United States District Court, M.D. Pennsylvania
MARTIN C. CARLSON, Magistrate Judge.
I. Statement of Facts and of The Case
The plaintiff, Franklin Styer, instituted this workplace discrimination action on April 2, 2013, by filing a complaint, through counsel, alleging, inter alia, that his former employer Frito-Lay, Inc. ("Frito Lay"), violated Title VII of the Civil Rights Act of 1964 by creating and maintaining a hostile work environment, engaged in retaliatory harassment of the plaintiff and discriminated against the plaintiff based on race, all of which Styer claims resulted in his involuntary resignation.
This case has been marked by contentious periods of discovery. In this regard, the initial discovery schedule in this litigation was set by Judge Kane on July 10, 2013. (Doc. 21.) That discovery order directed that expert witness discovery be conducted by November 2013. (Id.)
Following the entry of this initial discovery and case management order, discovery deadlines in this case had to be extended on a number of occasions. In many instances, the root cause of these discovery delays were allegations that the plaintiff has been dilatory in discovery. For example, in November 2013, the defendant was compelled to move to extend the discovery deadlines in this case, reciting that on September 13, 2013, defendant served plaintiff with Interrogatories and Request for Production of Documents. Responses to these Interrogatories and Requests for Production were due on or about October 16, 2013, but were not received until six weeks later on November 20, 2013. (Doc. 26.) These delinquent responses revealed for the first time that the plaintiff was receiving Social Security benefits, a new factual matter which compelled an extension of the discovery deadlines.
In January 2014, we were then called to address additional, dilatory discovery by the plaintiff, a failure to timely produce documents which had long been sought by the defendant. (Doc. 30.) This tardiness compelled another conference with counsel, (Doc. 31.), and yet another order revising the discovery schedule in this case. (Doc. 32.) In connection with this discovery conference the court also endeavored to explain for counsel in clear and precise terms that there could be no further unwarranted delays in disclosure of discoverable information, advising plaintiff's counsel that "In light of this representation, [that all documents in the plaintiff's possession had been produced and provided to defense counsel] it is anticipated that there will be no further disclosures... by the plaintiff, except in those instances in which newly discovered matters come to the attention of counsel." (Id.)
The revised discovery deadline set by the court in this matter was Monday, May 12, 2014. (Id.) Notably, though, none of these orders extending fact discovery modified the expert witness disclosure deadline set by Judge Kane of November 2013. Nor did the plaintiff ever seek to extend any expert discovery schedule. Moreover, at no time did the plaintiff's counsel indicate that he may have other belated expert discovery disclosures that he intended to make in the course of discovery.
Notwithstanding these prior conferences, admonitions and orders, fact witness discovery was also conducted by the plaintiff in a dilatory fashion, with plaintiff's counsel neglecting to schedule or conduct fact witness depositions until the eve of the expiration of discovery, on May 1, 2014. This dilatory conduct was all the more puzzling because it became evident that defense counsel had diligently attempted to arrange the timely scheduling of these deposition throughout 2014. (Doc. 36.) Moreover, this episode of tardiness came to the court's attention in what was almost an ironic fashion, with the plaintiff, who had been the architect of these delays, moving for sanctions against the defendant, who had diligently strived to schedule these depositions for many months. (Compare Doc. 35 with 36.)
Yet, even as the plaintiff was seeking to compel last minute fact witness discovery and sanctions from the defendant on May 8, 2014, plaintiff's counsel did not disclose the identify of a putative expert witness that the plaintiff intended to rely upon at trial, Dr. Christine Ebong, the plaintiff's treating psychiatrist. The failure to make this disclosure was both puzzling and prejudicial to the defendants.
The failure to make this disclosure was puzzling because Dr. Ebong had treated the plaintiff since 2012, and, therefore, was known to the plaintiff prior to the initiation of this lawsuit, yet her identity as a potential expert witness had not been previously disclosed. This disclosure had not occurred at the outset of the litigation. It had not taken place within the November 2013 deadline prescribed by Judge Kane. It had not occurred in connection with either of the two prior extensions of discovery that the defendant was compelled to seek due to the plaintiff's's past dilatory behavior. It had not taken place after the plaintiff was admonished in January 2014 that: "In light of this representation, [that all documents in the plaintiff's possession had been produced and provided to defense counsel] it is anticipated that there will be no further disclosures... by the plaintiff, except in those instances in which newly discovered matters come to the attention of counsel." (Doc. 32.)
Instead, that disclosure was only made to the defendant at 3:04 p.m. on May 8, 2014, on the Friday afternoon before the Monday discovery deadline expired. (Doc. 37-1.) Thus, in the face of deadlines, admonitions, and orders which consistently called for prompt disclosures, plaintiff's counsel waited until virtually the last conceivable moment to reveal a fact known to the plaintiff for two years; namely, that the plaintiff had a treating psychiatrist who would testify as a expert witness to his injuries, and to their causation.
It is against this background that the defendant has moved to strike this expert witness designation. (Doc. 37.) This motion is fully briefed by the parties, (Docs. 38, 41, and 43.), and is, therefore, ripe for resolution. For the reasons set forth below, the motion will be granted in part, as follows: Dr. Ebong will be permitted to testify as a fact witness to her treatment of the plaintiff, but due to the dilatory course of discovery and expert witness designation in this case, the designation of Dr. Ebong as a expert witness will be stricken.
Rulings regarding the proper scope of discovery are matters consigned to the court's discretion and judgment. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). Thus, a court's decisions regarding the conduct of discovery will be disturbed only upon a showing of an abuse of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). This far-reaching ...