Opinion
Civil Action No. 2:07cv274-KS-MTP.
March 24, 2009
ORDER
THIS MATTER is before the court on a Motion to Strike Plaintiffs' Untimely and Previously Undisclosed Medical Record and Opinion Contained Therein or, in the Alternative, Leave to Depose Doctor at Plaintiffs' Costs [101] [103] filed by Defendant. The basis for the motion is Plaintiffs' November 5, 2008 production to Defendant of a narrative report by Dr. Rocco Barbieri, Plaintiff Joseph Walker's primary treating physician, of a March 4, 2008 office visit. Defendant contends that Plaintiffs withheld this report for months, despite it being responsive to numerous discovery requests, and only produced it after the expiration of the discovery deadline.
The record reveals that counsel for Plaintiffs made numerous requests to Dr. Barbieri to obtain supplemental or updated medical records for Mr. Walker, including specific requests to obtain the dictation report of the March 4, 2008 office visit. Plaintiffs' counsel did not receive the dictation report until October 27, 2008, and they produced it to Defendant shortly thereafter. Based on these facts, the court does not find that striking the report is warranted. However, the court shall allow Defendant to depose Dr. Barbieri, within the next thirty (30) days, at its own cost.
IT IS, THEREFORE, ORDERED and ADJUDGED that Defendant's Motion to Strike Plaintiffs' Untimely and Previously Undisclosed Medical Record and Opinion Contained Therein or, in the Alternative, Leave to Depose Doctor at Plaintiffs' Costs [101] [103] is granted in part and denied in part. The medical records in question shall not be stricken. Defendant may depose Dr. Barbieri, within the next thirty (30) days, at its own cost.
SO ORDERED.