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Martin v. City of Albuquerque

United States District Court, D. New Mexico

May 14, 2019

JOHN MARTIN, RHONDA BREWER, DAVID MCCOY, MARY O'GRADY, and MARISSA ELYSE SANCHEZ, Plaintiffs,
v.
CITY OF ALBUQUERQUE, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE.

         This matter is before the Court on the City of Albuquerque's Motion to Exclude “Rebuttal” Expert Testimony of Dr. David Ragland, filed on March 21, 2019. (Doc. 77.) For the reasons explained in this Opinion, the Court will deny the motion.

         I. Background

         Plaintiffs have sued the City to challenge the constitutionality of Ordinance O-17-51, now codified at Albuquerque Code of Ordinances § 8-2-7-2 (the Ordinance). (See Docs. 1; 3-A.) The City purportedly enacted the Ordinance as part of its “compelling interest in adopting laws that help promote safety” for pedestrians on roadways and medians. (See Doc. 3-A at 3.[1]) The Ordinance “focus[es] on pedestrian activities that take place in areas that were not specifically designed for use by pedestrians or that do not otherwise include adequate safety accommodations for pedestrian-vehicle interactions” and prohibits activities such as standing on, using, occupying, congregating on, or interacting with occupants of motor vehicles on roadways, exit or entrance ramps to roadways, or medians that are “not suitable for pedestrian use . . . .” (Id. at 3-4.)

         On April 12, 2018, the parties submitted a Joint Status Report and Provisional Discovery Plan (the JSR). (Doc. 26.) In the JSR, the parties proposed two deadlines relevant to this motion: “Initial [expert] reports from Plaintiffs and Defendant by September 4, 2018. Rebuttal [expert] reports from Plaintiffs and Defendant by October 2, 2018.” (Id. at 11.) United States Magistrate Judge Karen B. Molzen entered an Order Setting Case Management Deadlines and Discovery Parameters on April 18, 2018. (Doc. 30.) Pursuant to the parties' requested deadlines, Judge Molzen set a deadline of September 4, 2018, for both Plaintiffs' and Defendant's Rule 26(a)(2) initial expert disclosures; set a deadline of October 2, 2018, for any rebuttal expert reports; and added an additional deadline of October 18, 2018, for the termination date of expert discovery. (Id. at 2.) Neither party objected to these deadlines. In a footnote to the initial disclosure deadline, the Court specified that the “[p]arties must disclose the names of all expert witnesses, including treating physicians, the subject matter on which the experts will present evidence, and a summary of the facts and opinions to which the experts are expected to testify by this date.” (Id. at 2 n.2.)

         The Court has since granted three extensions to the discovery deadlines. On July 25, 2018, the parties filed a Joint Motion to Extend and asked the Court to move the initial expert disclosure deadline to November 5, 2018, the rebuttal expert report deadline to December 2, 2018, and the termination date for expert discovery to December 17, 2018. (Doc. 43 at 2.) Judge Molzen granted the parties' request. (See Doc. 44.) On September 11, 2018, the parties filed a second Joint Motion to Extend and asked the Court to move the initial expert disclosure deadline to January 7, 2019 (Plaintiffs) and January 9, 2019 (Defendant), [2] the rebuttal expert report deadline to February 4, 2019 (both parties), and the termination date for expert discovery to February 18, 2019. (Doc. 54 at 2.) Judge Molzen granted the motion. (Doc. 55.) On November 16, 2018, the City sought a third, unopposed, extension of certain deadlines. (See Doc. 56.) The City (with no objection from Plaintiffs) asked the Court to move the initial expert disclosure deadline to February 7, 2019 (Plaintiffs), and February 11, 2019 (Defendant), the rebuttal expert report deadline to March 4, 2019 (both parties), and the termination date for expert discovery to March 21, 2019. (Id. at 2.) Again, Judge Molzen extended the dates to those requested in the City's motion. (Doc. 58.) These are the current, operative deadlines.

         Neither party identified any anticipated expert witnesses in the JSR.[3] (See Doc. 26 at 6, 9.) Nor did either party identify any expert witnesses in their June 2018 responses to discovery requests (at least those identified in the briefing on this motion). (See Docs. 77 at 6 (citing Doc. 78 ¶¶ 5, 7 (internal citations omitted)); 80 at 11 (citing Doc. 81 ¶¶ 15-16).)

         Plaintiffs' outside counsel, Mr. Kevin P. Martin, has been involved in five other lawsuits around the country that have challenged similar municipal ordinances. (Doc. 81 ¶ 2.) Neither the plaintiffs nor the municipal defendants in these other lawsuits disclosed an expert witness to support meeting their burden of proof. (Id. ¶ 3.) Mr. Martin suspected that the City might disclose an expert in this case, because of “the attention the City had paid to the sequencing of expert disclosures in negotiating the JSR, [and] also” because the City commissioned (and the Ordinance referenced) a study conducted by the University of New Mexico “analyzing the ten most dangerous intersections in Albuquerque.” (See Id. ¶ 12; see also Doc. 3-A at 2-3.) Thus, Plaintiffs identified a potential rebuttal expert, David Ragland, Ph.D., MPH. (See Doc. 81 ¶ 13.) Plaintiffs assert that they initially “sought out Dr. Ragland based on his expertise in traffic-safety and transportation issues” in May 2018. (Doc. 80 at 5 n.5.) In June and August 2018, the City produced over 5, 000 pages of crash reports from the Albuquerque Police Department. (Id. at 5.) To help sort through this information, “Plaintiffs engaged Dr. Ragland and his research assistants at UC Berkeley to sort through the reports, enlisting their help in categorizing the reports and identifying any arguably relevant reports for use during depositions and at trial.” (Id. (citing Doc. 81 ¶ 19).) Plaintiffs have paid Dr. Ragland $18, 000 for his and his research assistants' work. (Doc. 81 ¶ 19.)

         Plaintiffs did not provide initial expert disclosures on February 7, 2019. (See Doc. 77 at 6.) “On February 11, 2019, the City disclosed Melissa Lozoya, P.E.[, ] as its Rule 26(a)(2)(C) expert.” (Id. at 5 (citing Doc. 77-A).) “Ms. Lozoya is a registered Professional Civil Engineer and currently works for the City in the Department of Municipal Development [(DMD)] as the Deputy Director.” (Docs. 77-A at 1;[4] 77-A-A.) On March 4, 2019, Plaintiffs disclosed Dr. Ragland as their rebuttal expert. (See Doc. 77 at 6; see also Doc. 77-B.) The City argues that Plaintiffs should have disclosed Dr. Ragland as an affirmative expert according to the initial expert disclosure deadline, as his report does not truly rebut Ms. Lozoya's opinions. (See Doc. 77.)

         II. Analysis

         The City argues that the Court should exclude Dr. Ragland's testimony and report for two reasons: (1) because “[t]he Court's scheduling orders did not contemplate disclosure of rebuttal experts for the first time on the rebuttal reports deadline[;]” and (2) “because it was untimely disclosed without sufficient justification and” prejudices the City. (Id. at 9, 10.)

         A. The parties helped fashion and approved the deadlines in the scheduling order.

         The City first argues that under the Court's scheduling order and subsequent deadline extensions, Plaintiffs were required to disclose Dr. Ragland on February 7, 2019-the initial expert disclosure deadline. (See Id. at 9-11.) The City emphasizes a footnote in the scheduling order, which states that “[p]arties must disclose the names of all expert witnesses” by the initial expert disclosure deadline. (Id. at 2 (citing Doc. 30 at 2 n.2), 10.) The City argues that this inclusive language means the Court must have intended for the parties to also disclose the names of rebuttal experts, not just affirmative experts, by the initial expert disclosure deadline. (See Id. at 2-3, 10- 11.) Yet, in that same footnote, the Court states that “[e]xperts who are retained or specifically employed to provide expert testimony must also submit an expert report by this date.” (See Doc. 30 at 2 n.2.) Clearly this footnote does not refer to both affirmative and rebuttal witnesses, as such a statement would be incorrect if it referred to both types of expert witnesses, because there is a separate deadline for rebuttal expert reports. (See Id. at 2.)

         The City next contends that because this District's Local Rules require 14 days' notice for a deposition, the two weeks remaining between the rebuttal report deadline and the termination date for expert discovery was not enough for the City “to react to a ‘rebuttal' expert disclosed for the first time on the rebuttal report deadline.” (Id. at 10-11 (citing D.N.M. LR-Civ. 30.1).) The Court finds this argument unpersuasive, as the parties knew of the short turn-around on this deadline since the first scheduling order was filed in April 2018. (See Doc. 30.) Moreover, the parties tacitly agreed to this deadline when they filed three motions to extend and failed to request more time between the rebuttal report deadline and the termination of expert discovery. See Rothenberg v. Standard Ins. Co., No. 11-cv-01906-WYD-KMT, 2012 ...


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