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2001 MTWCC 17A
WCC No. 2000-0249
Case summary: In an earlier Order the Court ordered that an expert vocational witness for claimant be stricken for claimant's failure to comply with the Court's Scheduling Order requiring disclosure not only of the expert's name but the substance and basis for the expert's opinions, and also limited a physician's opinion testimony to that which was disclosed in his records. Claimant moved for reconsideration.
Held: Reconsideration granted. Upon reviewing case law, the Court has determined that the remedy was too harsh under the circumstances. The trial is vacated to allow for proper disclosure.
¶1 On April 20, 2001, this Court entered an Order Striking Witnesses. The Order precluded vocational testimony by the claimant's vocational expert and limited testimony of a treating physician to those opinions expressed by the physician in records provided to the respondent. I entered the Order on account of the claimant's failure to disclose expert opinions, as well as the facts and grounds upon which the opinions are based. That disclosure was required by the Court's Scheduling Order.
¶2 Claimant moves for reconsideration and requests oral argument. The request for oral argument is denied since I do not believe argument would further clarify the matter. The motion for reconsideration, however, is granted.
¶3 I begin my discussion of the motion by pointing out and underlining my expectation that counsel appearing in cases before this Court will cooperate in preparing cases for trial. I expect full and honest communication between counsel. The rules of this Court, and the requirements set forth in its scheduling order are intended to provide a fair playing field. They are not intended to provide parties with pistols or swords for dueling. On the other hand, I expect compliance with the rules.
¶4 Counsel in this case are not in synch with the Court. As evidenced by the motion and briefs regarding summary judgment, and the objections in another case in which they dueled, Dale Aaby v. ASARCO, WCC. No. 2001-0101, neither counsel seems able to meet the deadlines and requirements of the Court's rules. Morever, it is apparent that counsel are not communicating, rather they are relying on every technical advantage the rules and scheduling orders can provide them. Claimant's reliance on my rulings in Aaby in support of his arguments for reconsideration, only exemplifies the confrontational nature of counsels' relationship and their inability to comply with Court rules. I would like to take both counsel to the woodshed, but higher Court decisions regarding corporal punishment prohibit me from doing so.(1)
¶5 In my Order Striking Witnesses, I determined that claimant failed to provide essential information concerning his expert witnesses. Disclosure of expert witness' opinions is required by the Court's scheduling orders; it is automatic, it does not depend on discovery requests. The requirement of automatic disclosure is based upon several factors. First, the amount of time between the filing of a petition and the time of trial is short, ordinarily 75 days. Prompt disclosure of expert opinions is therefore important to trial preparation. Second, expert testimony in cases coming before the Court is common and frequent. Many of the issues presented for decision involve either expert vocational testimony or expert medical opinion. The automatic disclosure requirement assures that information regarding expert witness testimony is timely disclosed.
¶6 Claimant's attorney argued in response to the respondent's original motion to exclude witnesses that it is his experience that attorneys do not strictly comply with the Court's disclosure requirements. In his original response to the motion to strike expert witnesses, he argued:
(Petitioner's Response to Motion to Strike Expert Testimony at 1.) I find the argument disingenuous. In Aaby, which Mr. Grosfield cites as authority contradicting my original ruling striking his witnesses, he sought to exclude a physician's record because it was not listed in ASARCO's disclosure. I overruled the objection, but only because the record had in fact been provided to Mr. Grosfield prior to the disclosure date and the disclosure listed the doctor as a witness, thus he had ample notice of the information intended to be offered at trial. His technical objection in that case, as well as his motion to strike ASARCO's first motion for summary judgment because it was three days late, shows he is intent upon invoking every technicality of the Court's rules and orders if they work to his advantage. He can hardly complain that the other side replies in kind when he fails to adhere to the Court's rules and scheduling order.
¶7 However, upon reviewing case law, I conclude that my prior order was too harsh. My conclusion is based upon my review of the following cases: Montana Power Co. v. Wax, 244 Mont. 108, 796 P.2d 565 (1990); Scott v. E.I. Dupont De Nemours & Co., 240 Mont. 282, 783 P.2d 938 (1989); and Sikorski v. Olin, 174 Mont. 107, 568 P.2d 571 (1977). These cases deal with deficiencies in answers to interrogatories requesting information about testimony of witnesses. While the present case does not involve an interrogatory, the order for disclosure of expert witness information is the equivalent to an automatic, Court propounded interrogatory, therefore, I find the discussion in these cases apropos.
¶8 In Montana Power, which was a condemnation action,(2) the Supreme Court upheld a district court order excluding testimony concerning property values because of defendants' failure to provide information concerning the witnesses' basis for valuation. The defendants had been served with interrogatories asking them to identify experts and to state the "nature and subject matter of the[ir] advice, opinion, study . . . ." 244 Mont. at 111, 796 P.2d at 566-67. The defendants identified two witnesses who "will render opinions as to the highest and best use of the subject property, the value of the property and the diminution of value of the properties not actually taken by eminent domain." Id. At trial Montana Power objected to the opinions because the "basis for the opinions was not set forth in the answers . . . ." 244 Mont. 15 112, 796 P.2d at 565. The trial judge sustained the objection and the Supreme Court affirmed, finding that the trial judge acted within his discretion:
Id. Montana Power plainly supports this Court's original order excluding expert witnesses.
¶9 However, in Scott the Supreme Court affirmed a trial judges' refusal to exclude expert witness testimony even though the answers to expert witness interrogatories were deficient. That case involved a strict liability claim based on inhalation of paint fumes. The plaintiff propounded an interrogatory "asking the names of experts who would testify at trial, the opinions of the experts, and the factual bases for the opinions." 240 Mont. at 286, 783 P.2d at 941. The answer identified an expert -- Bruce J. Held -- in industrial hygiene and respirators. The answer further indicated the expert would testify about the effectiveness of a particular respirator [presumably worn by the plaintiff] and "the requirements of [a] proper respirator program required of employer." Id. No further information was provided. Plaintiff moved to exclude Held's testimony. The trial judge denied the motion and was affirmed on appeal:
240 Mont. at 286-87, 783 P.2d at 941.
¶10 Sikorski did not involve an expert witness interrogatory. The action was brought by a sales representative of the defendant for breach of contract. The interrogatory in question concerned the parties' contractual relationship. The plaintiff was allowed to amend his answer to the interrogatory on the day of trial. Recitation of the specific facts of the case is unnecessary here. What is important to the issue at hand is the Supreme Court's determination that the defendant was not prejudiced by the amendment since it was already aware of the nature of the testimony that plaintiff intended to offer at trial and did not request a continuance. Its discussion is instructive:
174 Mont. at 110-11, 568 P.2d at 573.
¶11 The lessons I draw from these three decisions are as follows:
¶12 After considering the above guidelines, I conclude that I wrongly ruled that the expert testimony proposed by claimant should be excluded. The facts leading me to this conclusion are as follows:
¶13 The claimant's motion for reconsideration is granted. The Court's prior Order Striking Witnesses is rescinded.
¶14 The trial setting of May 22, 2001, is vacated. This matter will be reset for the next regular Helena term of Court.
¶15 Counsel are ordered to appear for a conference with the Court in Missoula at 1:00 p.m., Thursday, May 17, 2001, at the offices of Martin-Lake Court Reporters, 111 North Higgins, Suite #500, Missoula, Montana, to discuss further proceedings in this case.
DATED in Helena, Montana, this 8th day of May, 2001.
c: Mr. Norman H. Grosfield
1. This is meant humorously. I would not even footnote this but for the fact that many statements are construed literally, without regard to context, and without humor.
2. The utility sought an easement.
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