Seyfang v. Dreamhome Restoration LLC

          ORDER ON DEFENDANT'S MOTION FOR LEAVE TO SUPPLEMENT ITS EXPERT REPORT OF DR. HAL S. WORTZEL [DOC 39]

          MARK L. CARMAN UNITED STATES MAGISTRATE JUDGE.

         This matter comes before this Court upon Defendant's Motion for Leave to Supplement its Expert Report of Dr. Hal. S. Wortzel [Doc 39]. This motion involves a disagreement between the parties as to the timing and designation of a medical expert who performs an independent medical exam ("IME"). Defendant has elected to subject Plaintiff J.H.S. (hereinafter "Plaintiff) to a medical examination by Hal S. Wortzel, M.D. Plaintiff has consented to the medical exam taking place, but asserts that Defendant may not designate Dr. Wortzel's testimony arising from the examination as the period for designation of experts under the Order on Initial Pretrial Conference ("Pretrial Order") [Doc 27] has expired. Plaintiff further argues that there is not "good cause" to extend the time for the designation of experts as set forth in the Pretrial Order, Defendant counters that the Pretrial Order does not require the IME report to be included in the expert designation and if it does, there is good cause to amend the schedule. The parties consulted with Judge Carman in accordance with this Court's Amended Administrative General Order 2012-14, but were unable to resolve this issue.

         Plaintiff alleges that he was exposed to dangerous levels of carbon monoxide on the morning of October 20, 2014 as a result of the negligent installation of a roof vent cap by Defendant during the replacement of the roof on his home in Worland, Wyoming. Plaintiff alleges he sustained permanent brain injuries as a result of the carbon monoxide poisoning. Plaintiff has designated Carol Anderson, Ph.D., a neuropsychologist, to provide testimony regarding the nature and scope of Plaintiffs injuries. Dr. Anderson examined Plaintiff in September 2017 and drafted her report on January 11, 2018, which was then disclosed with Plaintiffs expert designation on February 21, 2018. Plaintiff provided Defendant with a short letter from Dr. Anderson on October 6, 2017, apparently in regards to settlement discussions. As to Plaintiff, Dr. Anderson wrote:

Neuropsychological assessment results indicate that Johnny's greatest area of dysfunction is in the domain of psychological distress (severe depressive symptoms and severe anxiety symptoms). However, neuropsychological testing also suggests "borderline" (variable; mild) memory impairments, and problems with inattention, impulsivity, and mental flexibility. Given Johnny's pre-exposure history, it is my opinion that the carbon monoxide exposure caused an exacerbation of symptoms, leading to greater functional impairments than he would have otherwise experienced.

Doc. 40-1 Page 2.

         Dr. Anderson did not provide any additional information regarding Plaintiff in her October 6^th letter.

         Upon receipt of Dr. Anderson's full report with the expert designation of February 21, 2018, Defendant determined that it needed to obtain an IME of Plaintiff. The parties have agreed that Dr. Wortzel will conduct an IME of Plaintiff on April 6, 2018. Nevertheless, Plaintiff objects to any designation of testimony by Dr. Wortzel as the date for designation of expert testimony has passed.

         Law and Discussion

         An initial pretrial conference was held in this matter on September 20, 2017, and the Pretrial Order was issued [Doc 27]. That order set the following relevant dates:

• January 31, 2018: Plaintiff s designation of expert testimony.

• March 2, 2018: Defendant's designation of expert testimony

• April 6, 2018: "ALL DISCOVERY, including fact discovery, all IME's and expert witness depositions must be complete by this date." (emphasis in original)

• May 4, 2018: Deadline for filing of Dispositive Motions

• May 4, 2018: Deadline for filing other pretrial motions, including Daube ...