Curtis v. TransCor America, LLC, CASE NUMBER 10 C 4570

Curtis

v.TransCor America, LLC

CASE NUMBER 10 C 4570

United States District Court Northern District of Illinois

Dated: April 13, 2012

Name of Assigned Judge

or Magistrate Judge

James F. Holderman

Sitting Judge if Other

than Assigned Judge

DOCKET ENTRY TEXT

For the reasons provided in the Statement section of this order, Plaintiff's "Motion to Strike Testimony and Report of Witness Steven E. Pitt, D.O." [160] is denied, but Plaintiff is granted leave to depose Dr. Pitt by May 15, 2012.

[×] [ For further details see text below.]

STATEMENT

Before the court is Plaintiff's "Motion to Strike Testimony and Report of Witness Steven E. Pitt, D.O." (Dkt. No. 160. ("Mot. to Strike").) For the reasons stated herein, the motion is denied, but Plaintiff is given leave to depose Dr. Pitt by May 15, 2012.

Dr. Pitt is a psychiatrist and expert for Defendant TransCor America LLC ("TransCor") who plans to opine about the mental status and emotional distress experienced by Plaintiff Brett Lee Curtis ("Plaintiff") over the death of his father, Joseph Curtis. (Dkt. No. 164 ("Def.'s Resp. to Mot. to Strike") Ex. 3).) Plaintiff's wrongful death suit against TransCor alleges that his father died of heatstroke in the back of a TransCor van while being transported from a federal prison in Leavenworth, Kansas to one in Terre Haute, Indiana. Plaintiff seeks damages for loss of his father's companionship and mental suffering over his death.

Plaintiff moves to strike Dr. Pitt's testimony on the grounds that TransCor's disclosures of his identity and his expert report were untimely. In its Jan. 20, 2011 scheduling order, this court ordered TransCor to provide its expert discovery under Fed. R. Civ. P. 26(a)(2) by Oct. 15, 2011. (Dkt. No. 41.) That rule provides that in the case of a retained expert, like Dr. Pitt, the party must disclose the identity of the witness it may use at trial, and a written report containing a complete statement of his opinions and the underlying basis for those opinions. Fed. R. Civ. P. 26(a)(2)(A),(B).

There is no dispute that TransCor disclosed Dr. Pitt's identity as a potential expert witness via U.S. Mail on Oct. 17, 2011. Because Oct. 15, 2011 fell on a Saturday, TransCor argues that based on Fed. R. Civ. P. 6(a)(1)(C), it had until had until Monday, Oct. 17, 2011 to make its disclosures. (Def's Resp. to Mot. to Strike 3.) However, the provisions in Rule 6 for computing time do not apply when the court has set a deadline by a date certain, as the court did here. See Faust v. Anderson, 52 F. Supp. 2d 930, 934-935 (N.D. Ill. 1999). Nonetheless, the court is not inclined to strike Dr. Pitt's testimony on this basis.

Along with its Oct. 17, 2011 disclosures, TransCor included an explanation that Dr. Pitt's report was not complete because of an on-going dispute over TransCor's request to conduct a Fed. R. Civ. P. 35 psychiatric examination of Plaintiff. (Def's Resp. to Mot. to Strike 1-2, Ex. 1.) Court filings show that

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TransCor initially requested such an examination on Sept. 14, 2011, but the parties disagreed as to whether such an examination was appropriate under the facts of this case. (Dkt. No. 78, Exs. 1-3.) TransCor did not bring a formal motion for a Rule 35 examination until Oct. 26, 2011. (Dkt. No. 77.) That motion was denied by Magistrate Judge Schenkier on Nov. 2, 2011. (Dkt. No. 90.)

Dr. Pitt's expert report was not disclosed to Plaintiff until Jan. 17, 2012. The discovery deadline was Jan. 15, 2012, but that was a Sunday, and the following Monday was Martin Luther King Jr. Day. Given this, defense counsel once again erroneously believed TransCor had until Tuesday, Jan. 17, 2012 to complete discovery. Regardless, TransCor contends that it repeatedly explained that it would not be able to produce Dr. Pitt's report until it received certain discovery responses from Plaintiff and third parties. (Def.'s Resp. to Mot. to Strike 4.) At one point, TransCor sought to amend the case schedule, and it explained at that time that Dr. Pitt would be able to complete his report within three weeks of Plaintiff's deposition. (See Dkt. No. 94, at 8 n.4.) That deposition ultimately was held on Dec. 12, 2011. The court granted TransCor's motion to amend the case schedule in part. (Dkt. No. 100.)

Although it appears that on-going disputes over discovery were at least partially to blame, TransCor did not comply with this court's scheduling order when it submitted Dr. Pitt's report to Plaintiff after the discovery deadline had closed. Under Fed. R. Civ. P. 37(c)(1), this court must...