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D'Souza v. Washington Metropolitan Area Transit Authority

United States District Court, D. Maryland

February 8, 2017

LUCY D'SOUZA Plaintiff


          Paula Xinis United States District Judge

         Pending is Defendant Washington Metropolitan Area Transit Authority's (“WMATA”) Motion to Reconsider this Court's Letter Order dated January 9, 2017 (ECF No. 60) denying Defendant's eleventh hour request to designate life-care expert, Trudy Koslow, well beyond the expert designation deadline that this Court has set - and reset - on several occasions. ECF No. 62. Defendant further moves for the Court to reconsider its Order denying Defendant's request for a protective order limiting the deposition of Defendant's witnesses designated pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Plaintiff opposes the Motion to Reconsider. ECF No. 68. For the reasons that follow, Defendant's Motion is DENIED.

         A. Procedural History Related to Expert Designations

         This case suffers from a long and convoluted pretrial history centered on expert discovery. Because Defendant takes umbrage at this Court's January 9, 2017 Order denying designation of its life care planner well beyond the deadline for Defendant's expert designations, this history bears comprehensive review.

         On November 23, 2013, Plaintiff, a now 76 year-old woman, was involved in a car accident while a passenger on one of WMATA's MetroAccess motor vehicles. As a result, she allegedly suffered serious traumatic brain damage, loss of consciousness, broken bones, respiratory failure and hearing loss. ECF No. 62-1. Plaintiff originally filed her negligence action against Defendant in the Circuit Court for Prince George's County on April 22, 2015. ECF No. 2. Defendant removed the case to this Court on July 6, 2016. ECF No. 1.

         On August 18, 2015, the Court issued the first scheduling order in this case, originally setting Plaintiff's expert disclosures under Rule 26(a)(2) of the Federal Rules of Civil Procedure at January 29, 2016 and Defendant's at February 18, 2016. ECF No. 16. That same day, Defendant moved to extend time regarding expert disclosures, representing to the Court that during an earlier Rule 16 teleconference, Defendant noted that “the damages aspects of [Plaintiff's] case are comprehensive and complicated.” ECF No. 17. In light of Plaintiff's damages profile - which was already known to Defendant - Defendant requested that its expert disclosures be due on April 29, 2016. ECF No. 17-1 at 2-3. Defendant also emphasized in its request that while the Court at the status conference “seemed amenable to the deadlines requested, ” the Court nonetheless would schedule a status conference in January of 2016 “in order to maintain control.” ECF No. 17-1 at 2. The Court then granted Defendant's motion to allow Defendant sufficient time to designate experts responsive to Plaintiff's “comprehensive and complicated” damages profile. ECF No. 18.

         On January 28, 2016, Plaintiff then requested that all expert designations be extended one month to accommodate voluminous medical records that Plaintiff had yet to receive. ECF No. 20. Defendant did not object to that motion and did not ask for additional time beyond the proposed defense expert disclosure deadline of May 31, 2016, even in light of Plaintiff's representations regarding outstanding medical records. The Court granted this second request. ECF No. 21.

         Plaintiff then requested, and Defendant did not oppose, an additional month extension on expert disclosures to accommodate Plaintiff's expert neurologist who had suddenly lost his brother, sister-in-law and nephew in a car accident. ECF No. 23. This request put Plaintiff's expert disclosures due on March 30, 2016 and Defendant's on June 30, 2016. Once again, Defendant did not raise any objection or seek additional time beyond a June 30, 2016 deadline. ECF Nos. 23 and 24.

         Notably, this was Plaintiff's final request for any extensions of expert deadlines. By all accounts, Plaintiff then complied with her discovery obligations. She disclosed all medical records by early 2016 and met her expert disclosure deadlines, designating all experts and disclosing all reports by March 30, 2016. ECF No. 25 (“On March 30, 2016, Plaintiff specifically disclosed Pedro Steven Macedo, M.D. (neurologist); Peter Sorman, Ph.D (psychology/neuropsychologist); Lynne Trautwein, R.N. (nurse life care plan); Thomas Borzilleri, Ph.D. (economist)”). Accordingly, by March 30, 2016, almost one year ago, Defendant had Plaintiff's life care expert report - a comprehensive fourteen page analysis of Plaintiff's future medical needs - and all underlying support and documentation.[1]

         Thereafter, Defendant has filed several requests to amplify and amend expert discovery, much of which has been granted despite significant delay to the orderly progression of this case. In particular, this Court granted Defendant's request for Plaintiff to submit to a medical examination pursuant to Rule 35 of the Federal Rules of Civil Procedure and the continuance of Defendant's expert disclosures by ninety days, until August 29, 2016. ECF Nos. 25, 28.[2] This Court then fielded further disputes between the parties regarding the conditions set for the Rule 35 examination, most notably whether Plaintiff would be permitted either to videotape the examination or have an independent observer present. ECF Nos. 29, 30. This Court held a status conference on this matter, after which the parties submitted an “Agreed Order” setting the conditions of the Rule 35 examination. ECF Nos. 33, 34. This Order not only resolved the outstanding disputed issues regarding the Rule 35 examination, but extended discovery deadlines (of which Defendant's expert disclosures were next in the queue) by an additional 30 days. ECF No. 35, 36. Now Defendant's expert disclosures became due September 28, 2016.

         Of special import is that the Court ordered the Rule 35 examiner, Dr. Richard M. Restak, to disclose his Rule 35 report “within 15 days of the examination.” ECF No. 35. This the doctor did not do. In fact, even though Dr. Restak met with Plaintiff on September 8, 2016, no report was authored because Dr. Restak claimed - and Defendant endorsed - that he could not complete the report without Plaintiff submitting to an evaluation by an otolaryngologist, Dr. Ashkan Monfared, M.D. at the George Washington University-Medical Faculty Associates. Dr. Restak also claimed to need a records review by a neuroradiologist and the deposition of Christine D'Souza, Plaintiff's daughter, before he could author a report. ECF No. 37. This Court ordered once again that Dr. Restak comply with this Court's original order and author a report based on his medical examination of Plaintiff by no later than October 14, 2016. ECF No. 41.

         Notably, once Dr. Restak complied, his report highlighted that his “inability” to write a report was better characterized as a choice. Despite not yet having the above stated “requirements, ” Dr. Restak opined in his report that “it's certain from the review of the records that Ms. D'Souza sustained multiple traumatic injuries in the November 26, 2013 accident, which included a brain injury as well as multiple fractures in the cervical spine and left zygomatic arch, and the left clavicle.” ECF No. 62-4 at 5 (emphasis added). Indeed, what became plain from Dr. Restak's report is that he wished to understand more about Plaintiff's hearing loss, and so requested that Ms. D'Souza see Dr. Monfared. Id.

         Accordingly, despite the fact that granting Defendant's request for Ms. D'Souza to submit to audiology testing would further delay discovery, delay the resolution of her case, and compel that she submit to another examination, the Court ordered such testing be conducted by no later than November 7, 2016 and within a ten mile radius of Plaintiff's residence. The Court issued this order only after yet another extensive status conference with the parties on October 24, 2016 and over Plaintiff's vigorous objection. ECF Nos. 39-44.

         Specifically, Plaintiff noted that Plaintiff's post-accident hearing loss is undisputed. ECF No. 39 at 1. Plaintiff also noted that Defendant claimed a need to rebut Plaintiff's “alleged cortical deafness, ” even though Plaintiff had never claimed to suffer from “cortical deafness.” Id. Finally, Plaintiff underscored that she had already undergone relevant testing related to hearing loss during her treatment, the results of which the Defendant and Dr. Restak ...

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