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Billings v. Lowe's Home Centers, LLC

United States District Court, S.D. West Virginia

April 24, 2019

CHRISTOPHER BILLINGS, Plaintiff,
v.
LOWE’S HOME CENTERS, LLC, Defendant. Deadline Date Deadline Date

          MEMORANDUM OPINION AND ORDER

          JOHN T.. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         Pending is plaintiff’s Motion to Disclose Treating Doctor, Robert Schopf, Beyond Expert Disclosure Deadline or, Alternatively, to Extend Expert Witness Disclosure Deadline for a Treating Doctor, filed February 25, 2019. Also pending is defendant’s motion to strike plaintiff’s untimely disclosure of expert witnesses, filed March 1, 2019.[1]

         I. Background

         On September 13, 2017, plaintiff Christopher Billings, a West Virginia resident and delivery driver for Wood Plus Hardwood Flooring, LLC, was working as a vendor in defendant Lowe’s Home Centers, LLC’s (“Lowe’s) Fayetteville, West Virginia location. Compl., ECF No. 1, at ¶¶ 1, 6. Lowe’s is a limited liability company which is principally located in North Carolina. Id. ¶ 3. On that date, an employee of Lowe’s who was operating a forklift, ran over plaintiff’s left foot. Id. ¶ 9.

         The plaintiff initiated this action in this court on January 12, 2018, invoking the court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332. The plaintiff is bringing a claim for negligence against Lowe’s which arises out of the September 13, 2017 incident. Id. ¶¶ 12-16. The plaintiff is seeking, among other relief, both punitive and future damages against Lowe’s. Id. at 3-4.

         On March 26, 2018, the court entered its scheduling order, which set the following deadlines:

Deadline
Date

Amending the pleadings or joining parties

05/16/2018

Last date to serve discovery requests

11/06/2018

Opening Rule 26 expert disclosures

10/22/2018

Responsive Rule 26 expert disclosures

11/21/2018

Rebuttal Rule 26 expert disclosure

12/07/2018

Discovery completion date

12/21/2018

Dispositive motions deadline

01/10/2019

Response to dispositive motion

01/24/2019

Reply to response to dispositive motion

01/31/2019

Settlement meeting

03/13/2019

Motion in limine deadline

03/20/2019

Responses for motions in limine

03/27/2019

Proposed pretrial order to defendant

03/18/2019

Integrated pretrial order

03/25/2019

Pretrial conference

04/05/2019 11:00 AM

Proposed jury charge

04/24/2019

Final settlement conference

04/29/2019 11:00 AM

Trial

04/30/2019 9:30 AM

         On December 17, 2018 the court granted the parties’ joint motion to amend the scheduling order to permit the parties to conduct the deposition of the plaintiff’s liability expert. ECF No. 47. This order amended the schedule to the following extent:

Deadline
Date

Discovery to close

01/22/2019

Dispositive motions deadline

02/11/2019

Response to dispositive motion

02/25/2019

Reply to response to dispositive motion

03/04/2019

Settlement meeting

04/15/2019

Motion in limine deadline

04/22/2019

Responses for motions in limine

04/29/2019

Proposed pretrial order to defendant

04/17/2019

Integrated pretrial order

04/24/2019

Pretrial conference

05/03/2019 11:00 AM

Proposed jury charge

05/28/2019

Final settlement conference

06/03/2019 1:30 PM

Trial

06/04/2019 9:30 AM

         The question here is whether the court should allow the plaintiff to disclose--after the deadline for expert disclosures, after the discovery completion date, after the dispositive motions deadline and after the filing of defendant’s two motions for partial summary judgment--the medical records and report of a newly engaged physician, Dr. Robert Schopf, with respect to his recent examination and treatment of the plaintiff.

         On January 9, 2019, the plaintiff provided an amended Rule 26(a)(2) disclosure[2] which included, for the first time, Dr. Schopf. ECF No. 71-3, Ex. C, at 2. This disclosure stated that “Dr. Schopf is an orthopedic surgeon who will testify as to his treatment of the plaintiff.” Id. This amended Rule 26(a)(2) disclosure came well after the October 22, 2018 expert disclosure deadline and only thirteen days before the close of all discovery. Notably, the plaintiff never sought an extension of the expert disclosure deadline until he filed this motion on February 25, 2019.

         Having not received any information about treatment by Dr. Schopf by the close of discovery on January 22, 2019, the defendant filed, on February 11, 2019 (the dispositive motions deadline), a motion for partial summary judgment as to future damages, ECF Nos. 59, 60, as well as a motion for partial summary judgment as to punitive damages, ECF Nos. 57, 58. On that same date, Lowe’s also filed a motion in limine to exclude the testimony and report of plaintiff’s disclosed expert, Elizabeth Davis. ECF Nos. 63, 64.

         On February 14, 2019, the plaintiff served a second amended Rule 26(a)(2) disclosure, again identifying, among others, Dr. Schopf and stating that he “will testify as to his treatment of the plaintiff,” yet he did not provide any other information. ECF No. 73-2, Ex. B, at 3. On February 19, 2019, the plaintiff provided Lowe’s with the medical records of Dr. Schopf’s examination of the plaintiff that took place on February 5, 2019. See ECF No. 73-3, Ex. C.

         On February 25, 2019, plaintiff filed this motion as well as his responses to Lowe’s motion for partial summary judgment as to future damages and motion in limine to exclude the testimony of Elizabeth Davis. ECF Nos. 69, 70, 71. Attached to plaintiff’s motion and responses are the medical records and narrative report of Dr. Schopf’s treatment of the plaintiff, which “treatment” appears to be in the form of an examination that did not take place until February 5, 2019.

         In the medical records provided by Dr. Schopf, he diagnoses plaintiff with Complex Regional Pain Syndrome (“CRPS”). ECF No. 71-1, Ex. A. Dr. Schopf’s narrative report states that “[i]t is with reasonable medical certainty that Mr. Billings’ chronic pain is a result of the injury sustained on 09/13/2017 when his foot was run over by a fork lift” and indicates that the pain may be permanent. ECF No. 71-2, Ex. B.[3]The plaintiff, in his response in opposition to Lowe’s motion to strike, notes that he had “received no diagnosis of a permanent condition to a reasonable degree of medical certainty until Dr. Robert Schopf diagnosed him with [CRPS] in February of 2019.” Pl.’s Resp., ECF No. 82, at 1-2.

         Before the records and report of Dr. Schopf were provided to the defendant, the plaintiff had not provided any medical records to Lowe’s since his visit to Lucas Therapies on October 9, 2018. Lowe’s Mem., ECF No. 74, at 6 (citing ECF No. 59-13 (sealed)).

         The parties have fully briefed both the plaintiff’s motion to disclose Dr. Schopf beyond the expert disclosure deadline as well as the defendant’s motion to strike ...


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