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ORDER 

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

TERENCE D. MANNING,

Plaintiff,

v.

STATE OF WASHINGTON; WASHINGTON

STATE PATROL; Washington State Patrol

Trooper John Doe Clevenger, Jane Doe

Celvenger, and their marital community; and

Trooper Jane DuCommon, John Doe

DuCommon, and their marital community, 

Defendants.

Case No. C05-5791RJB

ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS’

FRCP 37 SUBMISSION FOR A

MOTION TO COMPEL AND

MOTION IN LIMINE STRIKING

LATE DISCLOSED WITNESSES

This matter comes before the Court on Defendants’ FRCP 37 Submission for a Motion to

Compel and Motion in Limine Striking Late Disclosed Witnesses (Dkt. 41-1). The Court has

considered the pleadings filed in support of and in opposition to the motion and the file herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

This suit stems from alleged mistreatment of plaintiff Terence D. Manning in the investigation

of an alleged misdemeanor. Dkt. 1 at 3. Mr. Manning brought suit in federal court asserting claims of

battery; excessive force; violation of the Fourth, Fifth, Eight, and Fourteenth Amendments;

negligence; and deliberate indifference. Dkt. 1.

On July 6, 2006, the Court ordered the plaintiff to submit to an independent medical

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ORDER 

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examination by Dr. Glenn Goodwin. Dkt. 27. The Court denied the plaintiff’s request to have the

examination videotaped on the basis of Dr. Goodwin’s declaration contending that videotaping

would be disruptive. Id. The examination was scheduled for dates set forth in the Court’s Order but

was cancelled. 

The defendants now move for the following relief: (1) an order compelling the plaintiff to

submit to an independent medical examination with a different doctor and an extension of discovery

to accommodate this examination, (2) exclusion of witnesses who were not timely disclosed in the

plaintiff’s initial disclosures, and (3) exclusion of expert witnesses who were not properly disclosed

because no expert report has been provided. Dkt. 41-1. The plaintiff objects to the dates for the

medical examination proposed by the defendants; requests that the examination be videotaped;

stipulates to the exclusion of witnesses disclosed August 8, 2006; requests assistance in setting

certain depositions; and moves to strike the declaration and anticipated testimony of Thomas Ovens.

Dkt. 43

II. DISCUSSION

A. INITIAL DISCLOSURES 

Initial disclosures are governed by Federal Rule 26, which provides as follows:

[A] party must, without awaiting a discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number of each individual

likely to have discoverable information that the disclosing party may use to support its

claims or defenses, unless solely for impeachment, identifying the subjects of the

information;

Fed. R. Civ. P. 26(a)(1)(A). If a party fails to make the requisite disclosures under Federal Rule

26(a), the party is generally prohibited by Federal Rule 37 from using the undisclosed information: 

A party that without substantial justification fails to disclose information required by Rule

26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is

not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or

on a motion any witness or information not so disclosed. In addition to or in lieu of this

sanction, the court, on motion and after affording an opportunity to be heard, may impose

other appropriate sanctions. In addition to requiring payment of reasonable expenses,

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ORDER 

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including attorney's fees, caused by the failure, these sanctions may include any of the actions

authorized under Rule 37(b)(2)(A), (B), and (C) and may include informing the jury of the

failure to make the disclosure.

Fed. R. Civ. P. 37(c)(1) (emphasis added). The party may avoid the consequences of nondisclosure if

it demonstrates that the failure to disclose was substantially justified or harmless.

In the present case, the initial disclosure deadline was March 2, 2006. Dkt. 3. The plaintiff

filed initial disclosures on April 26, 2006. Dkt. 14. The defendants filed a Motion in Limine to

exclude these witnesses. Dkt. 41-1. The plaintiff contends that this delay was justified by the

Stipulation and Agreed Order to Adjust FRCP 26(a)(2) Disclosure of Expert Testimony Deadline.

Dkt. 21. This extension was expressly limited to disclosures of expert testimony under Federal Rule

26(a)(2) and did not extend the deadline for initial disclosures under Federal Rule 26(a)(1). 

The plaintiff also contends that the delay is justified by “the agreement of parties disclosed in

the Joint Status Report.” Dkt. 43 at 5. The portion of the Joint Status Report, filed after the initial

disclosure deadline, to which the plaintiff apparently refers is as follows:

b. Initial disclosures are due 3/6/06. Additional time is needed for initial discovery by the

parties. Discovery may be needed with respect to the parties’ claims and damages and the

Defendant’s defenses.

d.[sic] At the present time, there should be no changes made to the limitations imposed on

discovery under Federal and Local Civil Rules. No additional limitations should be imposed.

Dkt. 10 at 5. The parties did not move for relief from the initial disclosure deadline, and this language

does not evidence an agreement between the parties to extend the deadline. Pursuant to Federal Rule

37(c)(1), the parties should be afforded an opportunity to be heard as to whether exclusion of

information contained in the plaintiff’s tardy initial disclosures, or other sanctions, should be

imposed.

B. DISCLOSURE OF WITNESSES

Disclosure of expert witnesses is governed by Federal Rule 26, which provides as follows:

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other

parties the identity of any person who may be used at trial to present evidence under Rules

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The parties refer to the doctor as “Dr. Powell.” See, e.g., Dkt. 46-2 at 2, Dkt. 43 at 4. The Court uses the

spelling provided in Dr. Powel’s declaration. Dkt. 48.

ORDER 

Page 4

702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect

to a witness who is retained or specially employed to provide expert testimony in the case or

whose duties as an employee of the party regularly involve giving expert testimony, be

accompanied by a written report prepared and signed by the witness. . . . 

(C) These disclosures shall be made at the times and in the sequence directed by the court.

Fed. R. Civ. P. 26(a)(2) (emphasis added). In this case, the deadline for disclosing expert witnesses

and expert reports was August 8, 2006. Dkt. 21. The plaintiff filed his FRCP 26(a)(2) Disclosure

with the Court on August 9, 2006. Dkt. 29. As of October 19, 2006, the defendants have not been

provided with a copy of any of the plaintiff’s experts’ reports. Dkt. 42 at 5. The plaintiff stipulates to

striking of all “medical witnesses disclosed 8/8/06.” Dkt. 43 at 4. The Court should therefore hold

that pursuant to Federal Rule 37(c)(1) and the plaintiff’s agreement, the plaintiff is not permitted to

use as evidence at a trial, at a hearing, or on a motion any medical witness in the plaintiff’s FRCP

26(a)(2) disclosure and the proffered expert witnesses from whom no expert reports were provided.

See Dkt. 29 (“Fact Medical Witnesses”), Dkt. 47 at 9 (“Expert Witnesses”).

C. MOTION TO COMPEL

On July 6, 2006, the Court ordered the plaintiff to submit to an independent medical

examination by Dr. Glenn Goodwin. Dkt. 27. The scheduled examination was cancelled, and the

defendants now seek an extension of discovery for the limited purpose of completing the plaintiff’s

medical exam. Dkt. 41-1 at 6. The defendants ask that the plaintiff be ordered to submit to an

examination by Dr. Jeffrey Powel1

 on November 21 and November 27, 2006. Dkt. 46-2 at 2. In

response, the plaintiff asks that the examination be videotaped and that the plaintiff be allowed to

depose Dr. Powel. Dkt. 43 at 4. Plaintiff’s counsel also contends that he will not be available to

accompany the plaintiff on the proposed dates. Dkt. 44 at 3. In support of the reply, the defendants

offer a declaration of Dr. Powel contending that the presence of a third party or videographer would

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ORDER 

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be disruptive. It appears that while the parties have attempted to schedule a mutually agreeable time

for Dr. Powel to conduct a medical examination, they have not specifically discussed the defendants’

proposed dates. The Court should therefore deny the motion to compel without prejudice. The

parties should meet and confer, attempt to resolve discovery and scheduling issues in good faith, and

use conference calls to chambers before filing further discovery motions.

D. EXTENSION OF DISCOVERY DEADLINE

The defendants request an extension of the discovery deadline, currently September 25, 2006,

for the limited purpose the plaintiff’s upcoming independent medical examination. Dkt. 41-1 at 6.

The defendants do not propose a specific date on which such discovery should be completed but

propose that two weeks after completion of Dr. Powel’s medical examination, Dr. Powel’s report

will be provided to the plaintiff and that the plaintiff should be afforded an opportunity to depose Dr.

Powel. The plaintiff did not respond specifically to this request but asks the Court for assistance in

setting dates for depositions, indicating the plaintiff’s agreement that discovery should be extended.

The Court should therefore extend the discovery cutoff to accommodate the plaintiff’s medical

examination. The date for such extension will be determined after the examination is scheduled.

E. REQUEST TO TAKE ADDITIONAL DEPOSITIONS 

In the response, the plaintiff requests the Court’s assistance in setting dates to depose

defendants DuCommon and Clevenger. Dkt. 43 at 4. The plaintiff has not moved for such relief, and

the request is not properly before the Court. As indicated above, the discovery deadline in this case

passed more than one month before the response was filed. The plaintiff offers no justification for

failing to move for relief earlier.

The plaintiff also seeks to depose the doctor who ultimately conducts the medical

examination, and the defendants agree that this is appropriate. See Dkt. 46-2 at 2 (proposed order

allowing for deposition). The Court should extend the discovery deadline to accommodate this

deposition. Until the date for the medical examination is set, the precise extension of the discovery

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ORDER 

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deadline cannot be determined.

Finally, the plaintiff contends that he would be severely prejudiced if not allowed to depose

Thomas Ovens. Dkt. 43 at 4. The plaintiffs allege that this witness was not disclosed. Id. The name

and expert report of this witness were filed with the Court on August 8, 2006, the deadline for

disclosure of expert witnesses. Dkt. 28. The plaintiff offers no justification for failing to depose this

witness before the discovery cutoff. 

F. MOTION TO STRIKE

The plaintiff moves to strike the anticipated trial testimony and declaration of Thomas Ovens,

which accompanies the Defendants’ Motion for Summary Judgment, on the grounds that “Thomas

Ovens was not previously identified as a witness for the State.” Dkt. 43 at 5; Dkt. 38 (declaration).

As noted above, Thomas Ovens was disclosed as an expert witness, and this disclosure was timely.

The motion to strike should be denied.

III. ORDER

Therefore, it is hereby

ORDERED that Defendants’ FRCP 37 Submission for a Motion to Compel and Motion in

Limine Striking Late Disclosed Witnesses (Dkt. 41-1) is GRANTED in part and DENIED in part

as follows: 

(1) On or before November 17, 2006, the parties shall show cause, if any they may have, why

information contained in the plaintiff’s initial disclosures should not be excluded from use as

evidence at a trial, at a hearing, or on a motion any witness. The response and reply, if any,

are due November 20 and November 24, 2006, respectively. 

(2) With respect to the plaintiff’s disclosures under Fed. R. Civ. P. 26(a)(2), the Motion in

Limine is GRANTED.

(3) The Motion to Compel is DENIED.

(4) The parties shall notify the Court on or before November 21, 2006, of the scheduling of

the independent medical examination, at which time the new discovery deadline will be set.

(5) The motion to strike contained in the plaintiff’s response (Dkt. 43) is DENIED.

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ORDER 

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The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel of

record and to any party appearing pro se at said party’s last known address.

DATED this 14th day of November, 2006.

ARobert J. Bryan

United States District Judge 

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