Duffy v. Lawrence Memorial Hospital
MEMORANDUM AND ORDER denying 236 Defendant/Counterclaimant Lawrence Memorial Hospital's Motion to Strike Plaintiff's Non-Retained Experts. No later than 11/3/2017, Plaintiff shall supplement her disclosure related to the CMS witnesses or advise Defendant that the witnesses have not cooperated in providing information necessary for such disclosure. Signed by Magistrate Judge Teresa J. James on 10/31/2017. (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAWRENCE MEMORIAL HOSPITAL,
Case No. 2:14-cv-2256-SAC-TJJ
MEMORANDUM AND ORDER
This matter is before the Court on Defendant/Counterclaimant Lawrence Memorial
Hospital’s Motion to Strike Plaintiff’s Non-Retained Experts (ECF No. 236). Pursuant to
Federal Rule of Civil Procedure 37(c), Defendant asks the Court to enter an order striking
Plaintiff’s non-retained expert witness designations of Centers for Medicare and Medicaid
Services (CMS) employees James Poyer, Dr. Reena Duseja, and Dr. Pierre Young. Defendant
contends Plaintiff’s designations for these three witnesses fail to satisfy Federal Rule of Civil
Procedure 26(a)(2)(C), and as a result the Court should prohibit each from offering expert
testimony. Plaintiff opposes the motion. As set forth below, the Court denies Defendant’s
On September 7, 2017, Plaintiff included in her expert witness designations the names of
three employees of CMS. Plaintiff actually believes these individuals will be lay witnesses, as
she intends to elicit testimony from them about the policies and practices of CMS during the time
periods described in the Second Amended Complaint. However, Plaintiff is prepared for the
possibility that the court may determine one or more of the witnesses’ opinions is “based on
scientific, technical, or other specialized knowledge” which would fall within the scope of expert
witness testimony.1 Accordingly, Plaintiff asked CMS to identify the individuals who will
testify so that, “out of an abundance of caution,”2 she could timely include the names in her
expert disclosures. CMS provided the names on September 6, 2017.
Defendant took issue with the sufficiency of the information Plaintiff provided regarding
the witnesses and on September 12, 2017, defense counsel wrote a golden rule letter informing
Plaintiff that Defendant is substantially prejudiced by the allegedly inadequacy and insisting that
Plaintiff immediately supplement its disclosures to “identify the specific facts and opinions about
which these witnesses are expected to testify.”3 The parties’ counsel spoke by telephone on
September 15, 2017, and Plaintiff’s counsel explained that CMS had recently designated the
witnesses but counsel had not yet spoken with them. Since then, Plaintiff’s counsel has
continued to communicate with CMS to try to arrange a phone conference to better ascertain the
nature of each witness’s knowledge and opinions related to this case. Neither party reports
further communication. On September 21, 2017, Defendant timely filed the instant motion.
Defendant alleges Plaintiff’s designation fails to meet the technical requirements of Fed.
R. Civ. P. 26(a)(2)(C), which governs the information a party must provide regarding nonretained witnesses. The rule provides as follows:
(C) Witnesses Who Do Not Provide a Written Report. Unless
otherwise stipulated or ordered by the court, if the witness is not
required to provide a written report, this disclosure must state:
See Fed. R. Civ. P. 701(c); 702.
Relator’s Memorandum in Opposition to Defendant/Counterclaimant Lawrence Memorial
Hospital’s Motion to Strike Plaintiff’s Non-Retained Experts (ECF No. 243) at 2.
See ECF No. 236-1.
(i) the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or 705;
(ii) a summary of the facts and opinions to which the
witness is expected to testify.4
As Defendant recognizes, case law provides little to no guidance on what constitutes a
sufficient summary under Fed. R. Civ. P. 26(a)(2)(C) that would obviate any danger of unfair
surprise regarding the potential factual and/or opinion testimony of non-retained witnesses.5 The
advisory committee notes written at the time Rule 26 was amended to include this provision state
Rule 26(a)(2)(C) is added to mandate summary disclosures of the
opinions to be offered by expert witnesses who are not required to
provide reports under Rule 26(a)(2)(B) and of the facts supporting
those opinions. This disclosure is considerably less extensive than
the report required by Rule 26(a)(2)(B). Courts must take care
against requiring undue detail, keeping in mind that these
witnesses have not been specially retained and may not be as
responsive to counsel as those who have.
This amendment resolves a tension that has sometimes prompted
courts to require reports under Rule 26(a)(2)(B) even from
witnesses exempted from the report requirement. An (a)(2)(B)
report is required only from an expert described in (a)(2)(B).
A witness who is not required to provide a report under Rule
26(a)(2)(B) may both testify as a fact witness and also provide
expert testimony under Evidence Rule 702, 703, or 705. Frequent
examples include physicians or other health care professionals and
employees of a party who do not regularly provide expert
testimony. Parties must identify such witnesses under Rule
26(a)(2)(A) and provide the disclosure required under Rule
26(a)(2)(C). The (a)(2)(C) disclosure obligation does not include
facts unrelated to the expert opinions the witness will present.6
Fed. R. Civ. P. 26(a)(2)(C).
ECF No. 236 at 2; see Shepeard v. Labette Cty. Med. Ctr., No. 11-1217-MLB-KGG, 2013 WL
881847, at *1 (D. Kan. Mar. 7, 2013).
Fed. R. Civ. P. 26 (2010 amendment notes).
In describing the subject matter of the CMS witnesses’ testimony, Plaintiff’s disclosure
states that each witness is “expected to provide evidence and to speak authoritatively on behalf
of CMS on matters related to the Hospital Value Based Purchasing (“HVBP”) program and/or
hospital arrival times as used in the CMS Specifications Manual.”7 Plaintiff also specifies
which witness would address each matter with testimony that “may include, but is not limited to,
statements, comments and opinion related to any document produced by a party or obtained
pursuant to a subpoena, or may relate to any statement, comment or opinion made under oath or
Plaintiff’s disclosure offers the following summary of facts and opinions:
It is anticipated that [the witness] will testify about [the CMS
HVBP program and/or hospital arrival times for CMS reporting].
[The witness] may also testify to facts known [concerning LMH’s
HVBP submissions and payments and/or arrival times reported by
LMH]. Any opinions [the witness] will offer will be within the
scope of his education and experience, and may include testimony
on documents produced by CMS pursuant to the subpoena served
on CMS on March 22, 2016.9
Defendant articulates its objection to Plaintiff’s disclosure primarily by quoting general
language about Rule 26(a)(2)(C) from cases finding disclosures inadequate. Defendant argues
the current disclosure will cause prejudice because it provides no actual opinions and reference
no specific facts of the case, but that Defendant would also be prejudiced if the Court were to
allow supplementation because Defendant’s time to make strategic decisions and designate its
ECF No. 236 at 3.
own expert witnesses would be shortened. Accordingly, Defendant urges the Court to strike the
designation and prevent the CMS witnesses from offering expert testimony at trial.10
Plaintiff continues to assert her belief that the CMS witnesses will be lay witnesses, able
to offer both facts and opinions consistent with Federal Rule of Evidence 701, to testify about
CMS’s policies and practices during the relevant time period. Recognizing the nature of their
work and experience and the relative complexity of the CMS programs at issue, Plaintiff
understands the trial judge may find the witnesses’ opinions are based on scientific, technical, or
other specialized knowledge. Were that to happen, the witnesses would have to satisfy
requirements for those offering expert testimony. As the committee notes indicate, a person
identified under Rule 26(a)(2)(A) who is not required to provide a written report may well testify
as both fact and expert witness.11
Plaintiff also addresses the purpose of the rule and argues that her disclosure is sufficient
to “avoid the danger of unfair surprise” the rule is designed to prevent. She points out that
Defendant has all the information Plaintiff has, which to date consists only of communication
between Plaintiff’s counsel and CMS. CMS provided Plaintiff’s counsel with names of the
witnesses only the day before Plaintiff’s disclosure deadline, and as of the time Plaintiff filed her
response, counsel had not yet communicated with the witnesses. Moreover, the witnesses have
Defendant also indicates Plaintiff’s counsel had voiced a concern that federal regulations
would prevent counsel from being able to speak with or depose the CMS witnesses before trial,
and Defendant devotes several pages to arguing that the regulations do not exempt Plaintiff from
complying with Rule 26. Plaintiff’s response is silent on the issue. It therefore appears Plaintiff
is not relying on these so-called Touhy regulations to justify the content of her disclosure, and the
Court need not address the issue.
Defendant raises no objection to the CMS witnesses testifying as fact witnesses. Knowing that
Plaintiff intends to offer their testimony at trial, the Court presumes Defendant will seek to
depose them. Doing so should enable Defendant to learn the scope of their relevant knowledge
no reason to cooperate or communicate with Plaintiff to the exclusion of Defendant. The latter
point, i.e. that Defendant has equal access to the witnesses, mutes the alleged deficiency because
Defendant is able to ask the witnesses about the scope and subject matter of their possible
In light of the extensive discovery the parties have conducted to date and their equal
access to the CMS witnesses, the Court finds that Plaintiff’s disclosure does not violate Fed. R.
Civ. P. 26(a)(2)(C). Accordingly, the Court will not strike the CMS witness’s testimony.12
However, the Court will direct Plaintiff to confer post haste with the three CMS witnesses
identified in her disclosure, and to supplement her disclosure or advise that the witnesses failed
IT IS HEREBY ORDERED that Defendant/Counterclaimant Lawrence Memorial
Hospital’s Motion to Strike Plaintiff’s Non-Retained Experts (ECF No. 236) is DENIED.
IT IS FURTHER ORDERED that no later than November 3, 2017, Plaintiff shall
provide Defendant with a supplemental disclosure related to the CMS witnesses or shall advise
Defendant that the witnesses have not cooperated in providing the information necessary for
If the Court had found a Rule 26 violation, the Court would have found it harmless and not
subject to striking under Fed. R. Civ. P. 37(c), using the applicable factors: (1) prejudice or
surprise to the party against whom the testimony is offered; (2) ability to cure any prejudice; (3)
potential for trial disruption if the testimony is allowed; and (4) erring party’s bad faith or
willfulness. See Hayes v. Am. Credit Acceptance, LLC, No. 13-2413-RDR, 2014 WL 3927277,
at *4 (D. Kan. Aug. 12, 2014).
The Court will impose a short deadline because Plaintiff represents that counsel continued to
communicate with CMS to arrange a conference with the witnesses. If this has yet to occur, it
would be consistent with CMS’s pattern of poor communication which is not likely to be cured
with more time.
Dated this 31st day of October, 2017 at Kansas City, Kansas.
s/ Teresa J. James
Teresa J. James
U.S. Magistrate Judge
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