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Desmond Phipps v. Sean D. Adams

July 30, 2012

DESMOND PHIPPS, PLAINTIFF,
v.
SEAN D. ADAMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Wilkerson, Magistrate Judge:

ORDER

Before the Court are Defendants' Motion to Quash Deposition Notice (Doc. 31), and Plaintiff's First Motion for Extension of Time to Complete Discovery (Doc. 36) and First Motion to Quash Deposition (Doc. 39). For the reasons stated below, Defendants' Motion to Quash Deposition Notice (Doc. 31) is GRANTED. Plaintiff's First Motion for Extension of Time to Complete Discovery (Doc. 36) is DENIED. Plaintiff's First Motion to Quash Deposition (Doc. 39) is GRANTED. Defendants are GRANTED LEAVE to reissue a trial subpoena to Vonage America, Inc.

BACKGROUND

On February 25, 2011, Plaintiff filed a complaint in this 42 U.S.C. § 1983 civil rights action against the Village of Cahokia, Illinois, and various police officers of that village, for unconstitutional use of excessive force. Plaintiff claims specifically that police struck him in the mouth, causing extensive damage.*fn1

On January 10, 2012, this Court issued an Amended Scheduling Order (Doc. 24), which established the discovery cutoff date as May 1, 2012.

Plaintiff has previously identified Dr. Robert Willis, a prosthodontist,*fn2 as a witness who would testify to the extent and monetary value of plaintiff's injuries. On March 9, 2012, Defendant took Dr. Willis's deposition. On March 23, 2012, Plaintiff took Dr. Willis's deposition for use at trial in lieu of his live testimony.*fn3 The gist of Dr. Willis' testimony reveals that he met with Plaintiff on only one occasion, in August 2011, for a preliminary consultation. Dr. Willis never received Plaintiff's medical or dental history. Dr. Willis never treated or developed a treatment plan for Plaintiff. Moreover, Dr. Willis testified that his preliminary examination did not reveal any evidence of the trauma of which Plaintiff complains in this lawsuit.

After the March 23, 2012, deposition, Plaintiff indicated that he intended to return to Dr. Willis for a full examination.*fn4 At this time, Plaintiff indicated that he wanted to take a third deposition of Dr. Willis. On April 25, 2012, Plaintiff's attorney contacted Defendants to schedule a third deposition of Dr. Willis, indicating that it would occur after the discovery cutoff date, which was May 1, 2012.

MOTION TO QUASH DEPOSITION NOTICE (DOC. 31)

Defendants' filed a motion to quash deposition notice on May 25, 2012, making several complaints. First, defendants complain that the deposition notice is untimely because it notices up a deposition after the date set by the Court for the close of discovery. Second, defendants complain that the deposition notice should be quashed because Dr. Willis is a retained expert who was never disclosed and never submitted a report as required by the Fed. R. Civ. P. 26. Plaintiff responds that Dr. Willis was disclosed as a witness in Plaintiff's First Amended Responses produced January 10, 2012. Plaintiff further argues that Dr. Willis submitted his report to defendants at the March 23, 2012, deposition in the form of a 3D CAT scan generated from his computer, which were the only records Dr. Willis had at the time. Counsel for Plaintiff maintains that he contacted Defendants on April 25, 2012, before the discovery cutoff, to schedule the third deposition of Dr. Willis, but Defendants would not agree to extend the discovery deadline beyond May 1, 2012, in order to complete the deposition.

As to the issue of untimeliness, the Court agrees with Defendants that Plaintiff waited in this case until the eleventh hour before the close of discovery to determine that it needed another deposition of Dr. Willis after he conducted an additional examination of Plaintiff. The Court is not persuaded that it took Plaintiff approximately fifteen months to determine that a comprehensive dental exam was necessary to establish the nature and extent of his damages. It is true that Plaintiff attempted to set up a deposition of Dr. Willis prior to May 1, 2012, but, by his own admission, the deposition could not be completed prior to the discovery cutoff date. Furthermore, Defendants would be prejudiced by the Court finding that Plaintiff's deposition notice was timely. The defense has not retained an expert to rebut any testimony that Dr. Willis may provide that trauma is the cause of Plaintiff's dental damage.*fn5 Additionally, the dispositive motion deadline in this case was set for June 1, 2012, and defendants would not have been able to meet that deadline if forced to retain an expert to rebut Dr. Willis's expert testimony. Finally, there has been no showing of good cause to amend the scheduling order. See Fed. R. Civ. P. 16(b)(4). For these reasons, the Motion to Quash Deposition Notice (Doc. 31) is GRANTED, and the proposed deposition is ORDERED QUASHED.*fn6

MOTION TO EXTEND THE DISCOVERY DEADLINE (Doc. 36)

On June 20, 2012, Plaintiff filed this motion to extend the discovery deadline for the purposes of obtaining the deposition of Dr. Willis. Plaintiff complains again that Defendants would not agree to schedule the deposition of Dr. Willis after the May 1, 2012, discovery cutoff. Plaintiff again alleges that defendants would not be prejudiced by this extension because Dr. Willis is a treating physician who was properly disclosed to them.

Defendants object to any extension of discovery deadline in the case pointing out that Dr. Willis has been deposed twice in this case and adopting its arguments as set out in its Motion to Quash Deposition (Doc. 31). For the reasons stated above, the Court agrees with ...


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