Sierra et al v. Williamson et al

Filing 210

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 6/27/2013 re 159 169 Motions to Exclude. Defendant Morgan Stanley's "Motion to Exclude Plaintiff's Purported Expert, Dr. Shirishkumar Patel," (Docket No. [ 159]), is DENIED; Defendant Craig Williamson's "Motion to Exclude Expert Testimony of Shirishkumar N. Patel, M.D.," (Docket No. 169 ), is DENIED; Defendants are granted leave to Depose Dr. Patel, if they wish, and shall be allowed 1 4 days from entry of this Order in which to do so; Defendants shall identify any expert witness they intend to call in rebuttal no later than 7 days after Dr. Patel is deposed or the expiration of the time allowed to depose Dr. Patel, whichever is later, and shall arrange for any such rebuttal expert to be deposed, if necessary. cc: Counsel (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:10-CV-00079-TBR
CONCHI SIERRA

Plaintiff

v.
CRAIG WILLIAMSON, et al.

Defendants

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant Morgan Stanley Private National
Association (Morgan Stanley) and Defendant Craig Williamson’s respective motions to
exclude Plaintiff Conchi Sierra’s expert witness Shirishkumar Patel, M.D. (Docket Nos.
159 & 169, respectively.) In their respective motions, Morgan Stanley and Williamson
(collectively “Defendants”) argue that Dr. Patel should be excluded from testifying as an
expert witness on grounds that Plaintiff failed to timely disclose Dr. Patel as such.
Plaintiff has collectively responded to both, (Docket No. 180), and Morgan Stanley and
Williamson have each replied, (Docket Nos. 203 & 200, respectively). This matter is
now ripe for adjudication.
BACKGROUND
Dr. Patel was the physician at Wellington Parc who examined Mrs. Sutherland
when she was admitted in 2005 and who made a determination regarding her capacity to
make certain decisions about her care. Dr. Patel continued to monitor Mrs. Sutherland
through mid-2007. In his initial Fed. R. Civ. P. 26 disclosures on August 4, 2010,
Defendant Williamson identified Dr. Patel as follows:
Page 1 of 6

Sharish N. Patel, M.D., 2200 East Parrish Avenue, Owensboro,
KY. Dr. Patel is a physician who treated Sara Loving Sutherland.
Dr. Patel would likely have information concerning his
observations and treatment of Sara Loving Sutherland.
(Docket No. 180-5, at 6.)
By agreed order entered May 11, 2012, Plaintiff was required to identify her
experts in compliance with Rule 26(a)(2) no later than May 21, 2012. (Docket No. 87.)
A subsequent agreed order entered June 11, 2012, required Defendants to identify their
experts no later than July 21, 2012, and required that all additional rebuttal experts be
identified no later than August 20, 2012. (Docket No. 89.) Defendants complied with
their July 21 deadline, and Plaintiff complied with the August 20 rebuttal-expert
deadline; however, Plaintiff did not identify Dr. Patel as an expert witness prior to either
the May 21 deadline or the August 20 rebuttal-expert deadline. Then on March 7, 2013,
Plaintiff sent the other parties an amendment to her Rule 26(a)(2) disclosures, adding Dr.
Patel as an expert witness that Plaintiff intends to call at trial. (Docket No. 159-3.)
Defendants now argue that Dr. Patel should be excluded as an untimely disclosed
expert. Defendants insist that they would suffer prejudice if Dr. Patel is allowed to give
his opinions in this matter because discovery is now closed, because Defendants have had
no opportunity to depose Dr. Patel, and because Defendants have had no opportunity to
retain an expert to rebut Dr. Patel’s testimony. Plaintiff responds, seemingly arguing that
she could not confer with Dr. Patel until Defendant Williamson was removed as executor
of Mrs. Sutherland’s estate in late 2012 and could not arrange a consultation until
February 2013, several months later. Plaintiff reasons that because Williamson identified
Dr. Patel as a potential fact witness, Dr. Patel was clearly known to Defendants such that
Page 2 of 6

there was no surprise by Plaintiff’s March 7 amended disclosure. Plaintiff further reasons
that Defendants had some three weeks after that amended disclosure during which to
notice Dr. Patel’s deposition before the deadline for discovery on April 1, 2013, yet chose
not to do so. As such, Plaintiff maintains that exclusion is not warranted.
DISCUSSION
The Federal Rules of Civil Procedure require that parties disclose the identities of
any expert witnesses that they intend to use at trial to present evidence. Fed. R. Civ. P.
26(a)(2)(A). When such expert witnesses do not provide a written report, the disclosure
must state the subject matter, facts, and opinions to which the expert witness is expected
to testify. Fed. R. Civ. P. 26(a)(2)(C). In the event a party fails to make these required
disclosures, Rule 37(c)(1) provides for sanctions, stating:
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.
The Sixth Circuit has characterized Rule 37(c)(1) as requiring “absolute compliance”
with Rule 26, with the sanction of exclusion being “automatic and mandatory unless the
sanctioned party can show that its violation was either justified or harmless.” Roberts v.
Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003) (citing Salgado v. Gen. Motors
Corp., 150 F.3d 735, 741–42 (7th Cir. 1998)). “Harmlessness . . . is the key under Rule
37, not prejudice.” Sommer v. Davis, 317 F.3d 686, 692 (6th Cir. 2003). The Rule 37
advisory committee note “strongly suggests that ‘harmlessness’ involves an honest
mistake on the part of a party coupled with sufficient knowledge on the part of the other
party.” Id. (citing Vance v. United States, 182 F.3d 920, 1999 WL 455435, at *5 (6th Cir.
Page 3 of 6

June 25, 1999) (unpublished table decision)). The party seeking to avoid sanction under
Rule 37 bears the burden of showing that its delay and omission was either substantially
justifiable or harmless. Roberts, 325 F.3d at 782 (6th Cir.2003).
Undoubtedly, Plaintiff has failed to comply with the requirements of Rule 26, as
she failed to identify Dr. Patel as an expert witness until some nine-and-a-half months
after the Court-ordered deadline to identify her experts. The issue thus becomes whether
Plaintiff’s failure was substantially justified or harmless. On the one hand, Plaintiff’s
explanations for the delay are not particularly compelling. In fact, the Court sees no good
reason why Plaintiff could not have disclosed Dr. Patel as an expert witness in this matter
well before the applicable deadline.

On the other hand, Defendants certainly had

knowledge of Dr. Patel, given that it was Defendant Williamson who first disclosed Dr.
Patel as a potential witness back in August 2010.

In regard to this “knowledge”

component, as one of this Court’s sister district courts succinctly put it:
The Sixth Circuit has intimated that the . . . requirement of
knowledge is further broken down into two parts: that opposing
counsel knows “who [is] going to testify and to what they [are]
going to testify.” Galen of Va., Inc., 325 F.3d at 783. If opposing
counsel knows these two matters, the situation is “atypical of cases
where sanctions have been justified under Rule 37(c)(1).” Id.
Dennis v. Sherman, 2010 WL 1957236, at *2 (W.D. Tenn. May 12, 2010) (alterations in
original). Here, Defendants certainly Dr. Patel was a potential witness and knew the gist
of what he would testify.

Furthermore, Defendants took no steps to mitigate any

perceived harm that could result from Plaintiff’s eleventh-hour disclosure.

In fact,

Plaintiff’s untimely disclosure was not brought to the Court’s attention until the filing of
Defendants’ instant motions on April 26, nearly seven weeks after that disclosure was
Page 4 of 6

made on March 7. And, moreover, Plaintiff has provided copies of correspondence
between Plaintiff’s counsel and counsel for Defendant Morgan Stanley evincing defense
counsel’s decision not to depose Dr. Patel until the Court had ruled on the motions now
before it. 1
With these considerations in mind, the Court is of the opinion that although
Plaintiff failed to timely disclose Dr. Patel in accordance with Rule 26, Plaintiff has made
a sufficient showing that her failure was, in effect, more or less harmless and with some
justification. As such, the Court finds that an all-or-nothing outcome is not warranted
here—that is, the interests of justice are not served either by excluding Dr. Patel outright
as Defendants now seek, nor are those interests served by allowing Dr. Patel to render
expert testimony absent Defendants having some opportunity to depose him and, if
necessary, secure their own expert to rebut his testimony. Therefore, the Court will not
exclude Dr. Patel’s testimony but will allow Defendants the opportunity to depose him if
they wish. If necessary, the Court is prepared to subpoena Dr. Patel to command his
attendance to be deposed. The Court will also permit Defendants to secure a rebuttal
expert if one is needed. However, the Court is not inclined to alter the existing schedule
in this case by continuing the trial until a later date.

The Court recognizes and

understands that its ruling places the parties under shorter deadlines than otherwise would
be ideal; however, the parties could (and should) have streamlined the resolution of this
relatively simple issue during the preceding months, yet they did not.

1

The relevant portion of that correspondence states: “Due to the pendency of the motions to disqualify
Dr. Patel, I have decided not to notice his deposition. In the event the Court overrules our motion, but
provides us leave to depose him, we will do so then.” (Docket No. 180-11, at 2.)

Page 5 of 6

CONCLUSION
Therefore, having considered the parties’ respective positions and being otherwise
sufficiently advised, consistent with the foregoing discussion;
IT IS HEREBY ORDERED as follows:
(1) Defendant Morgan Stanley’s “Motion to Exclude Plaintiff’s
Purported Expert, Dr. Shirishkumar Patel,” (Docket No. 159), is
DENIED;
(2) Defendant Craig Williamson’s “Motion to Exclude Expert
Testimony of Shirishkumar N. Patel, M.D.,” (Docket No. 169), is
DENIED;
(3) Defendants are granted leave to Depose Dr. Patel, if they wish, and
shall be are allowed 14 days from entry of this Order in which to
do so;
(4) Defendants shall identify any expert witness they intend to call in
rebuttal no later than 7 days after Dr. Patel is deposed or the
expiration of the time allowed to depose Dr. Patel, whichever is
later, and shall arrange for any such rebuttal expert to be deposed,
if necessary.
IT IS SO ORDERED.

Date:

June 27, 2013

cc:

Counsel

Page 6 of 6