Nelson v. Long Reef Condominium Homeowners Association

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
ANNE-MARIE BEDELL and 	)
SANDRA NELSON, 	)
)
Plaintiffs, 	)
)
v. 	)
)
)
LONG REEF CONDOMINIUM 	) 	Civil Action No. 2011-051
HOMEOWNERS ASSOCIATION, 	)
)
Defendant. 	)
__________________________________________)
)
LONG REEF CONDOMINIUM 	)
HOMEOWNERS ASSOCIATION, 	)
)
Counter-Claimant, 	)
)
v. 	)
)
ANNE-MARIE BEDELL and 	)
SANDRA NELSON, 	)
)
Counter-Defendants. 	)
__________________________________________)
Attorneys:
Britain Bryant, Esq.,
Sunshine S. Benoit, Esq.,
St. Croix, U.S.V.I.
For the Plaintiffs/Counter-Defendants
Douglas L. Capdeville, Esq.,
Mia L. Woodard, Esq.,
Ellen G. Donovan, Esq.,
St. Croix, U.S.V.I.
For the Defendant/Counter-Claimant
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MEMORANDUM OPINION
Lewis, Chief Judge
THIS MATTER is before the Court on Plaintiffs’ “Motion in Limine to Limit the
Testimony of Dr. Hendricks” (Dkt. No. 85) and Defendant’s “Motion in Limine to Limit the
Testimony of Plaintiffs’ Treating Physicians” (Dkt. No. 115). The Court heard oral arguments
from the parties regarding these Motions at the pretrial conference in this matter on February 27,
2014.1 For the reasons that follow, the Court will deny both Motions.
I. 	B ACKGROUND
Plaintiffs Anne-Marie Bedell and Sarah Nelson allege in their First Amended Complaint
that Defendant Long Reef Condominium Home Owner’s Association violated provisions of the
Fair Housing Act (“FHA”) (42 U.S.C. § 3604(f)(2)–(3)) by enforcing its pet prohibition against
them and refusing to allow them to keep dogs they claim to be emotional support animals in their
condominium units. (Dkt. No. 6).
Plaintiff Bedell alleges in the First Amended Complaint that she was diagnosed with
depression by her treating physician, Dr. Frank Bishop, in 1998. (Dkt No. 84-1 at ¶ 5). Bedell
claims that as a result of her anxiety and depression she has difficulty interacting with others,
living independently, and sleeping. (Id. at ¶ 6). Further, she claims to suffer from periods of
loneliness. (Id.). Bedell claims that the dog calms her, reduces the effects of her impairments,
and improves the quality of her life. (Id. at ¶ 8).
1 The trial in this matter was scheduled to commence on March 10, 2014. Because of Plaintiff
Bedell’s sudden illness, Plaintiffs filed an “Emergency Motion to Continue Trial” (Dkt. No. 144)
on March 3, 2014, which was granted by the Court (Dkt. No. 148). As of March 10, 2014,
Plaintiff Bedell’s medical status remained uncertain. (Dkt. No. 156).
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Plaintiff Nelson alleges that in the fall of 2009 she witnessed the shooting death of a
friend, and that her brother passed away. (Dkt. No. 30 at 2). Nelson claims that she was
diagnosed with depression and post-traumatic stress disorder (“PTSD”), and that two mental
health professionals advised her that it was “necessary” for her to keep the dog for emotional
support. (Id. at ¶ 20). Nelson further claims that, as a result of her PTSD, she worries about her
safety, which in turn affects her ability to live independently and to interact with other people.
(Id.). She also alleges that she is afflicted with nightmares and is unable to leave her home at
times. (Id.). According to Nelson, the presence of her dog reduces the effects of her PTSD and
depression, thereby improving her quality of life. (Id. at 22).
Plaintiffs 	provided 	summaries 	of 	their 	treating 	physicians’ 	expected 	testimony to
Defendant on December 28, 2012. (Dkt. No. 115-3). Defendant’s expert witness, Dr. Olaf
Hendricks, conducted psychiatric evaluation of the Plaintiffs on January 10, 2013, and produced
a report on each Plaintiff on January 31, 2013. (Dkt. Nos. 85-1, 85-2). Plaintiffs’ three treating
physicians, including Dr. Bishop, were deposed on February 12 and February 13, 2013. (Dkt.
Nos. 92-12, 92-13, 139-3). During Dr. Bishop’s deposition, he made several references to
Plaintiff Bedell’s alleged alcohol use. (Dkt. No. 139-3 at 3–6, 8, 11, 14–15, 17).
No deposition was scheduled for Defendant’s expert, Dr. Hendricks, because Plaintiffs
advised Defendant that they did not intend to depose him. (Dkt. No. 80 at 1). However,
Defendant stated that after completing the depositions of Plaintiffs’ treating physicians, it
identified 	the 	need 	to 	depose 	Dr. 	Hendricks 	to 	respond 	to 	“information 	regarding 	the
qualifications and methodologies (if any) used to arrive at the ultimate opinions of Plaintiffs’
treating physicians.” (Dkt. No. 76 at 5). Accordingly, Defendant filed an “Emergency Motion to
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Extend Expert Discovery Deadline” (Dkt. No. 76), which the Court granted (Dkt. No. 80). Dr.
Hendricks was deposed on March 20, 2013. (Dkt. No. 86-9).
In Plaintiffs’ Motion in Limine, they argue that Dr. Hendricks should be precluded from
opining at trial with regard to Plaintiff Nelson’s need for an emotional support animal.2 In
Defendant’s Motion in Limine, it argues that Plaintiff Bedell’s treating physician, Dr. Bishop,
should be precluded from opining at trial that Plaintiff Bedell’s alleged alcoholism constitutes a
disability under the FHA.3
II. 	APPLICABLE L EGAL PRINCIPLES
Federal Rules of Civil Procedure 26(a)(2)(A)-(B) state, in pertinent part:
(A) [A] party must disclose to the other parties the identity of any witness it may
use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
2 In their Motion, Plaintiffs further argued that Dr. Hendricks should be precluded from opining
at trial with regard to Plaintiff Bedell’s need for an emotional support animal. (Dkt. Nos. 85, 92).
However, Plaintiffs withdrew this argument at the pretrial conference. Plaintiffs further argued in
their Motion that Dr. Hendricks should be precluded from testifying with regard to the physical
condition of alcoholism because he did not offer an opinion in his report as to this issue, and he
is not qualified as a psychiatrist to opine on physical conditions. (Dkt. Nos. 85, 92). Plaintiffs’
counsel conceded at the pretrial conference that Plaintiffs are not arguing that Bedell’s alleged
alcoholism is a physical condition; thus, Plaintiffs withdrew these arguments as well.
3 In its Motion, Defendant consistently argued that it sought to preclude Dr. Bishop from
testifying with regard to Plaintiff Bedell’s “alleged ‘physical condition’ of alcoholism.” (Dkt.
No. 139). At the pretrial conference, Defendant clarified that it has two alternative positions. The
first is that Dr. Bishop should be precluded from testifying that Bedell’s alleged alcoholism
constitutes a disability, in and of itself, under the FHA. Defendant distinguishes this argument
from one to which it does not object—that alcoholism is a coping mechanism resulting from
Plaintiff Bedell’s alleged disability of depression. Alternatively, Defendant argues that if Dr.
Bishop is permitted to testify that Bedell’s alleged alcoholism is a disability, her alleged
alcoholism should be considered a mental condition, as opposed to a physical condition. Because
Plaintiffs withdrew their argument that Bedell’s alleged alcoholism is a physical condition, the
only question before the Court is whether Dr. Bishop is precluded from opining at trial that
Bedell’s alleged alcoholism constitutes a disability under the FHA.
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(B) . . . 	this disclosure must be accompanied by a written report—prepared and
signed by the witness—if the witness is one retained or specially employed to
provide expert testimony in the case or one whose duties as the party's employee
regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them.
Fed. R. Civ. P. 26(a)(2)(A)-(B).
Treating physicians or other health care professionals generally may testify as fact
witnesses without providing an expert report when “testifying ‘based on their examination,
diagnosis and treatment of a patient.’” Pease v. Lycoming Engines, 2012 U.S. Dist. LEXIS 6354,
at *41–42 (M.D. Pa. Jan. 19, 2012) (quoting Mracek v. Bryn Mawr Hosp., 610 F. Supp. 2d 401,
406 (E.D. Pa. 2009)). However, “[p]arties must identify such witnesses under Rule 26(a)(2)(A)
and provide the disclosure required under Rule 26(a)(2)(C).” Fed. R. Civ. P. 26 advisory notes
(2010). The disclosure required under Rule 26(a)(2)(C) “must state: (i) the subject matter on
which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or
705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.”
Fed. R. Civ. P. 26(a)(2)(C).
Although a Rule 26(a)(2)(B) written report must contain more extensive information than
a the Rule 26(a)(2)(C) summary, “the two forms of disclosure share the goal of increasing
efficiency and reducing unfair surprise.” Brown v. Providence Med. Ctr., 2011 U.S. Dist. LEXIS
111098, at *3 (D. Neb. Sept. 27, 2011) (citation and internal quotation marks omitted); accord
Robinson v. HD Supply, Inc., 2013 U.S. Dist. LEXIS 101690 (E.D. Ca. July 19, 2013); Moshi v.
State Farm Mut. Auto. Ins. Co., 2013 U.S. Dist. LEXIS 76917 (D. Nev. May 30, 2013).
Federal Rule of Civil Procedure 37(c)(1) states that: “If a party fails to provide
information or identify a witness as required by Rule 26(a) . . . the party is not allowed to use
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that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). To determine whether
a discovery violation is “substantially justified,” courts in the Third Circuit consider several
factors, sometimes referred to as the Pennypack factors:
(1) “the prejudice or surprise in fact of the party against whom the excluded
witnesses would have testified” or the excluded evidence would have been
offered; (2) “the ability of that party to cure the prejudice”; (3) the extent to which
allowing such witnesses or evidence would “disrupt the orderly and efficient trial
of the case or of other cases in the court”; (4) any “bad faith or willfulness in
failing to comply with the court's order”; and (5) the importance of the excluded
evidence.
ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 298 (3d Cir. 2012) (citing Myers v. Pennypack
Woods Home Ownership Ass’n, 559 F.2d 894, 904–05 (3d Cir. 1977)).
III. 	DISCUSSION
Plaintiffs contend that Dr. Hendricks should be precluded from testifying with regard to
whether Plaintiff Nelson needs an emotional support animal because his report did not offer an
opinion as to whether she did or did not require an emotional support animal. Defendant argues
that Plaintiff Bedell’s treating physician, Dr. Bishop, should be precluded from opining at trial
that Bedell’s alleged alcoholism constitutes a disability under the FHA because Plaintiffs failed
to plead such a theory in their First Amended Complaint, or to timely disclose it in discovery.
The Court will address the parties’ arguments in turn.
A. 	Dr. Hendricks’ Testimony
Plaintiffs argue that if Dr. Hendricks were permitted to opine at trial that Plaintiff Nelson
does not need an emotional support animal, his testimony would violate Federal Rule of Civil
Procedure 26(a)(2)(B), which requires an expert report to contain “a complete statement of all
opinions the witnesses will express and the basis and reasons for them.” (Dkt. No. 85 at 4)
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(quoting Fed. R. Civ. P. 26(a)(2)(B)(i)). According to Plaintiffs, Dr. Hendricks’ report “is void of
any opinion[]” regarding whether Plaintiff Nelson requires an emotional support animal. (Id.).
The Court disagrees.
One of Plaintiffs’ FHA claims is a “reasonable accommodation” claim. (Dkt. No. 6 at ¶
61). To satisfy the first element of a reasonable accommodation claim, a plaintiff must suffer
from a disability as defined under the FHA. Overlook Mut. Homes, Inc. v. Spencer, 415 F. App’x
617, 	621 	(6th 	Cir. 	2011). 	The 	FHA 	defines 	“handicap”—which 	is 	synonymous 	with
“disability”—as “a physical or mental impairment which substantially limits one or more of such
person’s major life activities.” 42 U.S.C. § 3602(h).4
Dr. Hendricks’ report regarding Plaintiff Nelson begins as follows:
As per your request, a psychiatric examination of Sandra Nelson was conducted
on January 10, 2013. [sic] For the purpose of generating a [sic] whether she has a
psychiatric condition which prevented her from being able to engage in major life
activities and whether a pet is a necessary component of the treatment.
(Dkt. No. 85-2). Thus, Dr. Hendricks noted at the outset that his task was to determine, in
essence, whether Plaintiff Nelson suffers from a mental impairment that substantially limits her
ability to engage in major life activities (i.e. a handicap under the FHA), and whether she needs
an emotional support animal as part of her treatment for that impairment. He concluded that she
demonstrated no signs of PTSD at the time of the evaluation—the primary impairment from
which she claims to suffer. (Dkt. No. 85-2 at 4).
4 The terms “handicap” and “disability” share the same legal definition. See Bragdon v. Abbott,
524 U.S. 624, 631 (1998) (“The ADA’s definition of disability is drawn almost verbatim from
. . . the definition of ‘handicap’ contained in the Fair Housing Act Amendments of 1988, 42
U.S.C. § 3602(h). Congress’ repetition of a well-established term carries the implication that
Congress 	intended 	the 	term 	to 	be 	construed 	in 	accordance 	with 	pre-existing 	regulatory
interpretations.”).
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Given the nature of the inquiry—as stated in Dr. Hendricks’ introduction to his report—
and Dr. Hendricks’ finding that Plaintiff Nelson “manifested no signs of post-traumatic stress
disorder,” (Dkt. No. 85-2 at 1), as well as his attribution of her current emotional state to her
housing situation (as opposed to an impairment),5 a reasonable reading of Dr. Hendricks’ report
is that he concluded that Nelson does not suffer from a psychiatric disorder. Plaintiffs appear to
agree—having acknowledged in a February 2013 filing that, “[i]n his reports, Dr. Hendricks
opines that neither Plaintiff suffers from a psychiatric disorder.” (Dkt. No. 78 at 10) (emphasis
added).
Because Dr. Hendricks found that Plaintiff Nelson did not suffer from a psychiatric
disorder, the conclusion would seem inescapable that the predicate for any treatment—and thus,
obviously, the need for any treatment—would be absent. Further, because a pet—or an emotional
support animal—was considered to be a “component of the treatment,” the absence of any need
for treatment would necessarily include an emotional support animal. To argue—as Plaintiffs
do—that Dr. Hendricks should not be able to testify as to whether Plaintiff Nelson requires an
emotional support animal because the report is “void of any [such] opinion” elevates form over
substance and ignores the obvious.
Accordingly, the Court will deny Plaintiffs’ request to preclude Dr. Hendricks from
rendering an opinion at trial on the ultimate issue of whether Plaintiff Nelson requires an
emotional support animal.
5 As Plaintiffs note in their Motion, “Dr. Hendricks opined that although [Nelson] suffered from
tearfulness, insomnia, crying spells, and anger, the cause of her symptoms resulted from the loss
of her home and not the deaths of four close friends in 2009[.]” (Dkt. No. 85 at 4) (citing Dkt No.
85-2 at 4–5) (emphasis added). Dr. Hendricks stated in his report: “That [not living in her own
condominium unit], in my professional opinion, is the proximate cause of her current emotional
state.” (Dkt. No. 85-2 at 5).
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B. 	Dr. Bishop’s Testimony
Defendant argues that, because Plaintiffs 	failed to 	assert in 	their 	First Amended
Complaint, their responses to interrogatories, or their Rule 26(a)(2)(C) summary of Dr. Bishop’s
expected testimony that Plaintiff Bedell’s alleged alcoholism constitutes a disability under the
FHA, Dr. Bishop should be precluded from so testifying at trial. Plaintiffs counter that Dr.
Bishop should be permitted to opine on this issue because they produced Dr. Bishop’s medical
records, which heavily referenced Bedell’s alleged alcoholism. Plaintiffs further argue that,
during Dr. Bishop’s deposition, “it was made known on several occasions throughout that one of
the disabilities to which Dr. Bishop was referring was Plaintiff’s alcoholism.” (Dkt. No. 139 at
5).
1. 	Plaintiffs’ Rule 26(a)(2)(C) Summary
Plaintiffs’ 	Rule 	26(a)(2)(C) 	summary 	for 	Dr. 	Bishop 	mentioned 	Bedell’s 	severe
depression, stress, and anxiety, but did not mention the use of alcohol in any capacity. (See Dkt.
No. 115-3 at 3). The summary provided in part that “Dr. Bishop is expected to provide opinion
testimony regarding matters contained within his medical records, including all treatment, tests,
recommendations, and diagnoses contained therein.” (Id.). At the pretrial conference, Plaintiffs’
counsel noted this reference to Bishop’s records, and advised the Court that the records “were
replete with references to Ms. Bedell’s problem with alcoholism and his treatment of the
alcoholism.”
However, this Court agrees with other courts that have soundly rejected the notion that
simply referring an opposing party to medical records may satisfy a party’s Rule 26(a)(2)(C)
disclosure requirements. See, e.g., Ibey v. Trinity Universal Ins. Co., 2013 U.S. Dist. LEXIS
116491 (D. Mont. Aug. 16, 2013); Flonnes v. Property & Cas. Ins. Co., 2013 U.S. Dist. LEXIS
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74018 (D. Nev. May 22, 2013); Schultz v. Ability Ins. Co., 2012 U.S. Dist. LEXIS 154145 (N.D.
Iowa Oct. 25, 2012); Smith v. Barrow Neurological Inst., 2012 U.S. Dist. LEXIS 106219 (D.
Ariz. July 30, 2012); Lopez v. Keeshan, 2012 U.S. Dist. LEXIS 85163 (D. Neb. June 20, 2012);
Ballinger v. Casey's General Store, Inc., 2012 U.S. Dist. LEXIS 45024 (S.D. Ind. Mar. 29,
2012). This Court “will not place a burden on Defendant[] to sift through medical records in an
attempt to figure out” the specifics of Dr. Bishop’s anticipated testimony. Brown, 2011 U.S. Dist.
LEXIS 111098, at *4.
Plaintiffs’ Rule 26(a)(2)(C) summary for Dr. Bishop stated that Dr. Bishop will opine
that Plaintiff Bedell “has severe limitations in coping with stress and anxiety, and that these
limitations substantially limit her major life activities[.]” (Dkt. No. 115-3 at 3). There was no
mention of alcohol use. (See id.). The Rule 26(a)(2)(C) summary also referenced a letter that Dr.
Bishop wrote on May 27, 2010. (Dkt. No. 115-6). However, like the Rule 26(a)(2)(C) summary
itself, Dr. Bishop’s May 27, 2010 letter mentioned anxiety, depression, and stress, but not
alcohol use. (Id.). The letter went on to state that Plaintiff Bedell has “functional limitations
imposed by her disability” and that she has “severe limitations in coping with stress and anxiety”
that “substantially limit her major life activities . . . .” (Id.). Under these circumstances, the Court
finds that Defendant could not have been expected to understand from Plaintiffs’ Rule
26(a)(2)(C) summary and Dr. Bishop’s May 27, 2010 that Dr. Bishop would opine that Plaintiff
Bedell’s alleged alcohol use constituted a disability under the FHA.
2. 	Dr. Bishop’s Deposition
Plaintiffs further argue that because Dr. Bishop testified in his deposition that one of
Plaintiffs’ alleged disabilities was alcoholism, he should be able to so testify at trial. The Court
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notes that an expert’s Rule 26(a)(2)(B) report typically cannot be expanded through deposition
testimony. The Seventh Circuit has held:
Rule 	26(a)(2) 	does 	not 	allow 	parties 	to 	cure 	deficient 	expert 	reports 	by
supplementing them 	with 	later 	deposition 	testimony. 	The purpose of 	Rule
26(a)(2) is to provide notice to opposing counsel—before the deposition—as to
what the expert witness will testify, and this purpose would be completely
undermined if the parties were allowed to cure deficient reports with later
deposition testimony.
Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008) (emphasis added).
This rationale applies with equal force to Rule 26(a)(2)(C) disclosures, which must
include “a summary of the facts and opinions to which the witness is expected to testify.” Fed. R.
Civ. P. 26(a)(2)(C)(ii). Although the advisory notes provide that a Rule 26(a)(2)(C) disclosure is
“considerably less extensive than the report required by Rule 26(a)(2)(B),” the Court finds that a
Rule 26(a)(2)(C) summary of “the facts and opinions” of a witness’s expected testimony should,
at a minimum, include the witness’s opinions regarding the plaintiff’s substantive claims—in this
case, that one of the disabilities from which Plaintiff Bedell allegedly suffered was alcoholism.
See Brown, 2011 U.S. Dist. LEXIS 111098, at *3 (noting that Rule 26(a)(2)(B) reports and Rule
26(a)(2)(C) summaries “share the goal of increasing efficiency and reducing unfair surprise.”).
Thus, Dr. Bishop’s expansion, in his deposition testimony, of “the facts and opinions” to which
he would testify to include an opinion that effectively added a new substantive claim cannot
serve as the basis by which the Rule 26(a)(2)(C) disclosure requirement is satisfied.
3. 	Pennypack Factors
Before levying the “extreme sanction” of excluding this evidence, the Court must
consider the Pennypack factors—including any prejudice and surprise to Defendant, Defendant’s
ability to cure, the extent allowing the evidence would disrupt the proceedings, any bad faith on
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Plaintiffs’ part, and the importance of the evidence. ZF Meritor, 696 F.3d at 298 (citing
Pennypack Woods Home Ownership Ass’n, 559 F.2d at 904–05). Upon consideration of the
Pennypack factors, and given the unique circumstances of this case, the Court will not preclude
Dr. Bishop—on timeliness grounds—from opining at trial that Plaintiff Bedell’s alleged
alcoholism constitutes a disability under the FHA.
The first Pennypack factor favors exclusion here because Defendant suffered significant
prejudice and surprise through Dr. Bishop’s untimely and improper revelation at his deposition
that Plaintiff Bedell allegedly suffers from the disability of alcoholism, given that Plaintiffs did
not previously disclose this claim. However, as to the second factor, Defendant has had ample
opportunity to cure. Dr. Bishop’s deposition was conducted approximately a year before
Defendant filed its Motion in Limine. During the deposition, Defendant’s counsel’s asked: “So it
is fair to say the disability you’re referencing is the alcohol?” and Dr. Bishop responded: “It
would be mainly the alcohol.” (Dkt. No. 139-3 at 14–15). Additionally, Dr. Bishop mentioned
Plaintiff Bedell’s alleged alcohol use at numerous other points of his Deposition. (See, e.g., id. at
3–6, 8, 11, 14, 17).6
6 Defendant argues that, when viewed in context, Dr. Bishop’s references to Plaintiff Bedell’s
alleged alcoholism were not meant to suggest that it is a disability in its own right, but rather to
illustrate that her alleged alcoholism is one of her limitations in coping with her alleged
depression, stress, and anxiety. (Dkt. No. 152). Based upon its review of Defendant’s submission
of sections of the deposition transcript, the Court disagrees with this characterization of Dr.
Bishop’s deposition testimony. Moreover, even if one were to accept Defendant’s interpretation
of Dr. Bishop’s testimony, this would not alter the Court’s conclusion because Bedell’s alleged
limitations in coping with her stress and anxiety were described in her Rule 26(a)(2)(C)
disclosure as limitations that “substantially limit her major life activities.” (Dkt. No. 115-3 at 3;
Dkt. No. 115-6). This is the definition of a handicap (or disability) under the FHA. 42 U.S.C. §
3602(h).
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Thereafter, 	the 	Court 	granted 	Defendant’s 	“Emergency 	Motion 	to 	Extend 	Expert
Discovery Deadline,” because Defendant stated that it needed to depose Dr. Hendricks to
respond to “information regarding the qualifications and methodologies (if any) used to arrive at
the ultimate opinions of Plaintiffs’ treating physicians.” (Dkt. No. 76 at 5). Thus, Defendant—
through Dr. Hendricks—had the opportunity to address the opinions expressed during the
depositions of Dr. Bishop and Plaintiffs’ other treating physicians. Further, Defendant was fully
aware of this issue for a year, but neglected to raise it until the eve of trial. Thus, because of
Defendant’s opportunity to cure, the second Pennypack factor favors allowing Dr. Bishop to
opine that Plaintiff’s Bedell’s alleged alcoholism constitutes a disability under the FHA.
With regard to the other Pennypack factors, the Court finds that Dr. Bishop’s testimony
regarding Plaintiff Bedell’s alleged alcoholism would not disrupt the proceedings and that
Plaintiffs did not act in bad faith. Further, the evidence Defendant seeks to exclude is highly
important, given the centrality of Plaintiffs’ alleged disabilities to the case.
Accordingly, given the circumstances of this case—particularly Defendant’s ample
opportunity to cure, including an extension at Defendant’s behest of the expert discovery
deadline—the Pennypack factors favor inclusion of the evidence. The Court will therefore deny
Defendant’s Motion in Limine seeking to preclude Dr. Bishop—on timeliness grounds—from
opining at trial that Plaintiff Bedell’s alleged alcoholism constitutes a disability under the FHA.7
7 The Court notes the narrowness of its holding. Although Dr. Bishop is not precluded from
opining at trial that Plaintiff Bedell’s alleged alcoholism is a disability under the FHA on the
grounds that this theory was untimely disclosed, Defendant is not foreclosed from objecting to
Dr. Bishop’s testimony relating to Plaintiff Bedell’s alleged alcoholism on other grounds, if any,
that it deems appropriate.
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Notwithstanding the Court’s ruling that Defendant had ample opportunity to cure the
problem created by Plaintiffs’ untimely disclosure, the case presents the unique circumstance
that the trial of this matter has been postponed indefinitely due to Plaintiff Bedell’s sudden
illness. Accordingly, the Court will afford Defendant an additional opportunity to cure, if it so
chooses, by providing a supplement to its expert report narrowly tailored to the issue of Plaintiff
Bedell’s alleged alcoholism as a disability under the FHA. The Court will also afford Plaintiffs
the opportunity to conduct a deposition narrowly tailored to the substance of Defendant’s
supplemental expert report.
IV. 	CONCLUSION
For the reasons stated above, the Court will deny Plaintiffs’ Motion in Limine and permit
Dr. Hendricks to opine at trial regarding Plaintiff Nelson’s need for an emotional support animal.
The Court will also deny Defendant’s Motion in Limine seeking—on grounds of untimeliness—
to preclude Dr. Bishop from opining at trial regarding Plaintiff Bedell’s alleged alcoholism as a
disability under the FHA. Given the indefinite postponement of the trial, Defendant will be given
an additional opportunity to cure by providing a supplement to its expert report, and Plaintiffs
will be afforded an opportunity to address Defendant’s supplemental report. An appropriate
Order accompanies this Memorandum Opinion.
Date: April 30, 2014 	________/s/________
WILMA A. LEWIS
Chief Judge
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