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Murphy v. Kmart Corp.

June 9, 2009


The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge



This matter is before the court pursuant to plaintiff Doug Murphy's motion to designate his treating psychologist as an expert witness after the deadline for expert witness disclosure has passed. [Docket 169]. Defendant Kmart Corporation objects to the motion. [Docket 172]. Mr. Murphy has represented to the court that he has made a good-faith effort to resolve this discovery dispute without the court's intervention. [Docket 169]. Mr. Murphy's motion was referred to this magistrate judge for resolution pursuant to the district court's order dated May 26, 2009. [Docket 175].


On November 5, 2007, Mr. Murphy filed suit against Kmart Corporation ("Kmart"), alleging one count of age discrimination and one count of intentional infliction of emotional distress stemming from the loss of his employment as a Kmart store manager. The court incorporates by reference the factual history of this case as set forth in greater detail in the court's previous order dated December 27, 2008. [Docket 132]. The following recitation includes facts relevant to the instant motion. Additional facts will be included throughout this opinion as needed.

The district court's first scheduling order required Mr. Murphy to identify his expert witnesses by June 1, 2008, and to disclose expert reports by July 1, 2008, and required Kmart to identify its experts by August 1, 2008, and to disclose expert reports by September 2, 2008. [Docket 21]. The court also ordered all discovery to be completed by October 1, 2008. Id. On August 1, 2008, Mr. Murphy filed a motion to extend his discovery deadlines, particularly the deadlines pertaining to expert discovery, arguing that additional discovery was needed in order to determine if an employment expert/economist was required. [Docket 26]. Also on August 1, 2008, Kmart filed a motion to extend, in relevant part, its deadline for disclosing expert reports. [Docket 28]. On August 14, 2008, the parties filed a joint stipulation that, in relevant part, allowed Kmart to disclose its expert reports by December 1, 2008, extended fact discovery for both parties until November 1, 2008, and extended the deadline for deposing Kmart's experts to December 15, 2008. [Docket 33]. The parties were unable to resolve Mr. Murphy's motion to extend its expert deadlines. Id.

The district court adopted the parties' stipulation, see Docket 35, and granted Mr. Murphy's motion to extend his expert deadlines, see Docket 46. The district court ordered Mr. Murphy to disclose his experts by September 30, 2008, and to provide expert reports by October 7, 2008. [Docket 46]. Kmart's deadline for deposing Mr. Murphy's experts was extended to October 21, 2008. Id.

On September 25, 2008, Mr. Murphy designated Donald Frankenfeld as his sole expert witness. [Docket 53]. Mr. Murphy indicated that Mr. Frankenfeld would testify as to Mr. Murphy's loss of wages and loss of future earnings, including salary, benefits, and pension. Id. On September 26, 2008, Mr. Murphy supplemented his expert designation by indicating that Mr. Frankenfeld might also testify as to the "relative performance of Doug Murphy and/or his store's performance in relation to other stores and peers." [Docket 55]. On October 8, 2008, Kmart designated Dr. George Langelett as its economic expert. [Docket 60].

On October 24, 2008, Mr. Murphy moved the district court for a 90-day extension of the November 1, 2008, discovery deadline. [Docket 80]. On November 17, 2008, Kmart moved the district court for an extension of the December 1, 2008, deadline for dispositive motions. [Docket 108]. The district court granted both motions, setting the discovery deadline at February 17, 2009, and the motions deadline at March 17, 2009. [Dockets 109 & 111].

On February 4, 2009, Mr. Murphy moved the district court for a 90-day extension of the February 17, 2009, discovery deadline. [Docket 147]. The district court granted Mr. Murphy's motion, setting the new discovery deadline at June 17, 2009, and the motions deadline for July 17, 2009. [Docket 165].

On April 9, 2009, Mr. Murphy moved the court to be allowed to supplement his expert witness disclosure by designating Dr. Dewey Ertz as an expert. [Docket 169]. Dr. Ertz was Mr. Murphy's treating psychologist and was designated as a fact witness to testify at trial. [Docket 170]. Mr. Murphy argues that he was substantially justified in not identifying Dr. Ertz as an expert before the deadline for doing so had passed because Mr. Murphy was not being treated by Dr. Ertz at the time and did not intend to resume treatment. Id. Mr. Murphy also argues that his failure to identify Dr. Ertz as an expert was harmless because of the following: (1) Kmart was in possession of Dr. Ertz's treatment notes and testing data; (2) Kmart knew that Dr. Ertz would testify at trial as a treating psychologist; (3) Kmart has already deposed Dr. Ertz regarding his opinions of this case; and (4) Dr. Ertz' expert testimony at trial would be the same as his deposition testimony. Id. Finally, Mr. Murphy argues that treating physicians are not subject to the expert disclosure requirement. Id.

Kmart objects to Mr. Murphy's motion, arguing that Mr. Murphy has not shown good cause for failing to identify Dr. Ertz as an expert witness. [Docket 172]. Kmart also argues that Dr. Ertz' role as a treating psychologist does not automatically qualify him to be an expert witness. Id. Kmart lastly argues that it would be prejudiced by Dr. Ertz' designation as an expert witness because (1) Kmart developed its litigation strategy based, in part, on its expectation that Dr. Ertz would testify at trial as a treating psychologist and not as an expert; and (2) Kmart did not have access to Dr. Ertz' expert report while deposing Dr. Ertz and still has not received Dr. Ertz' expert report. Id.


A. Whether Dr. Ertz May Be Designated an Expert Witness

The expert disclosure requirements are set forth in Federal Rule of Civil Procedure 26(a)(2), which provides as follows:

(2) Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.

(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's ...

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