United States District Court, D. South Dakota, Western Division
MICHAEL KATON, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR C.K., K.K., AND T.K.; AND SARA KATON, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
WOLLMANN UNITED STATES MAGISTRATE JUDGE.
a personal injury and personal property action brought by
Plaintiffs Michael Katon, Sara Katon, and their three minor
children against the United States pursuant to the Federal
Tort Claims Act. Defendant filed a Motion to Compel (Doc. 51)
requesting production of certain information from
Plaintiffs' expert neuropsychologist, and a Motion to
Stay Deadlines (Doc. 65). Defendant then filed a Motion to
Exclude Plaintiffs' Expert (Doc. 72), a Motion for
Permission to Conduct an Independent Medical Examination and
Extension of Deadlines (Doc. 78), a Motion to Conduct
Discovery and Extend Discovery Deadlines (Doc. 83), and a
Motion for Leave to Supplement the Record Regarding its
Request for IME (Doc. 86). United States District Court Judge
Jeffrey L. Viken, Chief Judge, referred Defendant's
Motions to this magistrate judge for determination. (Docs.
54, 74, 80, 89).
allege that an employee of the United States Postal Service
negligently drove a postal truck into Michael Katon's
vehicle, causing injuries to occupants Sara Katon, C.K.,
K.K., and T.K. (Doc. 5). Plaintiffs retained an expert
neuropsychologist, Dr. Rodney Swenson, to testify on the
neurological injuries that Sara Katon suffered. Dr. Swenson
examined Ms. Katon on August 20, 2015 and performed a variety
of tests. (Doc. 64-1). After some dispute, Plaintiffs
provided Defendant with the raw data that Dr. Swenson
obtained in his examination. (See doc. 44; doc. 42
at p. 5 (stating that Plaintiffs provided Defendant with all
raw data by July 9, 2017.)). Plaintiffs also filed Dr.
Swenson's evaluation summary, which includes a list of
the tests Dr. Swenson performed on Ms. Katon. (Doc. 64-1).
The Motion to Compel
Motion to Compel, Defendant requests production of the test
items, test instructions and administration procedures,
scoring procedures, and test norms that Dr. Swenson used to
convert the raw scores to standard or scaled scores. (Doc. 52
at p. 2). Defendant requests sufficient detail to locate the
materials if they have been published; if not published,
Defendant asks for copies of the pertinent pages setting
forth the requested information. (Doc. 53-8). Defendant's
expert, Dr. David Faust, explains that Dr. Swenson's
procedures and norms are critical to interpreting the raw
data received. (Doc. 53-13 at p. 3-4). Dr. Faust states that
normative data are used to convert raw scores into standard
scores, but depending on the normative samples and procedure
used, the same raw data could yield different results.
(Id. at p. 7). Therefore, in order to properly
assess Dr. Swenson's methodology, Dr. Faust requires
disclosure of the procedures and norms Dr. Swenson used when
converting the raw data. (Id.). Defendant further
requests a stay of the current scheduling order to allow time
to review the information produced and conduct Dr.
Swenson's deposition. (Docs. 65 and 66 at p. 3).
resist the Motion to Compel, stating that Dr. Swenson's
report identifies the tests administered; the standard test
manuals contain the procedures, and thus should be accessible
to Dr. Faust; and Dr. Faust may determine for himself the
scoring of raw data and run the results through any normative
database of his choosing. (Doc. 53-8). Plaintiffs also state
that the requested information may be obtained by deposing
Dr. Swenson. (Doc. 61 at p. 11).
The Motion to Exclude
alternative measure of relief, Defendant requests exclusion
of Dr. Swenson because Plaintiffs have failed to establish by
a preponderance of the evidence that his testimony is
admissible. (Doc. 72). Defendant claims that as long as
Plaintiffs fail to identify the testing procedures and norms
Dr. Swenson utilized, his opinions are not reliable and must
be excluded. (Doc. 73 at p. 5).
The Motions for Permission to Conduct IME, Conduct
Discovery and Extend Deadlines, and Supplement the
Record Regarding Request for IME
Defendant requests permission to conduct an independent
medical examination (“IME”) of both Ms. Katon and
K.K., and asks for an additional extension of deadlines in
order to do so. (Doc. 78). Defendant wishes to conduct
psychiatric IMEs, rather than neuropsychological
examinations, to evaluate any psychiatric issues that may
have preexisted the accident. (Doc. 82). Defendant
acknowledges that the court's current scheduling order
does not allow further continuances or extensions. (Doc. 79
at p. 2). However, Defendant states that good cause exists
because the disputes over the raw data and the pending Motion
to Compel have delayed discovery, requiring Defendant to
pursue alternative defenses. (Docs. 82, 93). In its Motion to
Supplement the Record (Doc. 86), Defendant identifies the
experts who would conduct the IMEs and proposes dates for the
additionally requests an extension to conduct further
discovery pertaining to K.K.'s functioning in school
before and after the accident. Defendant identifies eleven
individuals it wishes to depose, and states that good cause
exists for the reasons identified in its previous motions.
(Docs. 83 and 84 at p. 5-6). Plaintiffs resist both motions.
Defendant's Motions to Compel, Exclude Expert, ...