United States District Court, D. New Mexico
RONALD T. PAYNE, SR., Plaintiff,
UNITED STATES OF AMERICA, Defendant.
PROPOSED FINDINGS AND RECOMMENDED
H. RITTER U.S. MAGISTRATE JUDGE
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. [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
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].
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.].
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].
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