United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
has moved to extend the deposition deadline as to Dr. Sunil
Bansal and to declare Dr. Bansal as unavailable for trial.
(Filing No. 58). For the reasons stated below, the
court finds that for the purposes of his intended testimony,
Dr. Bansal was not untimely disclosed as a witness and
Defendant has shown good cause for deposing him beyond the
deposition deadline. As to whether Dr. Bansal will be
permitted to testify by deposition at trial, if Dr. Bansal
must testify live, the trial date will be re-set to
accommodate his schedule.
September 10, 2013, Defendant extended an offer to employ
Plaintiff as a warehouse supervisor, provided Plaintiff
passed a physical examination indicating he was capable of
performing the job. As to Defendant, pre-employment physical
examinations are performed by Horizon Rehabilitation &
Occupational Care Center (“Horizon”).
Plaintiff's examination was performed on September 13,
2013, and at that time, Plaintiff completed a physical
questionnaire listing of his medical conditions and
restrictions. On the questionnaire, Plaintiff stated he was
unable to perform over-head or “out-in- front”
work with his arms, and he could not lift more than 50
pounds. The examination confirmed these restrictions, and
claims that to perform the essential functions of the
warehouse supervisor position, the employee must be able to
regularly and frequently:
• lift up to and above fifty pounds;
• perform overhead work;
• perform out-in-front of body work;
• exert up to seventy-five pounds of force occasionally;
• bend, squat, walk, stand, and reach.
(Filing No. 37 at CM/ECF p. 16, ¶ 41). After
considering Plaintiffs restrictions, Defendant retracted its
days later, on September 16, 2013, Plaintiff was examined by
Doctor Sunil Bansal (“Bansal”), for a workers
compensation case against a different employer. (Filing
No. 47-2). During this examination, Plaintiff described
the following subjective symptoms and limitations:
Plaintiff reported or demonstrated decreased range of motion
when turning his head ...