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Steven Noffsinger v. the Valspar Corporation

January 3, 2011


The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown

Judge Robert W. Gettleman


Geraldine Soat Brown, United States Magistrate Judge

Before the court is defendants' Motion to Strike Ross S. Myerson, M.D. and Karin Pacheco, MD., MSPH as Rebuttal Expert Witnesses. [Dkt 112.] For the reasons set out below, the motion is granted in part, denied in part, and denied in part without prejudice.


Plaintiff Steven Noffsinger alleges negligence and strict products liability claims arising from his exposure to fumes emitted by Dynaprime, an industrial solvent-based coating manufactured by defendants. (Pl.'s Am. Compl. ¶¶ 1, 8, 9.) [Dkt 49.] Noffsinger, a former truck driver, alleges that he was hauling drums of Dynaprime from Illinois to California in February 2007 when a defective drum in the truck trailer began leaking and fumes infiltrated the cab of the truck. (Id. at ¶¶ 1, 23.) Noffsinger claims that he was exposed to the fumes while sleeping overnight in his cab and that the exposure has caused him ongoing respiratory problems. (Id. at ¶ 26.)

Noffsinger was ordered to serve disclosures and reports pursuant to Federal Rule of Civil Procedure 26(a)(2) by March 22, 2010. (Order, Feb. 26, 2010.) [Dkt 61.] On that date he disclosed a number of experts including Dr. James Tita, his treating physician, who has diagnosed Noffsinger with a number of respiratory problems, and Dr. Thomas Milby, a toxicologist who reviewed Noffsinger's medical records and opined that he suffers from Reactive Airways Dysfunction Syndrome (RADS)/irritant induced asthma due to his exposure to Dynaprime. (Defs.' Mot., Ex. A.) As a retained expert, Dr. Milby prepared a report pursuant to Rule 26(a)(2)(B). (Id., Ex. B).

In May 2010, defendants served disclosures and reports from Dr. Michael Greenberg, a toxicologist, and Dr. H. James Wedner, an immunologist, both of whom opined that Noffsinger does not suffer from RADS. (Id., Exs. C, D.) The deadline for rebuttal expert disclosures was ultimately set for October 19, 2010. (Order, Aug. 18, 2010.) [Dkt 108.]

On September 14, 2010, Noffsinger served a supplemental disclosure naming Dr. Karin Pacheco as a treating physician witness (Defs.' Mot., Ex. F), and on October 19, 2010, Noffsinger served a disclosure naming Dr. Pacheco as well as Dr. Ross Myerson as rebuttal experts to rebut the opinions of Drs. Wedner and Greenberg (Defs.' Mot., Ex. G).*fn1 Defendants now move to strike Drs. Pacheco and Myerson as witnesses, arguing that they are untimely and cumulative "replacement experts." (Defs.' Reply at 7.) [Dkt 121.]


I. Dr. Pacheco

Dr. Karin Pacheco is a staff physician at the National Jewish Hospital in Denver, Colorado.

(Defs.' Mot., Ex. F.) Her proposed role in this case has been ambiguous from the start, and Noffsinger's response to the present motion does not clarify it.

Dr. Pacheco's name first appeared in the record in a joint motion to extend discovery. [Dkt 103.] The motion recited that on July 25, 2010, Noffsinger had traveled to Denver to "undergo a comprehensive series of tests at National Jewish Hospital . . . under the auspices" of Dr. Pacheco, and that he "intends to continue under her care." (Id. ¶ 4.) But it further said, "Plaintiff also intends for Dr. Pacheco to prepare a Rule 26(a)(2)(B) [report] rebutting Drs. Greenberg and Wedner's opinions." (Id.) At the time the parties made their expert disclosures, Rule 26(a)(2)(A) required disclosure of any witnesses a party might use at trial to present evidence under Federal Rule of Evidence 702, 703 or 705, but only witnesses "retained or specially employed to provide expert testimony in the case" or employees whose duties regularly involved giving expert testimony were required to prepare a report. Fed. R. Civ. P. 26(a)(2) (A-B).*fn2 Thus, the motion equivocated on the question of whether Noffsinger saw Dr. Pacheco for treatment or in anticipation of her testifying as a retained expert.

In September 2010, Noffsinger disclosed Dr. Pacheco as a treating physician "pursuant to" Federal Rule of Civil Procedure 26(a)(2)(A). (Defs.' Mot., Ex. F.) But Noffsinger's disclosure also referred to Dr. Pacheco's "records and report, which have been previously produced." (Id.) A month after disclosing Dr. Pacheco as a treating doctor, Noffsinger disclosed her as a rebuttal expert, using Dr. Pacheco's "Occupational/Environmental Clinic Summary" and "Clinic Summary Follow Up" (which are attached as Exhibit I to defendants' present motion) as her expert witness report, supplemented with a list of her prior testimony and her fee schedule. (Defs.' Mot., Ex. G at 2.)

Now, in response to the present motion, Noffsigner says, "Plaintiff does not intend to call Dr. Pacheco as a rebuttal witness. Plaintiff will call her solely in his case in chief as a treating physician." (Pl.'s Resp. at 9.) [Dkt 117.] But Noffsinger also says, "Defendants have been fully aware that [Dr. Pacheco] would be disclosed as a treater and that Plaintiff also intended to disclose her as rebuttal witness." (Id. at 10.) To add to the confusion, Noffsinger states that he disclosed Dr. Pacheco as a rebuttal witness "as a formality." (Id. at 10 n. 2.)

This ambiguous history raises a number of issues regarding Dr. Pacheco's proposed testimony: whether the disclosure was timely, whether Dr. Pacheco is actually Noffsinger's treating physician, and ...

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