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Katon v. United States

United States District Court, D. South Dakota, Western Division

June 21, 2018




         This is 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).


         Plaintiffs 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).

         A. The Motion to Compel

         In its 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).

         Plaintiffs 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).

         B. The Motion to Exclude

         As an 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).

         C. The Motions for Permission to Conduct IME, Conduct Discovery and Extend Deadlines, and Supplement the Record Regarding Request for IME

         Finally, 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 examinations.

         Defendant 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.


         I. Defendant's Motions to Compel, Exclude Expert, ...

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