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TRIAL COURT ABUSED DISCRETION IN DENYING ENLARGEMENT OF TIME FOR PLAINTIFF TO TAKE DEPOSITIONS OF DEFENDANT’S EXPERTS, FOLLOWING DELAYED IME’s WHERE DEFENDANT HAS HAD THE OPPORTUNITY TO DEPOSE ALL OF PLAINTIFF’S EXPERTS , Nos. 96-CV-1316 & 96-CV-1317 (D.C. Nov. 24, 1999) In this case, a hard-fought and expensive trial result was thrown out due to a denial of an enlargement to Plaintiff for further expert depositions. Plaintiff, who was rear-ended in an auto accident, claimed injuries including post-concussion syndrome, mild closed head injury with organic brain damage, soft tissue injury, chronic neck and shoulder pain, pot-traumatic stress disorder, and depression as a result of the collision, and had $50,000 in medical expenses. The primary issue at trial was damages. After a six day trial with the testimony of six medical experts for plaintiff and 3 medical experts and a vocational expert for defendant, the jury found defendant negligent but awarded plaintiff only $8,000 in damages. On appeal, the D.C. Court of Appeals vacated the judgment and remanded for further proceedings, because the trial court denied an enlargement of time for plaintiff to take depositions of any of defendant’s experts, when the defendant had had the opportunity to depose all of plaintiff’s experts. Pretrial discovery was delayed due to plaintiff’s diagnoses of an subsequent surgical and radiation treatment for cancer. In addition, discovery was delayed by disputes over Independent Medical Examinations (IME’s) of the plaintiff, which ultimately resulted in a motion to compel. After discovery closed, the trial court granted the motion, and allowed the defense two IME’s Subsequently, plaintiff sought an enlargement of discovery to depose the experts who were to examine her. The trial court ruled that no depositions outside the discovery period would be allowed, but that the defense experts would be limited in their testimony to those opinions set forth in reports to be submitted to plaintiff. In its analysis, the Court of Appeals acknowledged the importance of expert witness depositions, and recognized that the 1993 amendments to the Federal Rules of Civil Procedure permit such depositions as a matter of right. While no corresponding change has been made in the Superior Court rules, and while conceivably a trial court could limit pretrial discovery of experts to the reports alone, the problem in this case was that the limitation was applied only to the defendant’s experts. The Court of Appeals noted that the plaintiff was within her right to take the position that the IMEs be limited to what she considered a reasonable number, absent a court order. The Court also agreed that the timing of the Rule 35 motion to compel the IME’s negatively impacted the ability of discovery to move forward within the scheduled period. The Court noted the absence of any clear attribution of blame on the plaintiff for the state of affairs with respect to the delayed independent medical examinations and hence the opportunity for timely depositions. The disagreement as to the number of IMEs did not appear to involve any clear unreasonable intransigence on plaintiff’s part. The Court noted that the rules themselves recognize the special potentially intrusive nature of IME’s. In the absence of any finding of fault on the part of the plaintiff, the Court found an abuse of discretion by the trial court in denying an enlargement for plaintiff to take depositions of plaintiff’s experts when defendant had had the opportunity to depose all of plaintiff’s experts. |
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