IN THE WORKERS' COMPENSATION
COURT OF THE STATE OF MONTANA
2001 MTWCC 17
WCC No. 2000-0249
ORDER STRIKING WITNESSES
Summary of case:
Petitioner previously moved, successfully, to strike respondents motion
for summary judgment as untimely (it was three days late). Respondent
now moves to prohibit expert testimony by a physician and two vocational
experts on the ground that petitioner's disclosure did not comply with
the Court's scheduling order.
The motion is granted. The doctor may, however, testify as to opinions
set forth in medical records timely disclosed to respondent.
Order. Failure to comply with expert disclosure requirements
in the Scheduling Order will result in preclusion of the expert testimony.
Experts: Disclosure. Failure to comply with expert disclosure
requirements in the Scheduling Order will result in preclusion of the
¶1 On January 15, 2001, the
respondent in this case served and filed a Motion for Summary Ruling.
Petitioner moved to strike the motion because it was three days late
under the Court's scheduling order. Applying the deadlines fixed in
the scheduling order, I struck the motion. (Order Denying Motion for
Summary Ruling (January 24, 2001.))
¶2 Now the shoe is on the
other foot. Respondent moves to preclude expert opinions of three of
petitioner's experts because the experts and their opinions were not
"sufficiently or timely disclosed." (Motion to Strike Expert Opinions
of Dr. Patrick Walton and Petitioner's Vocational Expert at 1.)
¶3 The original deadlines
for expert disclosure are long past, however, on February 1, 2001, petitioner
moved to vacate the trial. One of the reasons advanced in support of
the motion was, "Petitioner's counsel wishes to add an expert witness
and believes it important that petitioner be allowed to present testimony
in regard to issues pending before the Court." (Request to Vacate and
Reset Trial Date at 1.) There was no opposition to the motion, therefore
the Court granted it and issued a new Order Resetting Scheduling Order
setting the following deadlines and requirements with respect to identification
of expert witnesses:
2) IDENTIFICATION OF WITNESSES:
On or before March 30, 2001, the parties shall exchange a list
a) the names of all witnesses,
including expert witnesses, not already identified in the pleadings,
along with a summary of the subject matter of their testimony;
b) the names of all expert
witnesses, the subject matter on which the expert is expected to testify,
the substance of the facts and opinions to which the expert is expected
to testify, and a summary of the grounds for each of the expert's
(Order Resetting Scheduling
Order (February 1, 2001).)
¶4 On March 26, 2001, claimant
filed a list of exhibits and witnesses. However, he failed to provide
the information required in 2 (b). The information furnished with respect
to Dr. Walton and the petitioner's vocational experts was as follows:
Dr. Patrick Walton - Matters
regarding treatment of Petitioner and opinion concerning ability to
- Matters regarding his on-site job analysis.
Kathy Kleinkopf - Matters
regarding Petitioner's future potential earning capacity in alternative
(Petitioner's List of Witnesses
and Exhibits (March 26, 2001).) On its face, the disclosure does not comply
with the Scheduling Order.
¶5 Petitioner does not argue
that his disclosure complied with the Court's Order, rather he argues
that had respondent requested additional information he would have provided
it. Petitioner's Response To Motion to Strike Expert Testimony. He also
asserts that counsel could have obtained the information through interrogatories
and depositions. He offers to "supplement" his disclosure.
¶6 I am unsympathetic to petitioner's
arguments. Where counsel play hardball, the Court has no choice but to
enforce the letter of its rules and orders. Petitioner successfully invoked
the deadlines in the scheduling order to obtain this Court's Order denying
respondent's initial motion for summary ruling as untimely. There is an
old saying that he who lives by the sword dies by the sword.
¶7 The disclosure concerning
opinions of the vocational experts is inadequate, therefore they are barred
from expressing opinions should they testify. Dr. Walton was apparently
claimant's treating physician and his records should have been disclosed
pursuant to paragraph (3) of the scheduling order and Rule 24.5.317(1)
of the Workers' Compensation Court's Rules. To the extent that such records
were timely disclosed and contain opinions made during the course of treatment,
the disclosure is adequate and the doctor may testify. However, he may
not testify as to opinions not set forth in medical records which were
not timely disclosed.
¶8 Based on the foregoing discussion,
both Kathy Kleinkopf and Mark Schwager are prohibited from giving expert
opinion testimony in this case. Dr. Walton's opinions shall be limited
to those expressed in records timely furnished to the respondent.
DATED in Helena, Montana,
this 20th day of April, 2001.
c: Mr. Norman H. Grosfield
Mr. Todd A. Hammer