Scholl et al v. Pateder

Filing 105

ORDER denying 101 Defendant's Motion to Strike and for Protective Order with Respect to Supplemental Opinion by Dr. Patricia Pacey. By Magistrate Judge Kristen L. Mix on 6/20/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:09-cv-02959-PAB-KLM
TODD E. SCHOLL, and
CARLA SCHOLL,
Plaintiffs,
v.
DHRUV B. PATEDER, M.D.,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion to Strike and for
Protective Order with Respect to Supplemental Opinion by Dr. Patricia Pacey [Docket
No. 101; Filed April 27, 2012] (the “Motion”). Plaintiffs filed a Response in opposition to the
Motion on May 17, 2012 [#103], and Defendant filed on a Reply on May 23, 2012 [#104].
Accordingly, the matter is fully briefed and ripe for resolution. For the reasons set forth
below,
IT IS HEREBY ORDERED that the Motion is DENIED.
I. Procedural Background
This is a medical malpractice action arising from a surgical procedure performed by
Defendant on Plaintiff Todd E. Scholl (hereinafter, “Mr. Scholl”) in December of 2009.
Sched. Ord., [#15] at 2. The Court entered a Final Pretrial Order on October 26, 2011
[#99], and trial is scheduled to commence on October 1, 2012 [#100]. In the instant Motion,
Defendant seeks an order excluding from consideration the supplemental expert report of
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Plaintiffs’ economic expert, Dr. Patricia Pacey, which was served on March 19, 2012, the
day before the parties’ scheduled mediation on March 20, 2012. [#101] at 2. Defendant
contends that the supplemental report is untimely. Id. at 8. Further, Defendant argues that
the supplemental report demonstrates that the initial report was incomplete, because the
supplemental report indicates that Dr. Pacey reviewed additional documentation that had
been available to her at the time she authored the initial report, but which was not included
in the initial report. Id. at 8, 11. Defendant avers that he will suffer prejudice if Plaintiffs are
permitted to present testimony regarding the content of the supplemental report, and asks
the Court to enter a protective order “prohibiting Plaintiffs from eliciting testimony outside
Plaintiffs’ initial expert disclosure.” Id. at 12.
In their Response, Plaintiffs represent that the purpose of Dr. Pacey’s supplemental
report was to adjust the calculations stated in the initial expert report to reflect the business
losses experienced by Mr. Scholl in 2011. See [#103]. Plaintiffs explain that Dr. Pacey
relied on Mr. Scholl’s 2011 business tax records as the basis for the adjustments, and that
the other documents listed on the supplemental report were utilized as comparison sources
to ensure that the tax records were correct. Id. at 6. Plaintiffs attest that Defendant
received copies of Mr. Scholl’s 2011 business tax records on March 1, 2012, and again on
May 8, 2012. Id. at 4. Dr. Pacey sent her supplemental report to Plaintiffs on March 19,
2012, and Plaintiffs forwarded the report to Defendant on the same date. Id. at 5. Plaintiffs
aver that Defendant declined to depose Dr. Pacey during the discovery period, declined to
meet with her regarding the supplemental report, and declined to designate a rebuttal
expert witness, thus Defendant’s claim of prejudice is simply “gamesmanship.” Id. at 4-5,
7.

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In Reply, Defendant reiterates his position that allowing Plaintiffs to present
testimony based on the supplemental report is prejudicial. See [#104].

Defendant

expresses doubt regarding the veracity of Plaintiffs’ counsel’s statements (albeit without
any evidentiary support or factual development), and attests that he is unable to verify
counsel’s representations for himself, as discovery is closed. Id. at 5. Defendant claims
that Dr. Pacey is impermissibly strengthening her initial report with the supplemental report,
and Plaintiff should not “be forced to bear the burden of curing the deficient initial report or
Supplemental Report.” Id. at 8.
II. Analysis
Pursuant to Fed. R. Civ. P. 26(a)(2), “a party must disclose to the other parties the
identity of any witness it may use at trial to present . . . [expert testimony, and the
disclosure must] be accompanied by a written report . . . prepared and signed by the
witness[,] . . . contain[ing] a complete statement of all opinions the witness will express and
the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2). Supplemental disclosures may
be required if the disclosing party “learns that in some material respect the disclosure or
response is incomplete or incorrect.” Fed. R. Civ. P. 26(e). “If a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not allowed
to use 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). “The
determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the
broad discretion of the district court.” Woodworker’s Supply, Inc. v. Principal Mut. Life Ins.
Co., 170 F.3d 985, 993 (10th Cir. 1999).
Pursuant to Rule 26(e)(2), expert disclosures must be “detailed and complete,” and
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not “sketchy and vague.” See Fiber Optic Designs, Inc. v. New England Pottery, LLC, 262
F.R.D. 586, 595 (D. Colo. 2009) (citations omitted) (collecting cases); Hilt v. SFC, Inc., 170
F.R.D. 182, 185 (D. Kan. 1997) (“The report must provide the substantive rationale in detail
with respect to the basis and reasons for the proffered opinions. It must explain factually
why and how the witness has reached them”). An expert report must be “comprehensive”
and a “definitive disclosure of the testimony . . . of the expert.” Smith v. Miller, No. 11-cv00613-REB-KLM, 2011 WL 6020578, at *2 (D. Colo. Dec. 5, 2011) (citing Dixie Steel
Erectors, Inc. v. Grove U.S., LLC, No. CIV-04-390-F, 2005 WL 3558663, at *9 (W.D. Okla.
Dec. 29, 2005) (unreported decision)). However, an expert report need not necessarily
contain “sufficient information and detail for an opposing expert to replicate and verify in all
respects both the method and results described in the report,” in order to be found to be
complete. Cook v. Rockwell Int’l Corp., 580 F. Supp. 2d 1071, 1121-22 (D. Colo. 2006).
As stated, supplementation of a Rule 26(a) disclosure must be made “in a timely
manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect.” Fed. R. Civ. P. 26(e). “A plain reading of Fed. R. Civ. P. 26(e)(1)
suggests that a supplemental expert report should be based upon additional or corrective
information that was not available at the time of the expert’s original report.” SEC v.
Nacchio, No. 05-cv-00480-MSK-CBS, 2008 WL 4587240, at *3 (D. Colo. Oct. 15, 2008)
(unreported decision) (citing Minebea Co. v. Papst, 231 F.R.D. 3, 6 (D.D.C. 2005) (stating
that Rule 26(e)(1) “permits supplemental reports only for the narrow purpose of correcting
inaccuracies or adding information that was not available at the time of the initial report”)).
Moreover, “a supplemental expert report that states additional opinions or rationales or
seeks to ‘strengthen’ or ‘deepen’ opinions expressed in the original expert report exceeds
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the bounds of permissible supplementation and is subject to exclusion under Rule 37(c).”
Cook, 580 F. Supp. 2d at 1170.
Here, inspection of Dr. Pacey’s supplemental report demonstrates to the Court that
the review of Mr. Scholl’s 2011 business tax records and inclusion of the information stated
therein was not only reasonable, but also required by Rule 26(e)(2). See, e.g., Pease v.
Lycoming Engines, No. 4:10-cv-00843, 2012 WL 162551, at *8 (M.D. Pa. Jan. 19, 2012)
(finding an obligation to supplement initial disclosures with tax returns demonstrating “lost
earning capacity”); In re EBW Laser, Inc., Bankr. No. 05-10220C-7G, 2010 WL 2382940,
at *7 (M.D.N.C. June 14, 2010) (finding diligence when counsel acted promptly by obtaining
tax returns, providing returns to expert witnesses, and providing supplemental reports and
tax returns to opposing counsel within six months); Harris Wayside Furniture Co. v. Idearc
Media Corp., No. 06-cv-392-JM, 2008 WL 7109357, at *4 (D.N.H. Dec. 22, 2008)
(accepting tax returns as basis for supplemental expert report regarding decrease in sales).
Defendant is correct that the figures stated in the supplemental report differ from those
stated in the initial report, but the Court is not alarmed by the discrepancy, in consideration
of the assertion that Mr. Scholl experienced business losses in 2011. The difference in
calculation indicates that the initial report was incomplete due to the change in the market
for Mr. Scholl’s business through the duration of this lawsuit. The incompleteness of the
initial report under these circumstances is precisely what Rule 26(e) is intended to correct;
the corresponding need for an adjustment to the calculations in the initial report arising from
the change in the market is properly achieved by supplementation pursuant to Rule 26(e),
particularly because the 2011 tax information was not available at the time of the initial
report, which is dated November 30, 2010. See [#101-1].
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Regarding the timing of the supplementation, a party is under the ongoing duty to
supplement a Rule 26(a)(2) expert report with “[a]ny additions or changes . . . by the time
the party’s pretrial disclosures under Rule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2).
Pursuant to D.C. Colo. LCivR 26.1B., “[t]he tendering of a proposed final pretrial order . .
. shall satisfy the requirement of Fed. R. Civ. P. 26(a)(3) that pretrial disclosures be filed
with the court.” Thus, in this case, any supplementation was due on or before October 21,
2011. See [#97]. Therefore, Dr. Pacey’s supplemental report is untimely, regardless of the
diligence exercised by Plaintiffs’ counsel in obtaining the tax records, providing the tax
records to Dr. Pacey, obtaining Dr. Pacey’s supplemental report, and providing the
supplemental report to Defendant, all of which appears to have occurred in March 2012.
See [#103] at 4.
Pursuant to Fed. R. Civ. P. 37(c)(1), “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not allowed to use 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.” The Tenth Circuit considers four factors
in determining whether the failure to disclose is substantially justified or harmless: (1) the
prejudice or surprise to the impacted party, (2) the ability to cure the prejudice, (3) the
potential for trial disruption, and (4) the erring party’s bad faith or willfulness. Woodworker’s
Supply, Inc., 170 F.3d at 993.
Considering the Woodworker factors, the Court finds that the technical untimeliness
of the supplemental report is harmless. Defendant had notice of the tax records and the
possibility that Dr. Pacey could supplement her opinion, see [#103-5] (letter dated March
12, 2012), and trial is not scheduled to commence until October 1, 2012, see [#100].
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Further, considering the diligence of Plaintiffs’ counsel in facilitating the supplemental
report, the Court finds that Plaintiffs did not act in bad faith or with willful disregard for the
case management schedule.

Nevertheless, even though the untimely disclosure is

harmless, the Court will permit a second bite at the apple for Defendant, as any potential
prejudice may be cured by a limited deposition of Dr. Pacey.1 The Court will afford
Defendant another opportunity to conduct a deposition of Dr. Pacey, for no more than three
hours, to be completed on or before July 20, 2012.
III. Conclusion
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Strike and for Protective
Order with Respect to Supplemental Opinion by Dr. Patricia Pacey [#101] is DENIED.
IT IS FURTHER ORDERED that, at his own expense, Defendant may conduct a
deposition of Dr. Pacey for no more than three hours on or before July 20, 2012, regarding
her initial and supplemental expert reports.
Dated: June 20, 2012

1

It is uncontested that Defendant had the opportunity to depose Dr. Pacey during the
discovery period, but declined to do so. See [#103] at 4, ¶ 3.

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