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Payne v. United States

United States District Court, D. New Mexico

July 9, 2019

RONALD T. PAYNE, SR., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          JERRY H. RITTER U.S. MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiff Ronald T. Payne, Sr.'s filing entitled “CERTIFICATE OF SERVICE Oral Argument on OMISSIONS” [Doc. 40], filed July 23, 2018. This case was referred to the undersigned Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), (b)(3), and Virginia Beach Federal Savings & Loan Association v. Wood, 901 F.2d 849 (10th Cir. 1990), to perform any legal analysis required to recommend to presiding District Judge Herrera an ultimate disposition of the case. [See Doc. 53]. The Court has reviewed the docket in this matter, and considered the United States' response brief [Doc. 44], as well as filings the Court liberally construes to be Mr. Payne's arguments in reply.[1] [See Docs. 45, 46, 47]. Having done so, the Court recommends that Mr. Payne's filing be granted in part, insofar as the Court recommends that discovery be reopened for a limited period to permit Mr. Payne one more chance to identify an expert witness and pursue discovery. Mr. Payne's request that the Court “disallow” the United States' expert report should, however, be denied without prejudice to refiling, as should his request for oral argument.

         I) BACKGROUND

         Mr. Payne filed his Complaint for Medical Malpractice and Damages on May 9, 2017, asserting medical negligence against the United States arising from his treatment by Dr. Kingsley at the Raymond G. Murphy VA Medical Center in Albuquerque, New Mexico. [See Doc. 1]. After holding a Rule 16 Scheduling Conference, then-assigned Magistrate Judge Lynch entered an Order Setting Pretrial Deadlines and Adopting Joint Status Report on August 29, 2017. [Doc. 19 (“Scheduling Order”)]. The Scheduling Order set forth the following deadlines:

- Plaintiff's Expert Disclosures due: January 2, 2018
- Defendant's Expert Disclosures due: January 31, 2018
- Termination date for discovery: February 26, 2018
- Discovery-related Motions deadline: March 19, 2018
- Pretrial Motions deadline: March 29, 2018

[Id.]. Mr. Payne missed his deadline to disclose his expert witness. However, he filed an Unopposed Motion to Extend Discovery and Motion Deadlines on January 29, 2018, which was granted by the undersigned on January 30, 2018. [See Docs. 29 (Motion), 30 (Order)]. This Order extended the discovery and pretrial motions deadlines by 60 days, to April 26, 2018, and May 29, 2018, respectively. [See Doc. 30]. However, Mr. Payne filed a letter on February 20, 2018, that changed things dramatically. [See Doc. 34].

         In response to Mr. Payne's letter, then-presiding Chief District Judge Armijo set a telephonic hearing for March 13, 2018. [See Doc. 36]. Following this hearing, Judge Armijo entered an Order staying the case until July 13, 2018, “to allow Plaintiff additional time to seek counsel and find an expert witness.” [Doc. 39]. In other words, Judge Armijo reset Mr. Payne's expert disclosure deadline. [Id.]. Judge Armijo also determined that as part of the stay the United States would not be required to answer Mr. Payne's then-pending discovery requests. [Id.]. Judge Armijo concluded her Order by stating that the Court would set a status conference if Mr. Payne was unable to secure counsel by July 13, 2018. [Id.].

         July 13, 2018, came and went, and on July 23, 2018, Mr. Payne filed the instant document. [Doc. 40]. In this filing Mr. Payne details his attempts to secure counsel and an expert. [Id., p. 2]. He also offers the equivalent of a Daubert argument for the exclusion of the United States' expert witness at trial. [Id., pp. 3-5]. Of course, with no expert witness, Mr. Payne's arguments are supported only by his own lay interpretation of his medical records and the United States' expert's report. [Id.]. Overarching Mr. Payne's arguments is a request to physically appear for a status hearing to present his case. [See id., p. 1].

         The United States' Response to Mr. Payne's filing points out that he initially missed the expert disclosure deadline, but fails to take into consideration that fact that Judge Armijo stayed this case and effectively reset Mr. Payne's expert deadline, arguing “[w]ithout an expert, Plaintiff's medical negligence claim fails to substantiate any medical negligence because the trier of fact cannot properly determine if any medical provider was negligent.” [Doc. 44, p. 2]. The United States goes on to argue that Mr. Payne's instant filing is unsupported by any expert testimony, and that, if Mr. Payne “had legal or factual issues with Dr. Leyba's expert opinions, pursuant to the Scheduling Order (Doc. 19) he had the opportunity to schedule a deposition or file an appropriate motion. [Id., pp. 2-3]. The United States

thus objects to the Plaintiff's request for oral argument because he has not complied with the initial Scheduling Order (Doc. 19) or the Order Extending Pretrial Deadlines (Doc. 30). Plaintiff has not disclosed any expert witness to identify opinions in support of his case or to challenge the defense expert's opinions. See Docs. 19 and 39. Furthermore, Plaintiff did not ask to depose Dr. Leyba, nor has he filed any motion regarding the expert's opinions until the present motion. Though this court stayed the action, ...

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