Bleek v. Supervalu, Inc.

• Decision Date: 31 March 2000
• Docket Number: No. CV-97-105-GF.,CV-97-105-GF.
• Citation: 95 F.Supp.2d 1118
• Parties: Gary J. BLEEK, Plaintiff, v. SUPERVALU, INC., Defendant.
• Court: U.S. District Court — District of Montana

Page 1118

95 F.Supp.2d 1118

Gary J. BLEEK, Plaintiff, v. SUPERVALU, INC., Defendant.

No. CV-97-105-GF.

United States District Court, D. Montana, Great Falls Division.

March 31, 2000.

J. Kim Schulke, Linell, Newhall, Martin & Schulke, PC, Great Falls, MT, for Plaintiff.

John G. Crist, Crist Law Firm, LLC, Billings, MT, for Defendant.

MEMORANDUM AND ORDER

HATFIELD, Senior District Judge.

Presently before the court are:

1. Supervalu's motion in limine seeking an order precluding Bleek from presenting any evidence (including expert opinions) or argument that Supervalu's termination of Bleek early in the day on August 23, 1996, caused him to become 100% disabled later during that same day;

2. Bleek's motion seeking to reopen discovery for the limited purpose of allowing Bleek to add an expert witness; and

3. Bleek's motion in limine.

The first two of these motions are related and will, therefore, be addressed together.

A. Supervalu's Motion in Limine and Bleek's Motion to Add an Expert Witness.¹

Through its motion in limine, Supervalu seeks exclusion of any evidence or argument on the precise issue of whether Supervalu's termination of Bleek caused him to become 100% disabled on August 23, 1996. Supervalu predicates its motion on its position that Bleek cannot prove Supervalu's termination of him caused him to become totally disabled because Bleek has failed to disclose any expert witness competent to testify in support of that claim, and medical causation requires proper expert testimony.

Bleek has responded in two ways. First, he has argued that he has identified two non-physician expert witness competent to testify that Supervalu's termination of his employment aggravated his pre-existing PTSD to the point where he became totally disabled. Second, he has moved the court to reopen discovery for the limited purpose of allowing him to add a physician as an expert witness, thus eliminating the need for a ruling on Supervalu's motion in limine.

1. Bleek's motion to reopen discovery to add a physician.

In seeking to reopen discovery, Bleek necessarily seeks modification of the schedule set in this action. The schedule "shall not be modified except upon a showing of good cause." Fed.R.Civ.Proc.Rule 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). Rule 16(b)'s "`good cause' standard primarily considers the diligence of the party seeking the amendment.... [T]he focus of the inquiry is upon the moving party's reasons for seeking modification.... If that party was not diligent, the inquiry should end." Johnson, 975 F.2d at 609 (citations omitted).

In the case sub judice, Bleek seeks modification of the schedule to identify an expert to testify that his termination by Supervalu caused his pre-existing PTSD to become aggravated to the point that he was rendered totally disabled. However, a review of the record reveals Bleek has not been diligent in providing a physician expert witness to testify in this regard within the deadlines established in the court's scheduling order.

Bleek filed his complaint on August 20, 1997. The parties completed discovery in October 1998, after receiving from the court three extensions of time to complete identification of expert witnesses, to submit expert witness disclosure statements and to otherwise complete discovery. Bleek's request at this juncture in the proceedings, nearly 15 months past the deadline, satisfies neither the diligence requirement nor the "good cause" standard contemplated in Rule 16(b). Thus, the schedule in this action shall not be modified.

Even though Bleek's motion deals specifically with modifying the schedule only to reopen discovery for the limited purpose of adding an expert witness, the court does not believe the circumstances warrant modification even for this purpose. In deciding whether to reopen discovery, courts consider the following factors:

1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence.

U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir.1995), cert. granted in part, 519 U.S. 926, 117 S.Ct. 293, 136 L.Ed.2d 212, judgment vacated on other grounds, 520 U.S. 939, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997), citing, Smith v. United States, 834 F.2d 166, 169 (10th Cir.1987). Whether to reopen discovery rests in the court's sound discretion. U.S. ex rel. Schumer, 63 F.3d at 1526.

In this court's opinion, these factors do not weigh in Bleek's favor. It is true the trial of this matter is not "imminent." Trial is scheduled to commence on October 2, 2000, some six months hence. It is also true, however, that Supervalu has opposed Bleek's request, and will undoubtedly be prejudiced if the court grants it. Supervalu would be in a position of having to conduct additional discovery relative to the new expert witness and would incur the attendant expenditure of time and resources in doing so.

Moreover, as noted supra, Bleek was not diligent in identifying an appropriate expert witness within the permitted time. Similarly, it is reasonable that Bleek could and should have foreseen the necessity of identifying an appropriate expert witness to testify regarding the subject issue prior to the deadline. This conclusion is especially apparent in light of the fact that Bleek presumably did anticipate this necessity when he identified two experts whom he intends to have testify in this regard.² For all of these reasons, Bleek's motion to reopen discovery and to modify the schedule of this action is denied.

2. Supervalu's motion in limine to exclude any testimony or argument that Supervalu's termination of Bleek caused him to become 100% disabled on August 23, 1996.

Again, Supervalu seeks exclusion of any evidence or argument on the precise issue of whether Supervalu's termination of Bleek caused him to become 100% disabled on August 23, 1996.

Under Montana law, a plaintiff seeking damages for an injury is competent to testify as to his past and present condition. Cain v. Stevenson, 218 Mont. 101, 706 P.2d 128, 131 (1985). This testimony alone is not sufficient, however, to establish causation of the injury where the nature of the injury is such that laymen can neither plainly see, nor infer from the injury, its cause or its potential for permanency. Id. (noting loss of a limb as an example of an injury that is readily apparent as permanent in nature). Rather, qualified medical testimony from an expert witness is necessary to prove the cause or permanence of such injuries. Id.

Along these same lines, a plaintiff need not establish the causal connection between an incident and injury with certainty. Moralli v. Lake County, 255 Mont. 23, 839 P.2d 1287, 1291 (1992). Rather, the connection may be established with reasonable certainty or by a preponderance of the evidence. Id.,citing, Allers v. Willis, 197 Mont. 499, 643 P.2d 592, 595-96 (1982).

Bleek's alleged 100% disability from PTSD is not an injury for which laymen could plainly determine cause or permanency. Thus, qualified medical testimony from an expert witness is required to prove causation. Bleek has identified two witnesses whom he intends to call to testify relative to his contention that his termination by Supervalu caused his PTSD to worsen to the point that he became 100% disabled. These witnesses, Ann Arrington and Tony Rizzo, are licensed counselors. Neither witness, however, is a medical expert qualified to testify that Bleek's termination caused him to become 100% disabled.

Because neither Arrington nor Rizzo are qualified to render such an opinion, and because they are the only witnesses Bleek has identified in this regard, Supervalu's motion in limine to exclude any evidence or argument on the precise issue of whether Supervalu's termination of Bleek caused him to become 100% disabled on August 23, 1996, is appropriately granted.

B. Bleek's Motion in Limine.

Bleek has moved in limine for exclusion of any testimony or other evidence regarding the issues listed below. The court addresses these issues seriatim.

1. Any opinion testimony from Doug Speer, one of Supervalu's Human Resource Directors, regarding proper employment practices.

Bleek seeks to exclude any opinion testimony from Doug Speer, Supervalu's director of human resources involved in Bleek's termination. First, Bleek seeks exclusion of testimony Speer may offer regarding his reasons for neither sharing nor disclosing information he possessed regarding Bleek's PTSD to Bleek's supervisor or co-workers. The information was apparently contained in a letter Bleek's counselor, Tony Rizzo, submitted in support of a leave of absence request Bleek made in May of 1994 for work-related stress. Second, Bleek generally challenges what he anticipates will be "some opinions regarding what [Speer] considers to be proper employment practices."

Supervalu has responded that Speer will testify that it is Supervalu's policy to keep medical information about employees strictly confidential when Supervalu obtains such information as part of an employee's request for time off for medical reasons. He also will testify that supervisors are made aware of such medical information only when necessary to facilitate a leave of absence or a reasonable accommodation, if necessary. Because Bleek's request was specifically for time off, Speer will testify that he chose to keep the medical information confidential.

Plaintiff has neither cited relevant authority nor argued persuasively to convince this court that Supervalu's anticipated use of Speer's testimony in this regard is improper. Therefore, in this court's opinion, this...