Opinion
No. 95-846-FR
August 31, 2000
Lawrence Wobbrock, Portland, Oregon, for Plaintiff.
James H. Gidley, Crowe Gidley, Portland, Oregon, for Larry Evey.
Larry A. Brisbee, Barbara L. Johnston, Brisbee Stockton, Hillsboro, Oregon, for Defendants Baker Rock Resources, abn Baker Rock Crushing Co., and Mountain Trucking Co., Inc.
The matter before the court is the motion for protective order and to allow substitution of expert witness by defendants Baker Rock and Mountain Trucking (#149).
BACKGROUND
This action arises out of a collision between vehicles driven by plaintiff Cynthia McDowell and defendant Larry Evey on March 17, 1994. On June 12, 1995, plaintiff McDowell filed this action against defendants Larry Evey, Washington County, Baker Rock Resources (Baker Rock), Portland General Electric (PGE), and Mountain Trucking Co., Inc. (Mountain Trucking). Plaintiff McDowell has settled her case against PGE.
On September 6, 1996, the court set October 31, 1996 for the exchange of expert disclosure statements. Defendants Baker Rock and Mountain Trucking disclosed Francis Moffitt as their expert on the subject of photogrammetry. Photogrammetry is a science that determines the exact locations and dimensions of objects seen in photographs. The exact location of roadways, signs, and alleged sight obstacles as determined by photogrammetry is important in this case to help the triers of fact to determine what each driver could see immediately prior to the collision.
At the time Francis Moffitt was retained by defendants Baker Rock and Mountain Trucking, he had retired as a professor at the University of California located in Berkeley, California. Professor Moffitt maintained an office in the School of Engineering and made himself available as a consultant to industry and as an expert witness for other litigants.
On March 20, 1997, this court entered an order granting summary judgment in favor of defendants Baker Rock, Mountain Trucking, and Washington County. The court further ordered the action to proceed to trial on the claims of plaintiff McDowell and the cross-claims of defendant Larry Evey.
On April 3, 1997, as agreed by the parties, the court entered a judgment pursuant to Rule 54(b) against plaintiff McDowell and in favor of defendants Baker Rock, Mountain Trucking, and Washington County. The court stayed the action against defendant Larry Evey. Plaintiff McDowell filed an appeal.
On July 26, 1999, the United States Court of Appeals for the Ninth Circuit reversed in part and remanded for trial plaintiff McDowell's claim under the common law against defendants Baker Rock and Mountain Trucking.
Trial of plaintiff McDowell's claims against defendants Larry Evey, Baker Rock, and Mountain Trucking is set to commence before this court on November 14, 2000.
On October 18, 1999, counsel for defendants Baker Rock and Mountain Trucking were advised that their expert witness, Francis Moffitt, would be unable to assist with trial preparation. Francis Moffitt advised counsel for defendants Baker Rock and Mountain Trucking that he had completely retired; that he no longer had his equipment; and that he could no longer perform photogrammetric calculations or analysis.
In November of 1999, defendants Baker Rock and Mountain Trucking retained another photogrammetrist, Lee DeChant. In a letter dated February 3, 2000, counsel for defendants Baker Rock and Mountain Trucking notified counsel for plaintiff McDowell of their intent to substitute DeChant for Moffitt. On February 8, 2000, counsel for plaintiff McDowell wrote to counsel for defendants Baker Rock and Mountain Trucking requesting proof that Francis Moffitt was no longer available and was not willing to testify. On March 14, 2000, a preliminary copy of Lee DeChant's report was provided to counsel for plaintiff McDowell, and a revised report was provided on May 26, 2000.
On June 18, 2000, Francis Moffitt signed a letter prepared by counsel for defendants Baker Rock and Mountain Trucking, which states:
To Whom It May Concern:
Because of my retirement, and because of serious health problems of both my wife and myself, I am unable to serve as an expert witness for defendants Baker Rock and Mountain Trucking in litigation in the United States District Court for the District of Oregon.
Exhibit A to Motion for Protective Order and to Allow Substitution of Expert Witness by Defendants Baker Rock and Mountain Trucking.
Defendants Baker Rock and Mountain Trucking move the court for the following orders: 1) an order protecting Francis Moffitt from being deposed by plaintiff McDowell; and 2) an order authorizing defendants Baker Rock and Mountain Trucking to substitute Lee DeChant as their expert witness for trial.
CONTENTIONS OF THE PARTIES
Defendants Baker Rock and Mountain Trucking contend that to substitute Lee DeChant for Francis Moffitt will not prejudice plaintiff McDowell. Defendants Baker Rock and Mountain Trucking further contend that plaintiff McDowell has had notice of the proposed substitution since February of 2000, and that the information contained in DeChant's report is not materially different from the information determined by plaintiff McDowell's own photogrammetrist. Defendants Baker Rock and Mountain Trucking contend that Moffitt is elderly, in ill health, and cares for his wife who is in poorer health than he. Defendants Baker Rock and Mountain Trucking argue that there is no reason for plaintiff McDowell's counsel to take his deposition.
Plaintiff McDowell opposes the issuance of a protective order and the substitution of DeChant for Moffitt. Plaintiff McDowell argues that the opinions and conclusions disclosed in Moffitt's 1996 expert statements have been relied upon by other expert witnesses and have been evaluated by plaintiff McDowell's expert witnesses. Plaintiff McDowell contends that significant trial preparation costs have been incurred based upon defendants Baker Rock and Mountain Trucking's disclosure statements. Plaintiff McDowell further contends that the expert disclosure for DeChant fails to comply with the requirements of Rule 26 in a number of ways.
In reply, defendants Baker Rock and Mountain Trucking supplement the expert disclosure materials of DeChant.
APPLICABLE LAW
Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure requires disclosure of all expert testimony which may be used at trial under Rules 702, 703 and 705 of the Federal Rules of Evidence at least ninety days before trial in the absence of other directions from the court. In United States v. Procter Gamble Co., 356 U.S. 677, 683 (1958), the Court explained that the discovery-deposition provisions of the Federal Rules were intended to make a "trial less a game of blind man's buff [sic] and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent."
RULING OF THE COURT
Two years and nine months have elapsed between the time that expert disclosures were required by this court and the mandate of the United States Court of Appeals for the Ninth Circuit reversing the judgment in favor of these defendants and remanding this case for trial. The circumstances which occasion Francis Moffitt's inability to testify were outside the control of these defendants.
Defendants Baker Rock and Mountain Trucking informed plaintiff McDowell in February of the problem with the availability of their expert. Trial is not scheduled to commence until November 14, 2000. There has been no showing that DeChant's expert opinion differs significantly from Moffitt's opinion. There is adequate time for all parties to review DeChant's opinion and to complete any discovery necessitated by DeChant's opinion. The court finds that there has been no showing of prejudice in allowing the substitution, and that there is no showing that the deposition of Moffitt is required.
IT IS HEREBY ORDERED that the motion for protective order and to allow substitution of expert witness by defendants Baker Rock and Mountain Trucking (#149) is GRANTED.