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In re Pedestrian Walkway Failure9/20/2005
lified to testify about such matters or else, if she does have such experts, she failed to make reasonable inquiry of them. In either event, Plaintiff through her responses to those requests has prejudiced Defendants in their defense of Plaintiff's claims . . . .
As a sanction, Mrs. Hepler was prohibited from contradicting the subject matter in RFAs Nos. 2-5 at trial.
ii. Mrs. Hepler's Late Identification of Dr. Joseph Bederka as an Expert Witness
On 29 March 2002, Mrs. Hepler disclosed for the first time that she might call Dr. Joseph Bederka as an expert in the field of toxicology to provide testimony as to the cause of Mr. Hepler's death. Pursuant to CMOs Nos. 1 and 2, all parties were required to disclose the name, business affiliation, and address of all of their expert witnesses by 15 March 2002 and were required to disclose the substance of the facts and opinions to which the experts were expected to testify and a summary of the grounds for the experts' opinions by 29 March 2002. Judge Spainhour had consistently enforced the deadlines in CMOs Nos. 1 and 2, and had previously excluded a defense witness for the failure to meet the 15 March 2002 deadline.
Tindall sought to have Dr. Bederka's testimony excluded based upon his late identification. At the 1 April 2004 hearing on this issue, Mrs. Hepler's attorney asserted that the failure to disclose Dr. Bederka's name, business affiliation, and address on 15 March 2002 was the result of a "clerical error" and was inadvertent. Judge Spainhour indicated that he did not attribute any ill will to the nondisclosure, but noted that he felt obligated "to be as fairas [he could]" and to treat everybody the same. In his 22 April 2004 order, Judge Spainhour ruled that
Tammy Hepler failed to timely identify Dr. Joseph Bederka in accordance with the deadline established by the Case Management Orders for the identification of all expert witnesses and, as with other expert witnesses identified late by other parties, Dr. Bederka therefore should not, and he will not, be permitted to testify.
Further, Judge Spainhour ruled that no other witnesses would be permitted to refer to any opinions held by Dr. Bederka.
iii. Incomplete Discovery Concerning Mrs. Hepler's Previous Back Injuries
Defense interrogatories served in August of 2001 requested that Mrs. Hepler identify the names and addresses of all health care providers who examined or treated her, as well as any accidents, injuries, medical conditions, or illnesses she experienced, during the ten years preceding the pedestrian walkway collapse. A corresponding request for production of documents sought " ll medical records . . . relating to every illness or injury identified . . . in answers to nterrogatories . . . ."
Mrs. Hepler's answers indicated that she suffered a herniated disc in 1994, for which she received treatment from Dr. F. Gary Gieseke in Florida, and that she underwent back surgery in 1995. In a 21 November 2003 letter, defense counsel requested additional information about Dr. Gieseke's examination and treatment of Mrs. Hepler. Specifically, the letter noted that the defense had received hospital records pertaining to the back surgery, but lacked records of other treatment provided by Dr. Gieseke. Promptproduction of such additional records was requested. Mrs. Hepler's attorney responded on 11 December 2003 by indicating that Mrs. Hepler had requested the information and documents pertaining to her treatment by Dr. Gieseke and that she would supplement the discovery requests when the information was provided. Dr. Gieseke's office had a policy of keeping records for only seven years; therefore,
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