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In re Pedestrian Walkway Failure9/20/2005
f good cause.
CMO No. 2, entered 13 March 2002, slightly revised the identification requirements and provided that " he identification of all expert witnesses on or before March 15, 2002 shall be limited to the name, business affiliation and address of each expert. On or before March 29, 2002, all parties shall provide the remaining identification of all expert witnesses as defined in . . . No. 1." CMO No. 5, entered 30 October 2002, required all plaintiffs in the pedestrian walkway litigation to provide supplemental responses to interrogatories and requests for production of documents and to certify that a complete and updatedset of, inter alia, medical records had been provided to defendants. CMO No. 6, entered 16 May 2003, again required all plaintiffs to "provide defense counsel with updated medical reports, medical bills, expert witness reports" and mandated that plaintiffs notify defense counsel if such information had already been provided.
Specifically, Tindall's motion and Judge Spainhour's 22 April 2004 order addressed the following topics:
i. Requests for Admissions Concerning an Autopsy Performed on Mr. Hepler
An autopsy performed on Mr. Hepler revealed the presence of certain drugs in his system. Defense attorneys sought to determine whether these findings would be contested and whether the drugs found in his system had been prescribed for Mr. Hepler in the recent past. Therefore, the following requests for admissions were served upon Mrs. Hepler:
2. The results shown in the toxicology section of the Autopsy Report . . . accurately report the levels of acetaminophen, alprazolam, hydrocodone, norpropoxyphene, and propoxyphene which existed in Drew Hepler's blood and liver at the time of death.
3. The propoxyphene and norpropoxyphene shown by the Autopsy Report as found in Drew Hepler's blood and liver did not result from any medication prescribed for during the six-month period prior to his death.
4. No physician or other medical care provider prescribed any medicines for Drew Hepler containing propoxyphene . . . during the six month period prior to his death.
5. No physician or other medical care provider prescribed Darvocet or Darvon for Drew Hepler during the six-month period prior to his death.
(hereinafter "the RFAs" or "RFAs Nos. 2-5"). On 13 March 2002, Mrs. Hepler responded that she could not admit or deny any of the foregoing items because she was "not educated nor qualified to interpret the findings of [the medical examiner]" and "lack knowledge concerning medicine and the effect of medications prescribed to and taken by Drew Hepler during the six-month period prior to his death." Further, she stated that she had "made reasonable inquiry and the information known or readily obtainable to her insufficient to enable her to admit or deny th [RFAs] for the reason that she lack knowledge concerning medicine and the formulation, preparation, and interpretation of autopsy reports. . . ." On 11 December 2003, well after the parties were required to be aware of the substance of their experts' opinions pursuant to CMOs Nos. 1 and 2, Mrs. Hepler's attorney indicated that these responses remained full and complete responses.
In its motion, Tindall sought sanctions for the failure of Mrs. Hepler to consult with her experts before responding to RFAs Nos. 2-5. Specifically, Tindall requested that the Court "strike non-responses . . . and . . . deem [RFAs Nos. 2-5] to be admitted." In his 22 April 2004 order, Judge Spainhour determined that
Tammy Hepler, by her response to Requests for AdmissionsNos. 2, 3, 4, and 5, either has no expert witness qua
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