Scholl et al v. Pateder

Filing 88

ORDER granting in part and denying in part 77 Defendant's Motion to Strike and for Protective Order. Final Pretrial Conference set for 10/26/2011 at 09:30 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix. Proposed Pretrial Order due by 10/19/2011. By Magistrate Judge Kristen L. Mix on 8/22/11.(mnf, )

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 [Docket No. 77; Filed May 4, 2011] (the “Motion”). Plaintiffs filed a Response in
opposition to the Motion on August 2, 2011 [Docket No. 83] and Defendant filed on a Reply
on August 9, 2011 [Docket No. 87]. Accordingly, the matter is fully briefed and ripe for
resolution. For the reasons set forth below,
IT IS HEREBY ORDERED that the Motion is GRANTED.
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.
Scheduling Order [Docket No. 15] at 2. Defendant seeks an order precluding one of
Plaintiffs’ designated expert witnesses from testifying about his “critical, undisclosed
opinions elicited by Plaintiffs’ counsel during his depositions.” Motion [#77] at 1.
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On November 30, 2010, Plaintiffs disclosed Dr. Paul McAfee (“Dr. McAfee”) as an
expert who would testify to Defendant’s alleged negligence regarding Mr. Scholl. McAfee
Disclosure, [#77-1] at 6. Defendant conducted Dr. McAfee’s deposition on June 9, 2011.
McAfee Deposition, [#77-1] at 1. During the deposition, Plaintiff’s counsel questioned
McAfee and elicited the following opinions, among others: (1) x-rays show that there is
“bone still within the spinal canal” that is “compressing the nerves,” id. at 3; (2) because of
Mr. Scholl’s unique medical condition, “a minimally invasive TLIF should not be performed
without a full laminectomy,” id.; (3) bone fragment was “left in the foramen [of Mr. Scholl]
after [Defendant] repositioned the [S-1 pedicle spinal] screw,” id. at 4; (4) “the length of
surgery . . . was twice as long as usual,” meaning that the nerve roots were retracted “twice
as long as usual,” id.; (5) the majority of the damage in this case “was due to a glancing
blow to the nerve, a traction injury of the nerve, and also winding up tissue within the
screws and taps,” not a “direct impact injury,” id.; and (6) Defendant should have
postoperatively (a) marked “sensation in the saddle area,” (b) performed a cystometrogram
if Mr. Scholl had “numbness in the penis or problems with urination,” (c) performed a rectal
exam, and (d) performed a “neurologic assessment [of Mr. Scholl] in the recovery room,”
id. at 5.
Defendant contends that none of the six opinions listed above “are contained within
Dr. McAfee’s initial expert report.” Motion [#77] at 3. Defendant also contends that
because “these opinions have not previously been timely disclosed by Plaintiffs, this Court
should preclude Dr. McAfee from testifying on these issues at trial.” Id.
II. Analysis
Pursuant to Fed. R. Civ. P. 26(a)(2), “a party shall disclose to other parties the
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identity of any person who may be used 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 to be expressed and the basis and
reasons therefor.” 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.” Id. 26(e) “A party that without substantial justification fails to
disclose information required by Rule 26(a) . . . is not, unless such failure is harmless,
permitted to use as evidence at a trial . . . any . . . information not so disclosed.” Id.
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).
A.

Dr. McAfee’s Disclosure Does Not Comply with Rule 26(a)(2).

Rule 26(a)(2) requires “a complete statement of all opinions to be expressed and the
basis and reasons therefor.” Fed. R. Civ. P. 26(a)(2). Therefore, expert disclosures must
be “detailed and complete,” and not “sketchy and vague.” Id. Advisory Committee’s Note;
accord Fiber Optic Designs, Inc. v. New England Pottery, LLC, 262 F.R.D. 586, 595 (D.
Colo. 2009) (“The written [expert] report should explain ‘how’ and ‘why’ the expert reached
the opinions he or she intends to offer at trial.”); 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.” Dixie Steel Erectors, Inc. V. Grove U.S.,
LLC, No. cv-04-390-F, 2005 WL 3558663, at *9 ( W.D.Okl. Dec. 29, 2005) (unreported
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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
Intern, Corp., 580 F. Supp. 2d 1071, 1121-22 (D. Colo. 2006).
In their Response, Plaintiffs admit that opinions one and three, see supra p. 2, are
not contained in Dr. McAfee’s report. Response [#83] at 9-10. Plaintiffs also recognize that
opinions two and six, see supra p. 2, differ from the opinions contained in Dr. McAfee’s
report but contend that they are reasonable elaborations of the earlier opinions. Response
[#83] at 11-13, 17-18. Plaintiffs do not appear to address whether Dr. McAfee’s report
contains a reference to opinion four, namely that the length of the surgery was a cause of
the injury. Lastly, Plaintiffs contend that opinion five, see supra p. 2, is well accounted for
in Dr. McAfee’s report. Response [#83] at 14-17.
The Court has compared Dr. McAfee’s expert report with his deposition testimony,
and there is no doubt that the deposition contains new opinions that were not previously
disclosed. As noted above, Defendant alleges that there were six opinions given during Dr.
McAfee’s deposition that were not contained in his expert report. Motion [#77] at 2-3. I find
that opinions one, two, three, four, and six are not properly accounted for in Dr. McAfee’s
expert report.1 Opinions one and three relate to bone fragment alleged to be the cause of
Mr. Scholl’s pain. Opinion four relates to the length of surgery. Dr. McAfee’s report does

1

Opinion five is contained in Dr. McAfee’s expert disclosure. Opinion five states that the
alleged misplaced screw caused a “traction injury of the nerve,” and not a “direct impact injury.”
McAfee’s Deposition, [#77-1] at 4. This opinion is represented in the report, and thus not a
violation of Rule 26(a)(2), as Dr. McAfee noted in his report that “the screw was in close
proximity to the nerve roots,” and that this was “the likely cause of Mr. Scholl’s neurologic
injuries.” McAfee’s Disclosure [#77-1] at 7-8.

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not reference these opinions in any respect.
Opinion two relates to the type of procedure performed (“TLIF procedure”) and
states that it was improper to perform a TLIF procedure without a full laminectomy. This
opinion differs from the opinion contained in Dr. McAfee’s report, which states only that Mr.
Scholl was not a good candidate for a TLIF procedure because he suffered from spinal
stenosis. See Motion [#77] at 6. While the opinion expressed by Dr. McAfee at his
deposition could be broadly construed as an extension of the opinion contained in his
report, the Court finds it is a new opinion not reflected in the disclosed report because it
directly relates to alleged negligence by Defendant in performing a TILF procedure.
Opinion six relates to Plaintiff’s alleged lack of proper postoperative care and
outlines many specific medical procedures Defendant should have performed but did not.
Although this opinion is partly represented in Dr. McAfee’s report, which states that if a
patient “experiences positive neurologic symptoms after this type of surgery . . . further
diagnostic work-up should be employed . . . [such as] . . . a postoperative CT scan,”
McAfee’s Disclosure [#77-1] at 7, the disclosure is in no way comprehensive and does not
include the myriad other bases provided by Dr. McAfee in his deposition to suggest that
Defendant’s postoperative care was deficient. Because Dr. McAfee’s disclosure only
provides a “sketchy and vague” report, and not a “detailed and complete” report as to the
type of postoperative care Mr. Scholl allegedly should have received, the report does not
sufficiently disclose the opinion offered during Dr. McAfee’s deposition that Defendant’s
postoperative care was allegedly deficient because he failed to take certain and specific
actions. See Fed. R. Civ. P. 26(a)(2) Advisory Committee’s Note.
Recognizing that certain opinions were not contained in Dr. McAfee’s report in full
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or in part, Plaintiffs contend that (1) any failure to disclose Dr. McAfee’s opinions in his
report was appropriately rectified by providing this information in his deposition and (2)
therefore, any failure was harmless. Response [#83] at 9-18. The Court address each
contention below.
As a preliminary matter, despite Plaintiffs’ contention that disclosure of additional
opinions during an expert’s deposition cures any failure to disclose the opinion in the
expert’s report, I note that “Rule 26(a)(2) does not allow parties to cure deficient expert
reports by supplementing them with later deposition testimony.” Ciomber v. Coop. Plus,
Inc., 527 F.3d 635, 642 (7th Cir. 2008); see also Fiber Optic Designs v. New England
Pottery , LLC, 262 F.R.D. 586, 595 (D. Colo. 2009) (“A deficient expert report should be
met with a motion to supplement or a motion to compel, not a notice of deposition”). Thus,
to the extent that Plaintiffs argue that Dr. McAfee’s disclosure does not violate Rule
26(a)(2) because the undisclosed opinions were elicited by Plaintiffs’ counsel during
McAfee’s deposition, the argument is rejected. Accordingly, I find that Dr. McAfee’s
disclosure does not comply with Rule 26(a)(2) because the disclosure is not a “complete
statement of all opinions to be expressed and the basis and reasons therefor.” Fed. R. Civ.
P. 26(a)(2). Specifically, the report does not adequately reference opinions one, two, three,
four, and six. Moreover, this deficiency cannot be said to have been cured through the
elicitation of deposition testimony.
B.

Plaintiff’s Failure to Provide a Timely and Complete Expert Report Is
Not Substantially Justified or Harmless.

Pursuant to Fed. R. Civ. P. 37(c)(1), “[i]f a party fails to provide information . . . as
required by Rule 26(a) or (e), the party is not allowed to use that information . . . to supply
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evidence . . . at 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 first Woodworker’s factor, the Court finds that Defendant is
prejudiced by Dr. McAfee’s deficient expert report. Expert disclosures are intended not only
to identify the expert witness, but also “to set forth the substance of the direct examination.”
Fed. R. Civ. P. 26(a)(2) Advisory Committee’s Note. This disclosure is necessary to allow
the opposing party “a reasonable opportunity to prepare for effective cross examination and
perhaps arrange for expert testimony from other witnesses.” Id. “Thus, to avoid prejudice
[Plaintiff] need[s] to know the substance of the expert’s testimony.” Jacobsen v. Deseret
Book Co., 287 F.3d 936, 953 (10th Cir. 2002). After reviewing Dr. McAfee’s report
compared to his deposition, “it appears likely the expert’s testimony at trial will contain
substantially more information than was presented in the expert reports. . . . [Thus, the
Court] cannot agree [Plaintiff] would not be prejudiced.” Id. Stated another way, Defendant
is clearly prejudiced due to the fact that the expansion and revision of Dr. McAfee’s opinion
was not available to Defendant’s experts while they were preparing their own reports and,
consequently, they were not able to sufficiently rebut those opinions when their reports
were submitted.
As for the second and third Woodworker’s factors, the Court recognizes that a final
pretrial conference and trial date have not yet been set. While “[t]he absence of a fixed trial
date affords a greater ability to cure any prejudice to the parties and minimizes the
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possibility of future disruption of the District Court’s docket,” I find that the prejudice to
Defendant cannot be cured so readily here. Hertz v. Luzenac Am., Inc., No. 04-cv-01961LTB-CBS, 2006 WL 994431, at *21 (D. Colo. Apr. 13, 2006) (unreported decision).
Specifically, given the close of discovery, this case should be proceeding toward trial.
Instead, due to that fact that Defendant has already submitted rebuttal expert disclosures
on the basis of Dr. McAfee’s deficient expert report and that depositions have been held,
discovery would need to be reopened to address Plaintiffs’ failure to comply with their
disclosure requirements.
To the extent that Plaintiffs contend that mere supplementation of Dr. McAfee’s
report would cure the prejudice, the Court notes that “[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”)).2 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 the bounds of permissible supplementation and is subject to exclusion
under Rule 37(c).” Cook, 580 F. Supp. 2d at 1170. “To rule otherwise would create a

2

To the extent that Plaintiffs vaguely contend that Dr. McAfee was not “aware” of certain
information at the time he drafted his report, Plaintiffs do not contend that such information was
unavailable to him to justify supplementation.

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system where preliminary [expert] reports could be followed by supplementary reports and
there would be no finality to expert reports, as each side, in order to buttress its case or
position, could ‘supplement’ existing reports and modify opinions previously given.” Id.
(citing Beller v. United States, 221 F.R.D. 689, 695 (D.N.M. 2003). “This result would be
the antitheses of the full expert disclosure requirements stated in Rule 26(a).” Id.
Here, if the Court allowed Plaintiffs to supplement Dr. McAfee’s original expert
report with the five opinions at issue, the supplemental report would contain new and
additional opinions not disclosed in his initial expert disclosure. As noted above, “[a]llowing
the use of new materials even to support existing opinions could trigger an endless wave
of supplemental reports and the need for additional depositions. . . . It is this type of
supplementation that Rule 37 is designed to prevent.” Hayes v. Smithkline Beecham Corp.,
No. 07-cv-682-CVE-TLW, 2009 WL 3415210, at *2 (N.D. Okla. Oct. 22, 2009) (unreported
decision) (citing Cook, 580 F. Supp. 2d at 1170). Moreover, inappropriately using a
deposition to disclose opinions that should have been disclosed earlier does not cure a
deficient expert report. See Fiber Optic Designs, 262 F.R.D. at 595. Given that Plaintiffs’
expert disclosure violations essentially require expert discovery to start anew as it relates
to Dr. McAfee’s opinions and any rebuttal opinions, including the provision of new reports
and the reopening of depositions, I find that the prejudice to Defendant cannot be readily
cured.
Turning to the fourth Woodworker’s factor, there is no clear evidence on this record
that Plaintiffs’ conduct was willful or committed in bad faith. However, given the multiple
issues presented in this case to date regarding Plaintiffs’ failure to comply with basic expert
discovery rules, Plaintiffs’ latest failure is not well taken. Nevertheless, while Plaintiffs’
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conduct can be characterized as sloppy, sloppiness does not necessarily equate to bad
faith. See United States v. Lain, 640 F.3d 1134, 1139 (10th Cir. 2011) (“Sloppy work alone
does not support a claim of . . . bad faith . . . .”). Regardless, “the lack of bad faith alone
may not be enough to overcome the other elements of the Woodworker’s test. Plaintiff[s]
should not be permitted to ignore [their] disclosure obligations and then avoid sanctions
simply by claiming [their] deficiencies were not willful.” Fresquez v. Baldwin, No. 08-cv01233-CMA-CBS, 2010 WL 5934891, at *17 (D. Colo. Dec. 15, 2010) (unreported decision)
(citing Jacobsen, 287 F.3d at 955).
Upon consideration of the Woodworker’s factors, I find that the prejudice to
Defendant and the unwieldiness and unnecessary expense of curing such prejudice weigh
in favor of finding that Plaintiffs’ violation of Rule 26(a)(2) is not substantially justified or
harmless.

See Sender v. Mann, 225 F.R.D. 645, 656 (D. Colo. 2004) (noting that

noncompliance is not harmless when prejudice which cannot be readily cured is present).
Accordingly, Dr. McAfee may testify only as to those opinions found in his November 2010
expert report. Specifically, this decision means that Dr. McAfee may not testify about
opinions one, two (to the extent that opinion two goes beyond opining on Mr. Scholl’s
candidacy for a TLIF procedure), three, four, and six (to the extent that opinion six goes
beyond the necessity of conducting a CT scan) as described in this Order. See supra pp.
2-5.
III. Conclusion
IT IS HEREBY ORDERED that Defendant’s Motion to Strike and for Protective Order
[#77] is GRANTED in part and DENIED in part. It is granted as to the exclusion of

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opinions one, two, three, four, and six as set forth above. It is denied in all other respects.
Due to the close of discovery and the expiration of the dispositive motions deadline with no
motions being filed,
IT IS FURTHER ORDERED that a Final Pretrial Conference is set for October 26,
2011 at 9:30 a.m. in Courtroom C-204, Second Floor, Byron G. Rogers United States
Courthouse, 1929 Stout Street, Denver, Colorado.
IT IS FURTHER ORDERED that the proposed pretrial order shall be submitted on
or before October 19, 2011. The proposed pretrial order to be submitted to the Magistrate
Judge under the ECF Procedures may be submitted in WordPerfect or pdf format and shall
be emailed to the Magistrate Judge at [e-mail].
Attorneys and/or pro se parties not participating in ECF shall submit their proposed
pretrial order on paper to the Clerk’s Office.

However, if any party in this case is

participating in ECF, it is the responsibility of that party to submit the proposed pretrial order
pursuant to the District of Colorado ECF Procedures.
The parties shall prepare the proposed pretrial order in accordance with the
form which may be downloaded in richtext format from the forms section of the
court’s website at www.co.uscourts.gov. Instructions for downloading in richtext
format are posted in the forms section of the website.
Dated: August 22, 2011
BY THE COURT:
s/ Kristen L. Mix
Kristen L. Mix
United States Magistrate Judge

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