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Carpenter v. Trammel

United States District Court, W.D. North Carolina, Asheville Division

May 13, 2019

RACHEL CARPENTER, as Administratrix of the Estate of PEDRO CRUZ-AMADO, Plaintiff,
v.
WILSON SCOTT TRAMMEL, et al., Defendants.

          MEMORANDUM OF DECISION AND ORDER

          MARTIN REIDINGER UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on the Defendants' Motion to Exclude Peter Breggin, M.D., from Testifying as Plaintiff's Expert [Doc. 30] and the Plaintiff's Motion to Supplement Expert Report [Doc. 42].

         I. PROCEDURAL BACKGROUND

         This is an excessive force case arising from a Cleveland County Sheriff's Deputy, Defendant W. Scott Trammel (“Defendant Trammel”), shooting and killing Pedro Cruz-Amado (“Amado”) in his front yard on June 21, 2016. The Plaintiff, Rachel Carpenter, as the Administratrix of the Estate of Pedro Cruz-Amado (“Plaintiff”), brought this action on January 25, 2018. [Doc. 1].

         On February 16, 2018, the Defendants filed their Answer. [Doc. 4]. On March 12, 2018, the Pretrial Order and Case Management Plan (“Pretrial Order”) was entered in this case, which among other things set the deadlines for the service of the parties' expert reports. [Doc. 9]. The original deadlines for the Plaintiff's and Defendant's expert reports were July 1, 2018, and August 1, 2018, respectively. [Id.]. The Pretrial Order set the motions deadline in this case as December 1, 2018. [Id.]. On March 15, 2018, Plaintiff served on the Defendants Trammel and Cleveland County her First Requests for Production of Documents. [Docs. 21-1 and 21-3]. Outside of requests for records related to any “psychological evaluations” that were a part of Defendant Trammel's personnel records, the Plaintiff made no request for any medical or pharmacy records of Defendant Trammel in this request. [See id.].

         On June 22, 2018, the Court granted the Plaintiff's motion to extend the deadline to file her expert reports, thereby extending the Plaintiff's deadline to August 1, 2018 and the Defendant's deadline to September 1, 2018. [Doc. 14]. On July 31, 2018, the Court granted another motion by the Plaintiff to extend the deadline to file her expert reports to September 1, 2018 and October 1, 2018. [Doc. 20]. On August 20, 2018, after learning through other discovery of possible prescription medication use by Defendant Trammel at the time of the shooting, the Plaintiff served a Second Request for Production on Defendant Trammel, requesting his medical records from the ten years prior to the shooting to the date of the request. [Doc. 21-5 at 7]. Defendant Trammel objected to this request. [Doc. 21-6].

         On August 31, 2018, the Plaintiff served her expert witness disclosures on Defendant, which included an expert report by Peter Breggin, M.D. (the “Report”), a psychiatrist from Ithaca, New York, dated August 24, 2018. [Doc. 31 at 1]. On September 28, 2018, the Plaintiff moved the Court to compel production of Trammel's medical and pharmacy records that had been previously requested. [Doc. 21]. The Magistrate Judge granted the Plaintiff's motion to compel but limited the production to the period from January 1, 2013 “through the present.” [Doc. 41].

         On November 30, 2018, the Defendants filed a motion for partial judgment [Doc. 28] and a motion to exclude Dr. Breggin from testifying at trial [Doc. 30]. On March 18, 2019, the day before the hearing on the Defendants' motions, the Plaintiff filed a motion to file a supplemental expert report by Dr. Breggin. [Doc. 42]. These motions were heard by the Court on March 19, 2019.

         At the hearing, the Court advised the parties that it would reserve its ruling on the Defendants' motion to exclude Dr. Breggin and allow the parties to re-brief the issue, either as a motion in limine or a Daubert motion. Accordingly, the Defendants' Motion to Exclude Peter Breggin, M.D., from Testifying as Plaintiff's Expert [Doc. 30] is hereby denied without prejudice. Thus, the only motion that remains for disposition in the Plaintiff's motion to supplement Dr. Breggin's expert report.

         II. DISCUSSION

         The Pretrial Order in this case, as modified by Court order, provided that reports for Plaintiff's retained experts under Rule 26(a)(2) of the Federal Rules of Civil Procedure were due by September 1, 2018. [Docs. 9, 20]. The Pretrial Order further provided that “[s]upplementations under Rule 26(e) shall be ongoing throughout these proceedings.” [Doc. 9 at 4].

         Rule 26(a)(2) requires the parties to disclose any experts witnesses it intends to use at trial to the other parties. Fed.R.Civ.P. 26(a)(2)(A). Rule 26(a)(2)(B) requires as follows:

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 ...

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