Annette Campbell v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:10-cv-00363-JRS-DWD Copies to all parties and the district court/agency. [998760465]. Mailed to: Robin Perrin Meier. [11-1554]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1554

ANNETTE CAMPBELL, Administrator of the Estate of Loyd H.
Campbell, Deceased,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Chief
District Judge. (3:10-cv-00363-JRS-DWD)

Submitted:

December 16, 2011

Decided:

January 9, 2012

Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brenda L. Page, Alan F. Duckworth, PAGE LAW FIRM, P.C.,
Richmond, Virginia, for Appellant.
Neil H. MacBride, United
States Attorney, Jonathan H. Hambrick, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Annette Campbell filed a wrongful death action against
the United States of America pursuant to the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680 (2006), alleging that
medical

staff

at

Medical

Center”)

the

Veterans

acted

Affairs

negligently

Medical

while

Center

providing

(“VA

dialysis

treatment to her husband, Lyod Campbell, resulting in his death.
Campbell

appeals

the

district

court’s

orders

excluding

her

expert witness, dismissing her complaint, and denying her motion
to alter or amend judgment.
find no reversible error.
We

review

We have reviewed the record and

Accordingly, we affirm.

the

district

court’s

exclusion

plaintiff’s expert witness for an abuse of discretion.
Deeds, 453 F.3d 593, 601 (4th Cir. 2006).

of

a

Carr v.

Rule 26(a)(2) of the

Federal Rules of Civil Procedure imposes specific requirements
for

the

disclosure

period.

A

provided

by

of

plaintiff
a

expert
must

court’s

26(a)(2)(C) (2010).

testimony

disclose

pretrial

during

the

her

expert

by

order.

Fed.

R.

discovery
the
Civ.

date
P.

In addition, an expert witness’s report

must contain:
(i) a complete statement of all opinions the witness
will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in
forming them; (iii) any exhibits that will be used to
summarize
or
support
them;
(iv)
the
witness's
qualifications, including a list of all publications
authored in the previous 10 years; (v) a list of all
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other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by
deposition; and (vi) a statement of the compensation
to be paid for the study and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B).
written

in

a

manner

that

Thus, “the expert report should be
reflects

the

witness is expected to give at trial.”

testimony

the

expert

Sharpe v. United States,

230 F.R.D. 452, 458 (E.D. Va. 2005).
Pursuant

to

Rule

37(c)(1),

a

party

who

fails

to

properly designate an expert witness as required by Rule 26(a)
may

not

use

the

expert

at

trial,

“unless

substantially justified or harmless.”

the

failure

was

Fed. R. Civ. P. 37(c)(1).

The party facing sanctions carries the burden of showing that
the failure to comply with Rule 26(a) was either substantially
justified or harmless.

Carr, 453 F.3d at 602.

In determining

whether a party’s failure to properly designate an expert was
“substantially justified or harmless,” a court should balance:
(1) the surprise to the party against whom the evidence would be
offered; (2) the ability of that party to cure the surprise; (3)
the extent to which allowing the explanation would disrupt the
trial;

(4)

the

importance

of

the

evidence;

and

(5)

the

nondisclosing party’s explanation for its failure to disclose
the

evidence.

S.

States

Rack

&

Fixture,

Inc.

Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).

3

v.

Sherwin-

The district

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court has “broad discretion to determine whether a nondisclosure
of evidence is substantially justified or harmless.”

Id.

Campbell filed her expert designation, identifying Dr.
Moffatt as her proposed expert, on December 7, 2010, five days
after the deadline set forth in the district court’s scheduling
order.

The

district

court

found

Campbell’s

expert

report

deficient, as Dr. Moffatt failed to delineate the applicable
standard of care, discuss the issue of causation, explain the
factual basis for his conclusions, or reveal the records that he
reviewed, as required by Rule 26(a).

The district court also

held that Campbell failed to show her failure was “substantially
justified
pursuant
proposed

or
to

harmless,”
Rule

expert

thereby

37(c)(1).
witness,

excluding

Having
the

her

excluded

district

expert

witness

Campbell’s

court

only

granted

the

Government’s motion for summary judgment, and denied Campbell’s
subsequent motion to alter or amend its judgment.
On

appeal,

Campbell

argues

that

the

district

court

erred by failing to consider less drastic sanctions, such as
sanctioning

her

attorney.

However,

Campbell’s

argument

is

misplaced; as we have previously held, and as the language of
Rule 37(c)(1) evidences, the Federal Rules impose an “automatic
sanction” of exclusion of a party’s expert witness for failure
to adhere to the expert witness requirements set forth in Rule
26(a).

See Southern States, 318 F.3d at 592 n.2 (“The Rule
4

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37(c)

advisory

sanction

of

Date Filed: 01/09/2012

committee
exclusion

notes

Page: 5 of 10

emphasize

provides

a

that

strong

the

automatic

inducement

for

disclosure of material that the disclosing party would expect to
use

as

evidence.”)

omitted).

(internal

Therefore,

the

quotation

district

marks

court

did

and
not

citation
abuse

its

discretion in failing to consider less drastic sanctions than
exclusion of Campbell’s expert witness, as Rule 37(c) requires
exclusion unless the party establishes substantial justification
or harmlessness.
Campbell

next

asserts

that

the

district

court

erroneously applied the factors set forth in Southern States to
determine

whether

Campbell’s

justified or harmless.”

failure

was

“substantially

In an attempt to justify the deficiency

of her December 7 report, Campbell argues that the Government’s
“hide the ball tactics” prevented her from preparing an adequate
expert

designation.

defendant,

Campbell

With

respect

asserts

that,

to

the

surprise

although

Dr.

to

the

Moffatt’s

December 7 report did not address the standard of care or the
issue

of

causation,

the

Government

requirements from his report.
surprise

suffered

by

the

could

“infer”

these

Further, Campbell argues, any

Government

was

cured

by

Campbell’s

January 14, 2011 supplement, which included a new report from
Dr. Moffatt and fifty-seven pages of exhibits.

5

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As
Campbell’s
designate
harmless.”

the

Date Filed: 01/09/2012

district

arguments
an

do

expert

court

not

Page: 6 of 10

correctly

establish

witness

was

that

found,
her

“substantially

however,

failure

to

justified

or

Although Campbell correctly notes the importance of

her expert witness, as her medical malpractice case hinged upon
his testimony, the other Southern States factors weigh against
Campbell.

The surprise suffered by the Government due to the

deficiency of Campbell’s December 7 report was great; pursuant
to Rule 26(b)(4)(A), the Government could not depose Dr. Moffatt
until Campbell provided an adequate expert report.

At the time

of the motion in limine hearing, trial was scheduled to begin in
less

than

thirty

days,

and

deposition

witness had not yet occurred.

of

Campbell’s

expert

As this court has previously

emphasized, “A party that fails to provide [expert] disclosures
unfairly inhibits its opponent's ability to properly prepare,
unnecessarily prolongs litigation, and undermines the district
court's

management

of

the

case.”

Saudi

v.

Northrop

Grumman

Corp., 427 F.3d 271, 278-79 (4th Cir. 2005) (internal quotation
marks and citation omitted).

Further, although Campbell asserts

that she was unable to prepare an adequate expert designation
due to the Government’s refusal to provide meaningful discovery
responses,

counsel

for

Campbell

candidly

admitted

to

the

district court that her failure to properly designate an expert

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witness in compliance with Rule 26(a) was her own mistake, not
attributable to the Government’s wrongdoing.
Moreover,
serve

to

“cure”

Campbell’s
the

January

deficiencies

14

of

supplement

her

did

original

not

report.

Although Campbell did not obtain court leave to file her January
14, 2011 supplement, more than a month after the December 2,
2010

deadline,

Campbell

contends

that

her

supplement

was

properly before the court because she was under a “continuing
duty” pursuant to Fed. R. Civ. P. 26(e)(1) to supplement her
December 7 report.

However, Campbell miscomprehends the Federal

Rules; Rule 26(e) envisions supplementation “to add additional
or corrective information.”

Sharpe, 230 F.R.D. at 462.

“To

construe [Rule 26(e)] supplementation to apply whenever a party
wants

to

bolster

or

submit

additional

expert

opinions

would

[wreak] havoc in docket control and amount to unlimited expert
opinion

preparation.”

Id.

Because

Campbell’s

January

14

supplement did not simply add or correct information, but rather
attempted to

recast

Dr.

Moffatt’s

initial

opinions

so

as

to

comply with the requirements of Rule 26(a), it does not fall
within the bounds of Rule 26(e)(1).

Thus, Campbell failed to

establish that her failure to designate an expert witness was
“substantially
37(C)(1).

justified

or

harmless,”

as

required

by

Rule

Accordingly, the district court did not abuse its

discretion in excluding Campbell’s expert witness.
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The

Date Filed: 01/09/2012

district

reviewed de novo.

court’s

Page: 8 of 10

grant

of

summary

judgment

is

Jennings v. Univ. of North Carolina, 482 F.3d

686, 694 (4th Cir. 2007) (en banc).

Summary judgment shall be

granted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.”

Fed. R. Civ. P. 56(a).

“Where the record taken

as a whole could not lead a rational trier of fact to find for
the

nonmoving

party,

there

is

no

genuine

issue

for

trial.”

Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation
marks and citation omitted).
Virginia law, which governs Campbell’s claim, ∗ requires
a plaintiff suing for medical malpractice to demonstrate: (1)
the applicable standard of care; (2) breach of that standard of
care; and (3) that the breach proximately caused the plaintiff’s
injuries.
Va. 2007).
act

or

Parker v. United States, 475 F.Supp.2d 594, 598 (E.D.
Absent the rare case in which the alleged negligent

omission

is

clearly

within

the

common

knowledge

of

laymen, “expert testimony is ordinarily necessary” to establish
these

elements.

omitted).

Id.

(internal

quotation

marks

and

citation

Without an expert witness, Campbell was unable to

∗

As the alleged negligence occurred in Virginia, Campbell’s
lawsuit is governed by Virginia law.
See 18 U.S.C. § 1346(b)
(indicating that FTCA claims are governed by the “law of the
place where the act or omission occurred”).

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establish a prima facie case of medical malpractice.

As there

was no genuine dispute as to any material fact, the district
court did not err in granting the Government summary judgment.
Finally, we review the denial of a Fed. R. Civ. P. 59
motion to alter or amend a judgment for abuse of discretion.
Sloas v. CSX Transp., Inc., 616 F.3d 380, 388 (4th Cir. 2010).
The district court “necessarily abuses its discretion when it
makes an error of law.”
140,

160

(4th

Cir.

Id.

(citing Wolfe v. Johnson, 565 F.3d

2009)).

“There

are

three

grounds

for

amending an earlier judgment: (1) to accommodate an intervening
change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.”

Pacific Ins. Co. v. Am. Nat’l Fire

Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (citation omitted).
On appeal, Campbell fails to highlight a change in controlling
law, present new evidence, or identify a clear error of law.
Accordingly, we conclude that the district court did not abuse
its discretion in denying Campbell’s motion to alter or amend
judgment.
We
dispense

affirm

with

oral

the

judgment

argument

of

the

because

9

district

the

facts

court.
and

We
legal

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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

10