United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
H. Ritter U.S. Magistrate Judge.
matter comes before the Court on Defendant Metropolitan
Property and Casualty Company's Motion for Attorneys'
Fees and Costs for the Deposition of Plaintiff's Expert
Dr. Thomas Grace and Motion Practice Related to the
Substitution (Doc. 196), filed March 27, 2018.
Having considered the parties' positions and all
pertinent authority, the Court will grant the Motion and
award fees and costs against Plaintiff's counsel.
Theresa Williamson was rear-ended on April 27, 2012, by a
third party. Plaintiff complained of spasms in her right arm
and shoulder through her neck, denying that she had ever
previously injured her shoulder and neck. After settling with
the third party's insurance company for $43, 000.00, she
turned to her own insurer, Defendant Metropolitan Property
and Casualty Company, claiming underinsured motorist
benefits. As part of the claims process, Defendant required
Plaintiff to undergo an Independent Medical Examination
(“IME”) with Dr. Douglas Slaughter.
took place on October 18, 2013. Plaintiff reported to Dr.
Slaughter that she began experiencing neck and low back pain
the day after the collision and that she had no back and neck
pain symptoms prior to it. After completing the IME, Dr.
Slaughter opined that the collision exacerbated a
pre-existing degenerative condition in Plaintiff's
cervical and lumbar spine. Dr. Slaughter further opined
“that this claimant could undergo further lumbar facet
blocks and potential radiofrequency ablation to assist in the
pain relief from her degeneration which reportedly she was
asymptomatic from prior to the motor vehicle collision. This
could also be a reasonable treatment in the cervical
spine.” Defendant subsequently paid Plaintiff $10,
000.00 for medical payments pursuant to the MedPay benefits
in its policy.
14, 2015, Plaintiff's counsel sent Defendant a letter
notifying it of the settlement of Plaintiff's third-party
claim and offering to settle her first-party underinsured
motorist claim for $207, 000.00 (the remaining policy
limits). Plaintiff based her offer, in part, on Dr.
Slaughter's IME report, reasoning that Dr.
Slaughter's recommended future medical treatment -
cervical facet blocks and lumbar facet blocks - multiplied
over Plaintiff's life expectancy, would exceed the
underinsured motorist policy limits when coupled with
Plaintiff's past medical treatment, which totaled $37,
125.00. Defendant, however, excluded future medical costs
from its calculation of Plaintiff's damages. Relying on
the fact that it had paid $10, 000.00 in MedPay benefits, and
that Plaintiff had received $43, 000.00 from the third party,
Defendant offered $1, 000.00 to settle Plaintiff's claim
underinsured motorist claim. Plaintiff disputes the
reasonableness of the offer and filed suit against Defendant
for breach of its insurance duties.
discovery, Plaintiff averred that she had no preexisting
conditions related to her cervical or lumbar spine. However,
Defendant discovered past medical records indicating that
Plaintiff had back pain and sciatica on and off for years
before the collision. Defendant submitted this additional
information to Dr. Slaughter, who authored an affidavit on
January 19, 2016. In this affidavit, Dr. Slaughter explained
that his original IME was based on information Plaintiff
provided; that she reported she had no symptoms in her back
or neck prior to the collision; and that his subsequent
review of her prior medical records suggests that Plaintiff
had a long history of prior back and neck symptoms, dating at
least to 2004. Based upon his review of this additional
information, Dr. Slaughter now believes that Plaintiff does
not need any further treatment as a result of the collision.
hired an expert, Dr. Brian M. Shelley, to rebut Dr.
Slaughter's affidavit. In his expert report, Dr. Shelley
opined that there was no evidence that Plaintiff had
continuous severe back pain and/or sciatica right before the
collision; the records indicate that her baseline pattern was
intermittent with the pain generally responsive to treatment.
That pattern, Dr. Shelley stated, contrasts with the more
severe and continuous back pain and right lower extremity
symptoms after the collision for which more intensive
treatment and pain management techniques were recommended.
litigation proceeded. The Court held a Rule 16 Scheduling
Conference on December 17, 2015, and issued a Scheduling
Order the following day. See Docs. 22 (Clerk's
Minutes), 23 (Scheduling Order). Pursuant to that
Order, Plaintiff's Rule 26(a)(2) expert disclosures were
due by February 29, 2016. Doc. 23 at 2. After
several delays, the parties completed expert discovery in
June 2016. See Doc. 93 (Order on Discovery Motions)
at 2. The parties filed and briefed several dispositive
motions over the course of 2015-2016, which were ultimately
resolved by June 2017. See Docs. 141, 142.
Thereafter, on August 22, 2017, then-presiding District Judge
Herrera set this case for trial in February 2018. See
Doc. 143. Pertinent to the instant Motion, Judge
Herrera's pretrial deadlines require the disclosure of
expert reports in accordance with Rule 26(a)(2) of the
Federal Rules of Civil Procedure (90 days prior to trial).
Doc. 143-1 at 2; Fed.R.Civ.P. 26(a)(2)(D).
Plaintiff filed an Emergency Motion to replace Dr. Shelley
with Dr. Thomas Grace as her expert witness on November 15,
2017. Doc. 145. Plaintiff's Emergency Motion was
premised on the fact that Dr. Shelley would no longer
participate in this litigation based on “his personal
animosity towards Plaintiff's counsel”.
Id. at 2. After briefing was complete, Judge Herrera
held a hearing on Plaintiff's Emergency Motion on January
9, 2018. See Doc. 156 (Clerk's Minutes). At the
hearing, Plaintiff reiterated that Dr. Shelley “refuses
to participate in any way with this litigation.”
Doc. 172 (Transcript of Hearing) at 9. Ultimately,
Judge Herrera reserved ruling on Plaintiff's Emergency
Motion. Doc. 156 at 1. She did so in order to
determine the prejudice to Defendant in light of the fact
that this case was set for trial behind a criminal matter.
Id. at 2. She indicated that if this case were to go
to trial as scheduled then Plaintiff's Emergency Motion
would likely be denied; however, if the trial were continued,
the same level of prejudice would not exist and the Emergency
Motion would likely be granted. Id. Pertinent here,
Judge Herrera noted that “there are other ways to
address the expense incurred by [Defendant].”
Id.; see also Doc. 172 at 44.
Herrera's criminal trial proceeded, and trial in this
case was continued on February 5, 2018. See Docs.
183, 184. On February 28, 2018, Judge Herrera
entered her Memorandum Opinion and Order granting
Plaintiff's Emergency Motion. Doc. 194. Because
Plaintiff had already disclosed Dr. Grace's CV and expert
report, Judge Herrera found that any prejudice to Defendant
could be cured by deposing Dr. Grace. Id. at 2.
Moreover, based on testimony at the hearing, Judge Herrera
found no bad faith on Plaintiff's part, and was
“reluctant to permit Plaintiff herself to suffer
repercussions of any lapse in judgment of her counsel,
particularly where prejudice to Defendant is minimal and can
be cured in ways less drastic than exclusion of
Plaintiff's evidence.” Id. Subsequently,
Defendant filed the instant Motion, seeking its costs and
attorney's fees incurred “in the course of securing
Dr. Grace's deposition and in litigating Plaintiff's
substitution of experts.” Doc. 196. Soon
thereafter, the case was reassigned to the undersigned to
“conduct all proceedings in this case including trial,
the entry of final judgment, and all post-trial
proceedings.” Doc. 199.
Motion relies on Rules 16(f) and 37(c) of the Federal Rules
of Civil Procedure. See Doc. 196 at 1. It argues
that sanctions are warranted under Rule 37(c)(1)(A) because
Plaintiff's expert disclosure violated Rule
26(a)(2)(D)(i), which requires expert witness disclosures at
least 90 days prior to trial. Id. at 6.
Additionally, Defendant argues that sanctions are required
under Rule 16(f) because Plaintiff's late expert
disclosure violated the Court's Scheduling Order and
caused it to incur unwarranted expenses in litigating
Plaintiff's Emergency Motion and deposing Dr. Grace.
Id. at 10. Defendant argues that Plaintiff's
late substitution is not “substantially
justified” so as to preclude sanctions under Rule 16(f)
in this case because Plaintiff's “sexually
harassing telephone language with Dr. Shelley's
administrative assistant” is what caused him to refuse
to testify on Plaintiff's behalf. See Id. at
13-14. As relief, Defendant “respectfully
requests this Court to award costs and fees incurred in the
litigation of Plaintiff's Emergency Motion, in preparing
for and taking the deposition of Dr. Thomas Grace, and the
motion practice pertaining to Plaintiff's current and
former expert, and for such other relief as this Court deems
just and proper.” Id. at 15-16.
responds with four arguments. See Doc. 197. First,
Plaintiff argues that Defendant's incurred costs and
attorney's fees are “self-inflicted wounds, ”
because Defendant has since withdrawn Dr. Slaughter as a
witness, thereby negating the need for Dr. Grace's
rebuttal testimony. Id. at 4 (“Had Plaintiff
known that Defendant was no longer calling Dr. Slaughter as a
witness, Plaintiff would not have had to incur the enormous
expense of retaining another orthopedic surgeon to refute the
anticipated testimony of Dr. Slaughter.”); see also
Doc. 214 (Pretrial Order). Second, Plaintiff argues
that, now that Defendant is no longer calling Dr. Slaughter,
Dr. Grace's testimony is now “minor, and therefore
the burden on Defendant is inconsequential.” Doc.
197 at 5. Plaintiff attempts to demonstrate this point
by pointing to a mere four questions she now intends to ask
Dr. Grace at trial. Id. at 6-7. Third, Plaintiff
argues that “Defendant insists on personally attacking
Plaintiff's counsel without justification.”
Id. at 8. Plaintiff then attempts to explain that
her counsel's statements to Dr. Shelley's
administrative assistant were mere jokes, not warranting
Defendant's accusations of sexual harassment.
Id. at 8-9. Plaintiff explains that
Contrary to this scornful accusation of sexual harassment,
here is what Mr. Mescall said to Dr. Shelley's
administrative assistant: (1) In the first conversation, Dr.
Shelley's administrative assistant was telling Mr.
Mescall about her upcoming vacation to a beach on a tropical
island, and Mr. Mescall jokingly said, “Don't send
me any photos.” (2) In a subsequent ...