United States District Court, D. Maryland
Xinis United States District Judge
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.
Procedural History Related to Expert Designations
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
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.
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.
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.
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
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.
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. 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.
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.
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.
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.
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 ...