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Kerner v. Terminix International

September 29, 2006


The opinion of the court was delivered by: Judge Sargus


As noted in the Court's Status Conference Order filed on September 22, 2006, the Court met with counsel for the parties to discuss in some detail competing motions to compel and for a protective order. The order describes resolutions which were reached with respect to most of those issues, establishes new dates for the provision of discovery responses, and extends the discovery cutoff date to November 30, 2006.

One issue discussed but not resolved at the conference was whether Terminix would be permitted to identify a new expert witness. Terminix had raised the issue in its motion to compel, arguing that the plaintiffs' delay in or refusal to provide certain information, particularly medical records and documentation supporting the opinions of two of plaintiffs' expert witnesses, Drs. Bernad and Smalldon, have prevented Terminix from obtaining a meaningful opinion on the medical issues in this case. The Kerners responded to that request in their opposition to the motion to compel. The Court has now been advised that the parties do not intend to file additional briefs on the issue. Consequently, the Court will determine the issue based upon the arguments already presented.

It is not necessary to recite in detail the procedural history of this case, but a brief recitation of that history will give a flavor to the way in which the parties have, for the most part, worked cooperatively to extend deadlines when needed. It will also illustrate that extensions have been granted liberally up to this point.

After the initial pretrial conference, the Court established dates for disclosing expert witnesses. Originally, those dates were May 6, 2005 for the Kerners and July 3, 2005 for Terminix. The Court also set the matter for a prompt settlement conference. Through a series of agreed motions and orders, the expert witness disclosure dates were extended by more than eight months. Several settlement week conferences were vacated, all on grounds that the parties were still engaging in discovery and needed more discovery in order to evaluate the case for settlement purposes, and the Court did not conduct a settlement conference until 2006. Further, the discovery cutoff date has been extended a number of times by agreement and is currently November 30, 2006. Again, each of the extensions of that date was premised upon the parties' representations that they were conducting discovery in a diligent fashion but needed more time to do so. Until the filing of the most recent motion to compel, however, the parties had not presented any specific discovery issues to the Court for resolution.

That changed on August 11, 2006 when Terminix filed its motion to strike, to compel, and to identify an additional expert witness. Terminix contended in that motion that the parties had been unable to agree upon a protocol or protective order that would allow the production of many medical, educational, employment-related and credentialing records relating to Dr. Kerner. The motion also raised an issue about whether the Kerners' experts had disclosed all of the documents which they had relied upon in reaching their opinions and whether Terminix had been provided with copies of those documents as required by Fed. R. Civ. P. 26(a)(2). At the discovery conference, the Court recognized that the Kerners were justified in raising some concerns about the extent of the medical information requested and about the potentially injurious effect that contact with Dr. Kerner's employer and various credentialing agencies might have on his ability to continue to practice medicine. At the same time, the Court recognized that Terminix was entitled to relatively broad discovery on issues relating to Dr. Kerner's health and his employment prospects because his expert witnesses had raised these issues and because he was making substantial claims based upon his alleged injuries from exposure to Terminix's pesticides, including the possibility that he could lose millions of dollars in future income.

In opposing Terminix's request to identify a new expert witness (presumably a medical expert), the Kerners place much emphasis upon the fact that, prior to May 22, 2006, Terminix had not engaged in any significant discovery and had not raised any issues concerning the incompleteness of the Kerners' Rule 26(a)(2) expert disclosures. Citing to the undersigned's recent opinion in Surbella v. Foley, Case No. 2:05-cv-758 (S.D. Ohio August 10, 2006), the Kerners argued that Terminix simply was not diligent in pursuing this discovery and as a result is unable to demonstrate the requisite due diligence which must accompany a request to extend a case management deadline set at an initial pretrial conference and incorporated into a court order. Terminix, on the other hand, contends that it would not be in the position of needing an extension of the date had the Kerners simply complied with their obligations to produce all relevant information under Rule 26(a)(2) and had they not resisted so strenuously the production of medical records relating to Dr. Kerner's medical history.

This case is unlike the Surbella case in many respects. There, the Court denied a request to extend a date to disclose expert witnesses primarily because the Court did not believe that the arguments advanced by the plaintiffs justifying their delay in identifying an expert witness were, in fact, related to the question of whether they could have identified such a witness in a timely fashion. There, the Court rejected the notion that the information which plaintiffs claim they needed should have been disclosed to them as part of a voluntary disclosure under Rule 26(a)(1) and noted that had they diligently pursued discovery after the initial Rule 26(f) meeting, they could have obtained the information in a timely fashion and met the original expert witness deadline. Here, by contrast, there is some merit to Terminix's position that it was not provided with all of the information required to be disclosed under Rule 26(a)(2) and that without that information it could not have prepared a meaningful expert report on medical issues. Further, the parties appear to have engaged in a long-standing dispute over the extent to which Terminix was entitled to discover details about Dr. Kerner's medical history. Although Terminix may bear some of the blame for the delay in getting the Court involved in resolving this issue, it is also clear that some of the delay was engendered by substantial resistence on the part of the Kerners. Whether that resistence was justified or not is not the issue here. The issue is whether Terminix exercised the requisite degree of diligence in attempting to obtain this information. Although the Court concludes that Terminix could have been more diligent, and specifically rejects the notion that the parties had an implicit agreement to put off significant discovery in order to permit the settlement process to go forward, the Court is persuaded that the totality of the circumstances support Terminix's request to identify a medical expert and provide a report after it obtains the medical information discussed at the discovery conference and detailed in the Court's September 22, 2006 order.

Operating under the assumption that most of the information needed for Terminix to supply a medical opinion will be produced by the end of September, and further operating under the assumption that Terminix has already contacted such an expert and provided that expert with background information and copies of the Kerners' expert reports, the Court establishes November 1, 2006, as the date by which Terminix must disclose any additional experts and provide complete reports from all of its experts. The Court recognizes that this date is only a month prior to the discovery cut-off date. The Court encourages the parties to make every effort to complete discovery by that date. If that cannot be done, the Court is hopeful that any remaining discovery can be accomplished in such a way that the current trial date of February 26, 2007 will not be affected. Any requests to postpone the trial date must, however, be directed to the trial judge, the Honorable Edmund A. Sargus, Jr.

Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.

This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.

Terence P. Kemp United States Magistrate Judge


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