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Mary Elizabeth Jordan Flickinger et al v. Toys R Us

August 2, 2011

MARY ELIZABETH JORDAN FLICKINGER ET AL., PLAINTIFFS,
v.
TOYS R US, INC. ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Before the Court are several motions and motions in limine brought by both sides in this suit. Oral argument was held on the motions on July 28, 2011. The Court will skip the underlying factual and procedural history and will move directly to discussing each motion in turn below. The majority of these motions have already been withdrawn.

DISCUSSION

I. Flickinger's Motion to Preclude Toys R Us Employees from Testifying Live at Trial under Federal Rule of Evidence 611(a) (Doc. 192)

This motion was withdrawn.

II. Toys R Us' Motion to Compel Dr. Malloy to Produce Mrs. Flickinger's Treatment Records (Doc. 195)

This motion was withdrawn.

III. Toys R Us' Motion in Limine to Preclude Expert Report and Testimony of Dr. Kline (Doc. 208)

This motion was withdrawn.

IV. Toys R Us' Motion in Limine to Preclude Expert Report and Testimony of Dr. Malloy (Docs. 210 and 244)

Toys R Us moves to preclude Dr. Malloy's expert report and testimony because the Flickingers have just recently disclosed him as an expert witness, several months after the close of discovery and in violation of the Federal Rules of Civil Procedure. Dr. Malloy's expert report will be precluded but he will permitted to testify as a treating physician.

Under Fed. R. Civ. P. 26(a)(3)(A)(I), a party must provide to the other parties the name and address of each witness they plan to call as part of their pretrial disclosures. This disclosure must be made at least thirty days before trial, unless the court specifies otherwise. Fed. R. Civ. P. 26(a)(3)(B). Additionally, a party must disclose the name, along with the report, of any expert they intend to call. Fed. R. Civ. P. 26(a)(2). Experts must be disclosed within the time the court orders or at least ninety-days before trial. Fed. R. Civ. P. 26(a)(2)(D).

To determine whether to exclude evidence as a sanction for failure to comply with a discovery order, the Court considers the following factors: (1) the prejudice or surprise of the party against whom the excluded witnesses would have testified; (2) the ability of that party to cure the prejudice; (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case; (4) bad faith or willfulness in failing to comply with the district court's order. Klatch-Maynard v. Sugarloaf Twp., No. 3:06-cv-0845, 2011 WL 2006424, *3 (M.D.Pa. May 23, 2011) (citing Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904-05 (3d Cir. 1977), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985)).

Here, the disclosure and expert report deadline was December 15, 2010. But the Flickingers did not disclose Dr. Malloy as a witness until June 29, 2011. There was a notation to Dr. Malloy in the Mackarey and Mackarey physical therapy records previously produced by the Flickingers, but his name did not appear in any of their three prior pretrial disclosures. While Toys R Us claims that the Flickingers could not have forgotten about Mrs. Flickinger's previous treatment with Dr. Malloy and must have intentionally withheld this information, the Flickingers contend it was simply an oversight they have rectified.

Moving to the Meyers factors, the Court finds that Toys R Us would suffer prejudice if the Court allowed Dr. Malloy to testify as an expert. If these treatments were simply an oversight, as the Flickingers purport, then they missed the expert deadline, and Dr. Malloy cannot testify as an expert. Toys R Us should not have to scramble ...


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