts, and his duties as a Thomas & Betts employee do not regularly involve giving expert testimony. In fact, Mr. Ward has never given expert testimony. The case law cited in your letter that indicates a written report is nonetheless required for an expert who is an employee of a party if the expert’s opinions in the case were formed specifically in anticipation of litigation or otherwise outside his or her normal course of duties, despite the fact that the expert’s duties do not regularly involve giving expert testimony. The Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 21 of 33 PageID 317 September 18, 2017 Page 2 case law you cite is not from our jurisdiction, and is thus not binding on the Court. Further, as we briefly discussed Thursday, there is a split of authority between jurisdictions as to the interpretation of this Rule, while the Middle District of Florida has recently taken the position that the plain language of Fed. R. Civ. P. 26(a)(2)(B) governs, and refused to adopt the interpretation of the Rule given by the courts cited in your letter. Recently, the United States District Court for the Middle District of Florida made clear that an expert who was an employee of the Defendants, and who did not regularly give expert testimony as part of his job, was not required to provide a written report, regardless of whether he had personal knowledge of the facts of the case. United States v. McCarthy Improvement Co., No. 3:14-CV-919-J-PDB, 2017 WL 443486, at *12 (M.D. Fla. Feb. 1, 2017) (“Under the plain language of Rule 26(a)(2)(B), Carroll [the expert] was not required to provide a report because he was not retained or specially employed to provide expert testimony and his duties do not regularly involve giving expert testimony. He must comply only with the disclosure requirements in Rule 26(a)(2)(C).”). The Court in McCarthy specifically considered a case similar to those cited in your letter that interpreted the Rule as requiring a written report for experts who are employees if they have no personal knowledge of the facts of the particular case, even if that employee does not regularly testify as an expert witness as a part of his or her normal duties. Id. Regarding this line of reasoning, the Court held “The Court does not find . . . [the case] persuasive because contained no analysis and the plain language of the Rule weighs against applying it here. Its plain language requires only certain expert witnesses to comply with the more detailed expert- report requirements of Rule 26(a)(2)(B); all others must comply with the less detailed disclosure requirements of 26(a)(2)(C). That plain-language reading is bolstered by the commentary to the [2010] amendment, explaining, ‘An (a)(2)(B) report is required only from an expert described in [the Rule].’” Therefore, our jurisdiction considered the argument you are setting forth and expressly rejected it. The expert-report requirement under Rule 26(a)(2) for employees of parties to the litigation has been settled in the Middle District of Florida, who has adopted the plain-language interpretation of the Rule’s requirements. Therefore, pursuant to the plain language of the Rule and the precedent in our jurisdiction, Mr. Ward is not required to provide a written expert report because his job duties do not involve regularly giving expert testimony. Based on the foregoing, to the extent Thomas & Betts is required to respond to a Motion by Plaintiff to either strike Mr. Ward as an expert on the basis that he did not provide a written report or to require him to provide a written report based upon the authority cited in your letter or similar authority, it will seek related attorneys’ fees and costs. Should you have any questions or would like to discuss this issue further, I am available at your convenience. Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 22 of 33 PageID 318 September 18, 2017 Page 3 Very truly yours, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC Jonathan C. Hancock cc: Emma J. Redden, Esq. Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 23 of 33 PageID 319 1 Sarah Shedlarski From: Keith Maynard Sent: Thursday, September 07, 2017 1:03 AM To: jhancock@bakerdonelson.com Cc: Sarah Shedlarski; Dave Rodziewicz; Emma Redden Subject: Expert Depo Jonathan, Please provide us with potential depo dates for the expert(s) you disclosed last week. V/r Keith L. Maynard Spohrer & Dodd 701 W. Adams St. Jacksonville, FL 32204 P: (904) 309-6500 F: (904) 309-6501 E-mail: kmaynard@sdlitigation.com Website: www.sdlitigation.com Sent from my iPhone Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 24 of 33 PageID 320 1 Sarah Shedlarski From: Hancock, Jonathan C. [jhancock@bakerdonelson.com] Sent: Friday, September 08, 2017 11:30 AM To: Sarah Shedlarski; Keith Maynard Cc: Dave Rodziewicz; Redden, Emma Subject: RE: Expert Depo Keith, Dave & Sarah - We continue to watch the storm and hope that all of you in its path can stay safe and sound. I am obviously also concerned about your ability to make it to next week's deposition in Ashville, but will sit tight until we have more information unless you would like to discuss it now. I do not know on what other dates Mrs. King may be available, but I am happy to check if you would like me to. T&B's expert witness, Ed Ward, will be in Memphis and available the last week of September, and is specifically available all day on Wednesday the 27th, Thursday the 28th after 2 pm cst, and Friday the 29th between 8 and 10 am cst. It appears Wednesday the 27th would be the best because it would allow whoever deposes him to get back out on a late flight that day, but if that doesn’t work the afternoon of the 28th is probably the better alternative as Mr. Ward will only be available for about an hour and a half on Friday the 29th. Let me know which date and time you prefer, and if needed, give me a call today and we can talk more about available dates and times. Thanks - Jonathan Jonathan C. Hancock Shareholder Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 2000 First Tennessee Building 165 Madison Avenue Memphis, Tennessee 38103 Direct: 901.577.8202 Facsimile: 901.577.0821 Email: jhancock@bakerdonelson.com www.bakerdonelson.com Baker, Donelson, Bearman, Caldwell & Berkowitz, PC represents clients across the U.S. and abroad from offices in Alabama, Florida, Georgia, Louisiana, Maryland, Mississippi, Tennessee, South Carolina, Texas, and Washington, D.C Baker Donelson - One of FORTUNE Magazine's "100 Best Companies to Work For®" for Seven Years in a Row! Click to view our Quick and Easy Guides to L&E Law Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 25 of 33 PageID 321 1 Sarah Shedlarski From: Keith Maynard Sent: Wednesday, September 13, 2017 4:39 PM To: 'Hancock, Jonathan C.'; 'Dave Rodziewicz' (rodzlaw@gmail.com); Sarah Shedlarski Cc: Redden, Emma Subject: RE: Flash Drive Discovery Request(s) & Expert Disclosure Attachments: Ltr to Hancock - expert disclosure.pdf Jonathan, We still have not received the hard copy of your expert’s written report pursuant to F.R.C.P. 26(a)(2)(B). Our impression from your email was that it was going to be mailed to us. Please let me know if we are missing something. If your client is taking the position that Mr. Ward isn’t required to submit a written report then the attached correspondence will address that. v/r Keith L. Maynard Attorney 701 West Adams Street Suite 2 Jacksonville, FL 32204 Office: (904) 309‐6500 Direct: (904) 483‐5334 Fax: (904) 309‐6501 E‐mail: kmaynard@sdlitigation.com Web site: www.sdlitigation.com This e-mail transmission and any documents, files or previous e-mail messages attached to it, are confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify me by forwarding this e-mail to Kmaynard@sdlitigation.com or by telephone at (904) 309-6500 and then delete the message and its attachments from your computer. Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 26 of 33 PageID 322 701 West Adams Street / Suite 2 / Jacksonville, FL 32204 / phone 904.309.6500 / fax 904.309.6501 / toll free 800.413.7948 www.sdlitigation.com Galen D. Bauer Keith L. Maynard Steven R. Browning Barry E. Newman Roger J. Dodd Matthew W. Spohrer Jay M. Howanitz Robert F. Spohrer Gretchen Van Liere September 13, 2017 Jonathan C. Hancock, Esq. Baker, Donelson, Bearman, Caldwell, & Berkowitz, PC 165 Madison Ave. Memphis, TN 38103 RE: Ricky Pyzynski V. Thomas & Betts Corporation Expert Disclosure Dear Mr. Hancock: We have had the opportunity to review Defendant’s Expert Disclosure provided on September 1, 2017. As per the disclosure, your expert, Mr. Edwin Ward, will testify to the following: “Mr. Ward will to testify that Plaintiff, Ricky Pyzynski ("Pyzynski" or "Plaintiff'), could not have performed the essential functions of his position as Impact Extrusion Technical Specialist with the restrictions placed on Pyzynski by his physicians in approximately October, 2012, and continuing through the separation of Pyzynski's employment in approximately April, 2013. Mr. Ward will further testify that there was no accommodation for the position of Impact Extrusion Technical Specialist Thomas & Betts could have provided to Pyzynski that would have allowed him to perform the essential functions of his job without creating a direct threat and significant risk to the health and safety of himself and/or other employees, and that there was no available accommodation that would not have amounted to an undue hardship for Thomas & Betts because of the unavoidable safety risks.” Although you have provided a general description as to what he will testify to, you have failed to provide a written report or any basis for Mr. Ward's opinion. Your email of September 1, 2017 stated that you would mail a hard copy of the disclosure to our office. To date, we have received no expert report as required by the rules. Pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), the disclosure must be accompanied by a written report containing the following: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 27 of 33 PageID 323 701 West Adams Street / Suite 2 / Jacksonville, FL 32204 / phone 904.309.6500 / fax 904.309.6501 / toll free 800.413.7948 www.sdlitigation.com (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. The expert report must be “prepared and signed by the witness,” Rule 26(a)(2)(B). The United States District Court for the Middle District of Florida has held that a Rule 26(a)(2)(B) report is required for an employee witness whose opinions were formed specifically in anticipation of litigation or otherwise outside their normal course of duty, even if the employee’s duties do not regularly involve giving expert testimony. See Meredith v. International Marine Underwriters, 2011 WL 1466436 (D. Md. 2011); D.G. v. Henry, 2011 WL 2746180 (N.D.Okla. 2011). Any party that “without substantial justification” fails to disclose this information is not permitted to use the witness as evidence at trial “unless such failure is harmless.” Fed. R. Civ. Proc. 37(c)(1). The district court may impose other appropriate sanctions including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Id. Defendant's expert disclosures fail to provide us with adequate information to determine how Mr. Ward formed his expert opinion and what information he relied on. Therefore, Defendant has failed to timely comply with the requirements of Rule 26(a)(2)(B) and the deadline ordered by this Court for expert disclosures. Plaintiff objects to the use of Mr. Ward as an expert witness in this case. As you are aware, discovery is closing on October 2, 2017. One of the purposes for Rule 26(a)(2)(B) reports is to expedite the exchange of information between the parties so that there is no surprise at trial. A complete expert report under this rule usually precludes the need for an expert deposition. Please let us know by Monday, September 18th if you will withdraw Mr. Ward as an expert witness or we will move to strike him as an expert under F.R.C.P 37(c). I am free to meet and confer regarding this issue during the day tomorrow in between deposing Ms. King. In the alternative, we can schedule a meet and confer call on Friday, September 15th. Sincerely, /s/ Keith L. Maynard Keith L. Maynard KLM/sas Cc: David J. Rodziewicz, Esq. Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 28 of 33 PageID 324 1 Sarah Shedlarski From: Keith Maynard Sent: Tuesday, September 19, 2017 10:16 AM To: 'Hancock, Jonathan C.'; Sarah Shedlarski Cc: Dave Rodziewicz; Redden, Emma Subject: RE: Expert Depo Attachments: NOD - Ward.pdf Jonathan, Attached is the Plaintiff’s proposed Notice of Taking Videotaped Deposition Duces Tecum of Edwin Ward. Before I finalize it I wanted to make sure the start time is still 2:00 PM on September 28th. We can discuss during our call at 11:00 AM EST this morning. What number should we call? v/r Keith L. Maynard Attorney 701 West Adams Street Suite 2 Jacksonville, FL 32204 Office: (904) 309-6500 Direct: (904) 483-5334 Fax: (904) 309-6501 E-mail: kmaynard@sdlitigation.com Web site: www.sdlitigation.com This e-mail transmission and any documents, files or previous e-mail messages attached to it, are confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify me by forwarding this e-mail to Kmaynard@sdlitigation.com or by telephone at (904) 309-6500 and then delete the message and its attachments from your computer. Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 29 of 33 PageID 325 1 Sarah Shedlarski From: Hancock, Jonathan C. [jhancock@bakerdonelson.com] Sent: Tuesday, September 19, 2017 10:53 AM To: Keith Maynard; Sarah Shedlarski Cc: Dave Rodziewicz; Redden, Emma Subject: RE: Expert Depo Keith - T&B objects to the document request for the same reasons we objected to this with Rick Hall. Like Hall, Ward is a T&B employee, and a duces tecum incorporated into a deposition notice cannot be used to compel production of documents by a party when, like here, it is really just a request for documents from the party that is made in an effort to avoid the requirement that party be allowed the 30 days to respond provided by Fed. R. Civ. P. 34(b)(2)(a). Unless you have some authority that suggests this is permissible, which we have not been able to locate, we will either need to agree that this is a deposition without an accompanying request for documents or we will be required to seek a protective order. You can call my direct line below at 10:00 am cst for our call. Thanks, Jonathan Jonathan C. Hancock Shareholder Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 2000 First Tennessee Building 165 Madison Avenue Memphis, Tennessee 38103 Direct: 901.577.8202 Facsimile: 901.577.0821 Email: jhancock@bakerdonelson.com www.bakerdonelson.com Baker, Donelson, Bearman, Caldwell & Berkowitz, PC represents clients across the U.S. and abroad from offices in Alabama, Florida, Georgia, Louisiana, Maryland, Mississippi, Tennessee, South Carolina, Texas, and Washington, D.C Baker Donelson - One of FORTUNE Magazine's "100 Best Companies to Work For®" for Seven Years in a Row! Click to view our Quick and Easy Guides to L&E Law . Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 30 of 33 PageID 326 BAlm~ DONELSON BEARMAN, CALDWELL&:, BERKOWITZ, PC JONATHAN C. HANCOCK Direct Dial: 901.577.8202 Direct Fax: 901.577.0821 E-Mail Address: jhancock@bakerdonelson.com 2000 FIRST TENNESSEE BUILDING 165 MADISON AVENUE MEMPHIS, TENNESSEE 38103 PHONE: 901.526.2000 FAX: 901.5n.2303 www .bakerdonelson.com August 3, 2017 Keith L. Maynard, Esq. Robert F. Spohrer, Esq. Spohrer & Dodd P .L. 701 West Adams Street, Suite 2 Jacksonville, FL 32204 KMaynard@sdlitigation.com RSpohrer@sdlitigation.com VIA E-MAIL AND U.S. MAIL David J. Rodziewicz, Esq. Rodziewicz Law, P .L. 116 East Granada Blvd., Suite 201 Ormond Beach, FL 32176 rodzlaw@gmail.com Re: Ricky Pyzynski v. Thomas & Betts Corporation Dear Counsel: We are in receipt of Plaintiffs Expert Witness Disclosure dated August 1, 2017. We write to consult with you regarding the experts disclosed and the permissible scope of their testimony under Fed. R. Civ. P. 26(a)(2). Plaintiffs Expert Disclosures list eleven of Plaintiffs treating physicians and no retained experts. While retained experts must provide a written report pursuant to Fed. R. Civ. P. 26(a)(2)(B), we acknowledge that "treating physicians" are generally not required to provide a written report. However, the United States District Court for the Middle District of Florida, among many other jurisdictions, has explicitly held that in determining whether an expert needs to provide a written report, "the label· of 'treating physician' is irrelevant; instead, the detennination turns on the substance of the physician's testimony." Blakely v. Safe co Ins. Co. of Rlinois, No. 6:13-CV-796-0RL-37, 2014 WL 1118071, at *2 (M.D. Fla. Mar. 20, 2014). Specifically, a treating physician who does not provide a written report with the expert disclosures does not have broad permission to testify as to matters other than treatment of the Plaintiff. Instead, "if a health care professional is asked to give any additional opinions, beyond those procured directly from treatment, then for those additional opinions to be admissible, Plaintiff must first provide the full written disclosures required by Rule 26(a)(2)(B)." Blakley, 2014 WL 1118071, at *2. ALABAMA • FLORIDA • GEORGIA • LOUISIANA • MARYLAND • MISSISSIPPI • SOUTH CAROLINA • TENNESSEE • TEXAS • VIRGINIA • WASHINGTON, Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 31 of 33 PageID 327 August 3, 2017 Page2 In Plaintiff's Expert Disclosures, it states that the treating physicians are "expected to base [their] testimony upon his education, training and experience as a medical doctor and [their] observations, treatment, care and evaluation of Mr. Pyzynski." To the extent the treating physicians offer opinions based on their education, training, and experience beyond facts and observations procured directly from treating Plaintiff, Thomas & Betts will object, as Plaintiff has not provided a written report describing such opinions as required by Fed. R. Civ. P. 26(a)(2)(B) by the deadline in our Scheduling Order, and that deadline has now passed. Objectionable opinions under this standard would also include an opinion as to Plaintiffs ability to perform the essential functions of the position of Impact Extrusion Technical Specialist at Thomas & Betts with or without reasonable accommodation. Plaintiff's Expert Disclosures also state that Plaintiff's treating physicians may offer causation opinions. Courts within the Eleventh Circuit have held that a physician offered to provide causation testimony might do so without submitting an expert report in accordance with Rule 26(a)(2) so long as the causation opinion was "formed and based on observations made during the course of treatment." If, however, "the physician's opinion [is] based on facts gathered outside the course of treatment, or if the physician's testimony will involve the use of hypotheticals, then a full subsection B report will be required." See, e.g., Kondragunta v. Ace Doran Hauling & Rigging Co., No. 11-1094, 2013 WL 1189493, at *9 (N.D. Ga. Mar. 21, 20 13). Therefore, to the extent any treating physician offers opinions based on facts gathered from you, the documents or pleadings in this case, or any other source other than the physician's own recollection of treating Plaintiff, Thomas & Betts will object on the basis that there is no written report required by Fed. R. Civ. P. 26(a)(2)(B) by the deadline in the Scheduling Order. Additionally, Plaintiff has disclosed eleven treating physicians as experts who may testify at trial in this case. To the extent Plaintiff does not call any of the listed physicians to testify at trial, or to the extent the Court prohibits any of the listed physicians from testifying at the trial in this matter because they did not provide a written report, Thomas & Betts will object to the recovery of related attorney's fees or costs. Regarding a related matter, we sent an email on Friday, July 28, 2017, asking for supplementation to Plaintiff's discovery responses with the documents and information contained on the flash drive in Plaintiff's possession referenced by Plaintiff in his deposition. You responded that you would go through the deposition transcript of Plaintiff and determine if there is any information further responsive to Thomas & Betts' Requests for Production, and that you would supplement your Responses if so. There is no reason a search for this flash drive cannot be concluded now. Please provide the flash drive or more information regarding its content by the close of business this Friday, August 4, 2017, or we will also seek relief from the Court as to this issue. The intent of this letter is to clarify our client's positon with respect to Plaintiffs disclosed experts in hopes we can confirm that we agree on the scope of their testimony. To the extent that you may disagree with the positions noted in this letter, we are available to further consult on these issues at your convenience. If we do not hear back from you regarding these issues we will assume we are in agreement and there is no need for further discussion regarding the scope of these witnesses' testimony. Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 32 of 33 PageID 328 August 3, 2017 Page 3 cc: Emma J. Redden, Esq. Best regards, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC Case 6:16-cv-01998-PGB-DCI Document 40 Filed 09/21/17 Page 33 of 33 PageID 329