Opinion
No. 04 Civ. 3024 (BSJ) (MHD).
July 29, 2005
MEMORANDUM ORDER
On July 12, 2005 plaintiff's attorney supplied to defendant a copy of a May 10, 2005 Workers Compensation psychiatric report prepared by a Dr. Vilor Shpitalnik. Plaintiff apparently intends to call this doctor as an expert witness at trial and to introduce the report. (See Amended Joint Pretrial Order at 14, 15). Defendants ask that plaintiff be precluded from offering either the doctor's testimony or the report at trial since this production occurred well after the conclusion of discovery and will seriously prejudice defendants. Alternatively, defendants request that discovery be reopened so that they may obtain documents from the doctor and depose him. (July 12, 2005 letter to the Court from Brian S. Sokoloff, Esq.)
By order dated May 19, 2005, we directed that all remaining discovery was to be completed by May 31, 2005. It appears that plaintiff never designated Dr. Shpitalnik as required by Fed.R.Civ.P. 26 (a) (2) (B) and did not supply a report by him. Counsel finally sent the report to plaintiff six weeks after the deadline for completion of discovery, claiming that she understood that defendant had received a copy of it at plaintiff's workers compensation hearing on May 23, 2005. (See July 12, 2005 letter to the Court from Irene Donna Thomas, Esq.).
Counsel appears to be wrong in her assumption (see second July 12, 2005 letter to the Court from Brian S. Sokoloff, Esq.), but in any event that is immaterial. Even if defendants had received the report at that time, that would not have alerted them to the plaintiff's intention to use the psychiatrist as an expert witness in this lawsuit. According to plaintiff's counsel, Dr. Shpitalnik was hired as an independent medical examiner in the worker's compensation proceeding at the request of defendants, and hence there was no reason for defendants to suspect that he was to be called as plaintiff's expert in this lawsuit. Failure to so alert them violates the explicit requirements of Rule 26 (a) (2) (B), which are intended to ensure that, during the pertinent discovery period, the party against whom such expert testimony is intended to be elicited has timely notice and may take appropriate steps in discovery to explore the bases of any expert opinions that its opponent intends to elicit at trial.
Plaintiff offers no excuse whatsoever for his failure to comply with the federal rules or the scheduling order of the court, and his violation of both has plainly prejudiced defendants, since they have been deprived of the ability to take the expert discovery that they would presumably have undertaken if given proper notice. Moreover, the only way to remedy that prejudice while still allowing plaintiff to call this witness would require evisceration of the court's scheduling order, a result for which we also see no justification. This case has been pending for an extensive amount of time, in no small part because plaintiff chose to change attorneys in midstream and then failed to comply with his discovery obligations in a number of respects. (See, e.g., Memorandum Order dated June 29, 2005). The joint pre-trial order has already been filed and the case is ready for dispositive motion or trial. In these circumstances we will not re-open discovery to suit plaintiff's unorthodox style of litigating.
CONCLUSION
For the reasons stated, plaintiff is precluded from calling Dr. Shpitalnik as an expert witness and from introducing his report at trial.