Opinion
C.A. No. 08C-02-397 FSS.
Submitted: April 13, 2011.
Decided: April 27, 2011.
Upon Plaintiff's Motion for "Reconsideration" — DENIED.
ORDER
1. By letter/order dated November 22, 2010, the court granted Defendant's motion for summary judgment, with prejudice.
2. Plaintiff filed a timely request for reargument, as captioned above. Based on information provided in the motion, as a matter of grace, the court set the motion aside for three months.
3. Then, the court afforded Plaintiff three weeks to:
tell the court when her new damages claim, including all expert reports, will be complete. At the same time, Plaintiff must submit a letter, or similar undertaking, from Dr. Fink, confirming that he is unconditionally prepared to testify as Plaintiff's expert."
The letter/order also warned:
Consistent with the court's October 27, 2010 clarification and warning, the standard by which the further submission will be judged is not mere "good faith." If [Plaintiff] still wants the court to grant her motion for reconsideration, she must meet all the court's terms precisely.
Finally, the letter/order provided:
If the court does not receive a completely satisfactory submission on or before April 22, 2011, it will enter a final order denying the pending motion.
And, the letter/order prohibited the Prothonotary from accepting a filing after the deadline.
4. Plaintiff responded to the March 31, 2011 letter/order by letter dated April 13, 2011. The submission did not include "a letter, or similar undertaking from Dr. Fink, confirming that he is unconditionally prepared to testify as Plaintiff's expert." Instead, Plaintiff's letter offered her assurance, based on Dr. Fink's secretary's oral assurance, that Dr. Fink would testify. That sort of hearsay from Plaintiff's previous expert, Dr. Kim, led directly to Plaintiff's not being prepared for trial last June. And, that is why the court insisted on hearing directly from Dr. Fink "on or before April 22, 2011."
5. Plaintiff also failed to assure the court unequivocally that "her damages claim, including all expert reports was complete." At best, Plaintiff's letter implied that Dr. Fink's August 13, 2010 report was "final." Dr. Fink's August 13, 2010 report, which Plaintiff received in October 2010 and on which she relies, includes recommendations for further consultations and treatments. That leaves open the possibility that Plaintiff's damage case is still open. Similarly, Dr. Fink's August 13, 2010 report leaves open the possibility that further reports might be received.
6. The court imposed successive sanctions before granting summary judgment in November 2010. It also repeatedly warned Plaintiff that "good faith" compliance with the court's orders is not enough. Again, Plaintiff has failed to scrupulously meet an order's terms. Now, the court will not try to confirm Dr. Fink's involvement and the limits of Plaintiff's damages claim.
7. Consistent with the court's earlier orders and, as provided above, Plaintiff's November 23, 2010 Motion for Reconsideration is DENIED. The November 22, 2010 letter/order granting summary judgment, with prejudice stands. This order is FINAL. This case is closed.
IT IS SO ORDERED.