DOWNING v. SELECT REHABILITATION INC
MEMORANDUM DECISION AND ORDER granting 26 Motion to Exclude Expert Witness; granting 38 Motion to Supplement its Offer of Proof Pursuant to Federal Rule of Evidence 103(a)(2) By MAGISTRATE JUDGE JOHN H. RICH III. (jwr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRIAN C. DOWNING,
SELECT REHABILITATION, INC.,
MEMORANDUM DECISION AND ORDER ON PLAINTIFF’S MOTION
TO EXCLUDE TESTIMONY OF DEFENDANT’S EXPERT WITNESS
The plaintiff in this whistleblower employment action moves to exclude the testimony of
defendant Select Rehabilitation, Inc.’s (“Select’s”) expert witness Michael Sciacca on the bases
that the designation was deficient pursuant to Federal Rule of Civil Procedure 26(a)(2)(B) and that
the anticipated testimony does not meet the standards of Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). See Plaintiff’s
Daubert/Kumho Motion To Exclude Testimony of Defendant’s Experts Michael Sciacca and
Sheryl Rosenfield (“Motion To Exclude”) (ECF No. 26) at 1-2.1 Select moves to supplement its
opposing brief with evidence, including a supplemental report by Sciacca. See Defendant Select
Rehabilitation[,] Inc.[’s] Motion To Supplement Its Offer of Proof Pursuant to Federal Rule of
Evidence 103(a)(2) (“Motion To Supplement”) (ECF No. 38); Memorandum Dated June 23, 2017,
from Michael Sciacca, MHA, MPT, re: Electronic Communication between Regional and in-house
Director of Rehab (“Sciacca Report”), Exh. 1 (ECF No. 38-1) thereto. For the reasons that follow,
I grant the Motion To Supplement but also grant the Motion to Exclude.
During a hearing on June 27, 2017, Select’s counsel withdrew Rosenfield’s designation, leaving only that of
Sciacca at issue.
Manner in Which To Raise Disputes Over Sufficiency of Expert Designations
In both this case and a decision issued today in DePaolo v. GHM Portland Mar, LLC, d/b/a
Portland Marriott at Sable Oaks, No. 2:16-cv-00468-NT (D. Me.), disputes over the sufficiency
of expert designations were raised by way of motions filed in the absence of any attempt by the
movants to meet and confer with opposing counsel in a good-faith effort to resolve those issues
before court intervention. This was improper. In each case, as discussed below and in DePaolo,
that impropriety proves not to be dispositive against the movants. However, on different facts, it
could be. See White v. Meador, 215 F. Supp.2d 215, 221 (D. Me. 2002) (denying defendants’
motion to strike expert designation in part on basis that they raised no issue with plaintiff or court
regarding its insufficiency until months had passed and the case had been scheduled for trial;
observing, “Counsel must at least give opposing counsel a timely opportunity to remedy omissions
in the required designations before seeking assistance from the court in obtaining the necessary
information, which should also be done well before the close of discovery.”).
The Bar is reminded that a dispute over the sufficiency of an expert designation is a
discovery dispute to be handled in the manner prescribed by Local Rule 26(b). That rule prohibits
the filing of written discovery motions without the prior approval of a judicial officer and directs
that “[a] party with a discovery dispute . . . first confer with the opposing party in a good faith
effort to resolve by agreement the issues in dispute[,]” failing which “the moving party shall then
seek a prompt hearing with a judicial officer by telephone or in person.” Loc. R. 26(b).
Select’s Motion To Supplement
During the hearing held on June 27, 2017, Downing’s counsel opposed Select’s Motion To
Supplement on the basis that Select had improperly filed the Sciacca Report as an attachment to a
motion rather than serving it on Downing pursuant to Federal Rule of Civil Procedure 26(e)(2).
She added that, in her experience, an offer of proof typically is made at trial rather than by way of
a motion such as that filed by Select. She argued that, in any event, the Sciacca Report was
Downing is correct that the Sciacca Report should have been served upon him as a
supplemental expert disclosure pursuant to Federal Rule of Civil Procedure 26(e)(2), triggering
the requirements of Local Rule 26(b). Yet, Select’s motion to proffer evidence was not an
improper discovery motion, but rather a motion to place evidence before the court prior to its ruling
on Downing’s motion to exclude.
As Select’s counsel argued at hearing, in view of the pendency of the Motion To Exclude,
the Sciacca Report and accompanying evidentiary materials were properly proffered pursuant to
Federal Rule of Evidence 103(a)(2), which covers pretrial as well as trial rulings on motions to
Rule 103 provides, in relevant part:
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit
or exclude evidence only if the error affects a substantial right of the party and:
(2) if the ruling excludes evidence, a party informs the court of its
substance by an offer of proof, unless the substance was apparent from the
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court
rules definitively on the record – either before or at trial – a party need not renew
an objection or offer of proof to preserve a claim of error for appeal.
Fed. R. Evid. 103(a)(2) & (b). Because Downing had filed a motion to exclude evidence, and Rule
103 applies to pretrial rulings, Select properly made a proffer of evidence to the court in advance
of its ruling on Downing’s motion.
For these reasons, I grant the Motion To Supplement. Downing’s argument that the
proffered evidence is untimely bears on the merits of his motion rather than that of Select.
Accordingly, I address that point below.
Downing’s Motion To Exclude
A. Applicable Legal Standards
1. Rule 26 Challenge
Federal Rule of Civil Procedure 26 provides, in relevant part, that “a party must disclose
to the other parties the identity of any [expert] witness it may use at trial to present evidence[.]”
Fed. R. Civ. P. 26(a)(2)(A). “A party must make these disclosures at the times and in the sequence
that the court orders.” Id. at (a)(2)(D). Both Rule 26(a)(2)(B) and the court’s scheduling order
provide that, if an expert witness is retained or specially employed to provide testimony in the
case, or is a party’s employee whose duties regularly involve giving expert testimony, the
disclosure must contain six categories of information, although, pursuant to the court’s scheduling
order, that information need not be provided in the form of a written report prepared and signed
by the expert. See id. at (a)(2)(B); Scheduling Order (ECF No. 9) at .
The six categories of information required to be disclosed include: “(i) a complete
statement of all opinions the witness will express and the basis and reasons for them;” and “(ii) the
facts or data considered by the witness in forming them[.]” Fed. R. Civ. P. (a)(2)(B)(i)-(ii).
Rule 26 also states:
For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s
duty to supplement extends both to information included in the report and to
information given during the expert’s deposition. Any additions or changes to this
information must be disclosed by the time the party’s pretrial disclosures under
Rule 26(a)(3) are due.
Fed. R. Civ. P. 26(e)(2).
“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 movant bears the burden of demonstrating that a late and/or insufficient expert
designation is either substantially justified or harmless. See, e.g., United States Bank Nat’l Ass’n
v. James, Civil No. 09-84-P-JHR, 2010 WL 1416126, at *6 (D. Me. Apr. 5, 2010).
“The baseline rule is that the required sanction in the ordinary case is mandatory
preclusion.” Harriman v. Hancock Cty., 627 F.3d 22, 29 (1st Cir. 2010) (citations and internal
punctuation omitted). However, the court retains discretion to impose other sanctions in lieu of,
or in addition to, mandatory preclusion. See Fed. R. Civ. P. 37(c)(1); see also, e.g., Esposito v.
Home Depot U.S.A., Inc., 590 F.3d 72, 77-78 (1st Cir. 2009) (“Preclusion . . . is not a strictly
mechanical exercise. And, in its discretion, the district court may choose a less severe sanction.
Where a district court does opt in favor of preclusion, we review that decision with reference to a
host of factors, including: (1) the history of the litigation; (2) the sanctioned party’s need for the
precluded evidence; (3) the sanctioned party’s justification (or lack of one) for its late disclosure;
(4) the opponent-party’s ability to overcome the late disclosure’s adverse effects – e.g., the surprise
and prejudice associated with the late disclosure; and (5) the late disclosure’s impact on the district
court’s docket.”) (citations and some internal quotation marks omitted).
2. Daubert/Kumho Challenge
Federal Rule of Evidence 702 governs the admissibility of expert testimony:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
Fed. R. Evid. 702.
In Daubert, the Supreme Court designated trial judges as gatekeepers responsible for
determining whether Rule 702’s requirements are met in any given case. See Daubert, 509 U.S.
at 597. Rule 702 assigns to the court “the task of ensuring that an expert’s testimony both rests on
a reliable foundation and is relevant to the task at hand.” Smith v. Jenkins, 732 F.3d 51, 64 (1st
Cir. 2013) (citation and internal quotation marks omitted). “The proponent of expert testimony
bears the burden of demonstrating that the evidence satisfies Fed. R. Evid. 702 by a preponderance
of the evidence, as interpreted by Daubert and its progeny.” Linhares v. Buyers Prods. Co., Civ.
Action No. 15-11881-LTS, 2016 WL 4599899, at *2 (D. Mass. Sept. 2, 2016). “The ultimate
purpose of the Daubert inquiry is to determine whether the testimony of the expert would be helpful
to the jury in resolving a fact in issue.” Id. (citation and internal quotation marks omitted).
“[A] a court cannot rely on the jury to determine the relevance and reliability of the
proffered testimony in the first instance; Daubert and its progeny place this responsibility in the
hands of the district court.” Jenkins, 732 F.3d at 65.
Downing assails both the relevance and the reliability of Sciacca’s anticipated testimony,
see Motion To Exclude at 3-9; however, I have focused on its relevance. “This requirement seeks
to ensure that there is an adequate fit between the expert’s methods and his conclusions[,]”
addressing “the problem that arises when an expert’s methods, though impeccable, yield results
that bear a dubious relationship to the questions on which he proposes to opine.” Samaan v. St.
Joseph Hosp., 670 F.3d 21, 32 (1st Cir. 2012).
B. Factual Background
Downing filed the instant suit on November 1, 2016, alleging that, while employed by
Select to work as an occupational therapist at Cove’s Edge, a skilled nursing care and long-term
care facility in Damarsicotta, Maine, he “repeatedly reported to Select that it was wrongfully
billing Medicare for patient services that were not needed and that it was refusing to discharge
patients who no longer needed services but for whom Select wanted to keep on billing.” Complaint
(ECF No. 1) at 1 & ¶¶ 13, 16. He complained that, in violation of the Maine Human Rights Act
(“MHRA”), 5 M.R.S.A. § 4551 et seq., and the Maine Whistleblowers’ Protection Act (“MWPA”),
26 M.R.S.A. § 831 et seq., Select fired him in retaliation for his repeated reporting of “billing
practices he reasonably believed to be a violation of law” and “what he had reasonable cause to
believe was an act or omission that constituted a deviation from the applicable standard of care for
a patient by an employer charged with the care of that patient.” Id. ¶¶ 1-2.
He alleged, inter alia, that Select hired an individual named Bobby Schaffer, a physical
therapist who was not qualified to make decisions about occupational therapy (“OT”) patients, to
make and document decisions preventing the discharge of OT patients even if a treating therapist
opined that they did not need additional services.
Id. ¶¶ 30-34.
He stated that Schaffer
inappropriately made decisions based on only billing information and without reference to any
treatment documentation and, at Select’s direction, refused to communicate with therapists who
had evaluated the patients. Id. ¶¶ 32-33. He alleged that Schaffer was removed from the discharge
process after it was discovered that therapists were keeping copies of Schaffer’s emails denying
discharge, whereupon Select’s Regional Manager, Robert Davis, began making those decisions,
and therapists ceased receiving communications regarding them. Id. ¶¶ 35-36.
On December 12, 2016, the court issued a scheduling order setting, inter alia, deadlines of
April 3, 2017, for the defendant’s designation of experts and May 1, 2017, for the close of
discovery. See Scheduling Order at .
On April 3, 2017, Select served Downing with the written expert designation of Sciacca, a
licensed physical therapist and the Director of Operations for Zimmet Healthcare Services Group,
LLC (“ZHSG”). See Defendant, Select Rehabilitation, Inc. Expert Witness Disclosure (“Initial
Sciacca Designation”), Exh. A (ECF No. 26-1) to Motion To Exclude.
The designation included a section titled “Complete statement of all opinions the witness
will express and the basis and reasons for them[,]” stating, in its entirety:
The witness will testify that communications between Select’s Regional Director
and the Select staff at the Cove[’]s Edge facility were appropriate, clinically based,
instructional, and gave valuable guidance to ensure the beneficiary received entitled
services. The witness will further testify that there was no indication of undue
pressure to change treatment approaches specific to financial concerns. The
witness will supplement his opinion based upon testimony and documents produced
in the lawsuit.
Id. at Page ID ## 119-20. The designation listed the following as the facts or data considered by
Sciacca in forming his opinions: (i) emails between Schaffer and Select’s Director of
Rehabilitation (Program Manager), (ii) applicable Medicare law and regulations, and (iii) the
Medicare Benefits Manual. Id. at Page ID # 120.
By order dated April 27, 2017, I granted a motion by Select to amend the scheduling order,
enlarging the parties’ discovery deadline to May 31, 2017. See ECF Nos. 23, 25.
On May 3, 2017, Downing filed the Motion To Exclude, which was fully briefed as of May
26, 2017. See Plaintiff’s Reply to Defendant’s Opposition to the Motion To Exclude Expert
Testimony (“Reply”) (ECF No. 28). On May 29, 2017, I granted Select’s motion for oral argument
on the Motion To Exclude, which was scheduled for June 27, 2017. See ECF Nos. 29, 32, 34.
On May 30, 2017, I held a teleconference with counsel on separate discovery matters
during which I further extended the discovery deadline to June 30, 2017. See ECF No. 46 at 4.
On June 23, 2017, four days before the scheduled oral argument and only a week before
the expiration of the discovery deadline as twice extended, Select filed its Motion To Supplement,
to which it attached the Sciacca Report of the same date, Sciacca’s curriculum vitae, and copies of
certain materials that Sciacca indicated he had reviewed in forming his opinions: a Therapy
Services Agreement between Select and Cove’s Edge, certain Schaffer emails, and the depositions
of Smith, Schaffer, and Davis. See Motion To Supplement & Exhs 1-7 (ECF Nos. 38-1 to 38-7)
Sciacca stated, inter alia, that his report was “limited in scope to review of submitted
electronic communications between the employees of Select Rehabilitation” and that
“[d]eterminations and opinions are based [on] our extensive experience with industry norms and
based on references to Medicare reimbursement policy.” Sciacca Report at Page ID # 200. He
added: “Note that this letter is not meant to serve as a commentary on patient care or the clinical
efficacy of Select.” Id.
He described his opinion as follows:
Based on our extensive industry experience from both the Facility level and
Outsource Therapy vendor space, as well as experience with Therapy vendors
under Corporate Integrity Agreements (“CIAs”), ZHSG did not identify any
inappropriate communication between the Regional Director and the Select facility
staff. All correspondences between staff were clinically based, as required by
Medicare, as well as various other regulatory agencies. Communications appeared
to be instructional with recommendations for interventions and for the purposes of
education for line therapy staff. ZHSG did not identify any of the communications
to include undue pressure to change treatment approaches specific to financial
concerns. Although facility staff may have been defensive specific to clinical
judgments, in our opinion the Select Regional Director adequately justified his
clinical position and gave valuable guidance to ensure the beneficiary received
entitled services. Furthermore, this level of clinical support appeared consistent
with the education needed to address the changes to the Medicare Benefits Manual,
specific to updates resulting from the Jimmo vs. Sebelius Settlement Agreement in
which Medicare affirmed that beneficiary progress alone was not required to
receive the therapy entitlement.
Id. at Page ID ## 200-01.
He cited the following in support of his opinion:
Two sections of the Medicare Benefits Manual – Transmittal 179, setting forth what
he described as “a significant clinical reversal of how therapists determined discontinuation of
skilled therapy services, particularly in a skilled nursing facility[,]” and Section 220.2, bearing on
determination of the reasonableness and necessity of skilled care services;
Portions of the Therapy Services Agreement between Select and Cove’s Edge
requiring that Select ensure compliance with government regulations, including Medicare
guidelines, in connection with which he stated, “Again, I reiterate my opinion that the
communications I reviewed between Select supervisors and therapy staff were consistent with
Select’s responsibilities as agreed upon in the Therapy Services Agreement”; and
Section 483.85(c)(6) of the updated Long-Term Care Facility Requirements of
Participation, setting forth the requirement that reasonable regulatory compliance steps be taken,
in connection with which he stated that he reiterated his finding of “no inappropriateness specific
to the communications reviewed[,]” noting, “Select appears to be appropriately focused on the
beneficiary’s clinical conditions and provides its staff with valuable guidance from the corporate
Id. at Page ID ## 201-03.
On June 27, 2017, I heard oral argument on both the Motion To Exclude and the Motion
To Supplement, as well as other pending discovery disputes. See ECF No. 39. On July 27, 2017,
I issued orders removing this case from the August Trial List, directing the Clerk’s Office to
schedule a teleconference with the parties regarding new discovery issues that had been raised on
July 6, 2017, and stating that final pretrial deadlines would be reestablished once that discovery
teleconference was held. See ECF Nos. 47, 49. During that teleconference, held on August 8,
2017, I enlarged the parties’ discovery deadline nunc pro tunc to August 31, 2017. See ECF No.
1. Rule 26 Challenge
As a threshold matter, Downing seeks exclusion of the Sciacca testimony on the basis that
Select’s April 3, 2017, designation failed to set forth the required “complete statement of all
opinions the witness will express and the basis and reasons for them” or “the facts or data
considered by the witness in forming them[.]” Fed. R. Civ. P. (a)(2)(B)(i)-(ii).
He points out that Select neither identified the specific Medicare guidelines or rules on
which Sciacca relied to reach his conclusions nor explained his reasons for so concluding. See,
e.g., Reply at 1-2. I agree that the designation is facially deficient in those respects. While the
initial designation in DePaolo was pithy as well, it described Dr. Voss’s expected opinion (that
the actions of which DePaolo complained exacerbated an existing post-traumatic stress disorder
(“PTSD”) condition), the bases for them (that Dr. Voss planned to review the plaintiff’s medical
and mental health records and examine the plaintiff), and his expected reasons (that the
complained-of actions caused DePaolo psychological harm, including severe emotional distress,
which exacerbated his PTSD). Compare also, e.g., Goodrich v. Sheehan, No. 2:12-cv-388-JAW,
2014 WL 4843975, at *2 (D. Me. Sept. 28, 2014) (initial expert designation was sufficient when,
although the defendants did not provide a detailed summary of the factual grounds and documents
upon which expert relied, “they summarized the documents that he reviewed and set forth the facts,
as [the expert] understood them, and basic legal principles upon which he relied in forming the
Moreover, the Sciacca Report, offered nearly three months after Select’s expert designation
deadline and only a week before the then-operative discovery deadline, highlighted the deficiency
of the initial designation, disclosing for the first time (i) specific sections of voluminous Medicare
materials on which Sciacca had relied, (ii) his reliance on a Therapy Services Agreement between
Select and Cove’s Edge, (iii) his reliance on an unredacted email communication disclosing a
patient name that Downing’s counsel represented never was produced to her client during
discovery, (iv) rationales for his conclusions, and (v) an arguably broader opinion encompassing
interactions with unnamed staff.2 See Sciacca Report at Page ID ## 200-03. The burden on Select
was heavy, in these circumstances, to demonstrate substantial justification or harmlessness should
the court deem the initial Sciacca designation deficient and the Sciacca Report an improper
Yet, unlike the plaintiff in DePaolo, whose supplemental expert report was served on the
opposing side approximately a month prior to the parties’ discovery deadline, Select did not argue
that its insufficient designation, supplemented by way of the Sciacca Report, was either
substantially justified or harmless.
Beyond this, Downing’s counsel made a compelling argument that the deficiencies were
not harmless, stating that the untimely provision of the detail in the Sciacca Report one week prior
to the close of discovery deprived her client of the opportunity to take Sciacca’s deposition and/or
In a section of his report titled “General Summary,” Sciacca stated, after discussing the appropriateness of electronic
communications between the Regional and in-house Director of Rehabilitation at Cove’s Edge: “It also appears the
in-house staff had the opportunity to respond with additional clinical information that may not be in the documentation
to further review or render an opinion on the clinical conversation. Once that information was reviewed, the Regional
Director at times provided clinical rationale and interventions to utilize and continue the service or, if the team agrees
to a revised discharge plan.” Sciacca Report at Page ID # 200.
use interrogatories or document requests to probe for more detail on the newly-expressed bases
and rationale for his opinion and its apparently expanded scope.
As Downing’s counsel contended, because the Sciacca Report materially expanded upon
Sciacca’s initial designation, it was not a proper supplement. As this court has recently explained:
Supplementation as contemplated by Rule 26 is a method of correcting
inaccuracies, or filling the interstices of an incomplete report based on information
that was not available at the time of the initial disclosure. If a supplemental expert
disclosure presents a new theory of the case, the district court has the discretion to
exclude it and if it represents a refinement, the expert should be allowed to testify.
Maine Med. Ctr. v. William A. Berry & Son, Inc., 2:16-cv-00052-JDL, 2017 WL 1411478, at *2
(D. Me. Apr. 20, 2017) (citations and internal punctuation omitted). Here, as in Berry & Son, the
offered supplement “does not fit comfortably within the contours of Rule 26(e)(2).” Id. “[I]t is
not a refinement of [Sciacca’s] initial expert disclosure and was not timely under Rule 26.” Id.
“Accordingly, its admissibility is properly analyzed under Rule 37(c).” Id.
In the absence of any attempt by Select to demonstrate substantial justification or
harmlessness, the baseline sanction is preclusion of the Sciacca testimony. See Fed. R. Civ. P.
37(c)(1). Yet, mindful that “[p]reclusion . . . is not a strictly mechanical exercise[,]” Esposito, 590
F.3d at 77, I have considered whether a lesser sanction is warranted. I conclude that it is not.
First, while it is true that Downing did not place Select on notice of any asserted deficiency
in its initial expert designation until he mentioned the point in passing in a Daubert/Kumho motion
filed approximately a month after the designation, I find, as I do on similar facts in DePaolo, that
the denial of his motion on that basis alone is unwarranted. While, in White, the court denied a
motion to strike an expert designation in part on the basis that the movants had raised no issue with
the opposing side or the court regarding the designation’s insufficiency until months had passed
and the case had been scheduled for trial, in this case discovery was not due to close for a month
when Downing improperly raised the point in a motion, enabling the court to treat it, in effect, as
a discovery dispute pursuant to Local Rule 26(b).3
Examination of the relevant factors, see Esposito, 590 F.3d at 77-78, does not tip the
balance in favor of a lesser sanction than preclusion of the Sciacca testimony. While Select has
no history of delay or dilatory tactics, for the reasons discussed below in the context of Downing’s
Daubert/Kumho challenge, its need for the evidence is not great, and it offers no substantial
justification for its inadequate initial designation or its delay in producing the Sciacca Report until
nearly three months after its expert designation deadline, one week before the close of discovery,
and four days before oral argument on the Motion To Exclude. Finally, Select does not attempt to
argue that the deficiency was harmless, and Downing persuasively argues that it was not.
In DePaolo, by contrast, DePaolo’s need for the expert testimony was great, and he had
shown substantial justification for any initial deficiency in his designation. Compare also, e.g.,
Downeast Ventures, Ltd. v. Washington Cty., 450 F. Supp.2d 106, 113 (D. Me. 2006) (holding that
tardy designation of expert witness was harmless, and hence permissible, when, inter alia, the
plaintiff had “a critical need to present evidence of the value of the equipment it contends was
wrongfully seized[,]” “[i]ts justification for the non-disclosure was confusion about the need for
expert disclosure of a corporate employee valuation witness, a somewhat murky area of law[,]”
and the defendants “should be able to overcome the adverse effects of the non-disclosure”).
For the foregoing reasons, I exclude Sciacca’s testimony pursuant to Rule 37(c)(1).
While Downing made only a passing reference to his Rule 26 argument in his Motion To Exclude, see Motion To
Exclude at 1, and elaborated on it in his reply brief, see Reply at 1-2, the issue was discussed at length during the June
27, 2017, hearing, affording Select an opportunity to respond to the Rule 26 arguments raised in Downing’s reply
brief and by his counsel during the hearing.
2. Daubert/Kumho Challenge
In the alternative, I conclude that exclusion of the Sciacca opinion is warranted on the basis
of Select’s failure to demonstrate its relevance to the task at hand. See Koninklijke Philips N.V. v.
Zoll Med. Corp., Civil Action No. 10-11041-NMG, 2017 WL 2636041, at *1 (D. Mass. June 19,
2017) (“The crux of a Daubert challenge is . . . whether the proposed expert testimony ‘fits’ the
facts and issue[s] of the case.”) (citation omitted).
Select designated Sciacca to testify that “communications between Select’s Regional
Director and the Select staff at the Cove[’]s Edge facility were appropriate, clinically based,
instructional, and gave valuable guidance to ensure the beneficiary received entitled services” and
that “there was no indication of undue pressure to change treatment approaches specific to financial
concerns.” Initial Sciacca Designation at Page ID ## 119-20.
Downing claims that, in contravention of the MWPA and the MHRA, Select retaliated
against him for repeatedly reporting billing practices that he reasonably believed to be violations
of the law and acts or omissions that he reasonably believed deviated from patient care standards.
See Complaint ¶¶ 2, 112-31. He alleges that Select violated (i) 26 M.R.S.A. § 833(1)(A) of the
MWPA and 5 M.R.S.A. § 4572(1)(A) of the MHRA (Count I), (ii) 26 M.R.S.A. § 833(1)(E) of the
MWPA and 5 M.R.S.A. § 4572(1)(A) of the MHRA (Count II), and (iii) Maine’s personnel file
law, 26 M.R.S.A. § 631, for refusing to produce his entire personnel file to him (Count III). See
id. ¶¶ 112-37. The cited section of the MHRA adds nothing of substance to Downing’s MWPA
claims; it makes conduct violative of the MWPA also unlawful pursuant to the MHRA. See 5
M.R.S.A. § 4572(1)(A).
The cited sections of the MWPA prohibit an employer from, inter alia, discharging an
The employee, acting in good faith, or a person acting on behalf of
the employee, reports orally or in writing to the employer or a public body what the
employee has reasonable cause to believe is a violation of a law or rule adopted
under the laws of this State, a political subdivision of this State or the United States;
The employee, acting in good faith and consistent with state and
federal privacy laws, reports to the employer, to the patient involved or to the
appropriate licensing, regulating or credentialing authority, orally or in writing,
what the employee has reasonable cause to believe is an act or omission that
constitutes a deviation from the applicable standard of care for a patient by an
employer charged with the care of that patient. For purposes of this paragraph,
“employer” means a health care provider, health care practitioner or health care
entity as defined in Title 24, section 2502.
26 M.R.S.A. § 833.
“Under Maine law, the cause of action for whistleblower retaliation consists of three
elements: (1) that the employee engaged in a protected activity; (2) that the employer took adverse
employment action against the employee; and (3) that there was a causal connection between the
two.” Brady v. Cumberland Cty., 2015 ME 143, ¶ 32, 126 A.3d 1145, 1156, as corrected (Mar.
8, 2016). “Because of the way a WPA claim is defined under Maine law, . . . the employee must
not only produce evidence that she engaged in a protected activity and later suffered an adverse
employment action, but in the first instance she must also produce some evidence of the employer’s
unlawful motivation.” Id. ¶ 33, 126 A.2d at 1156. “Causation is an essential element of a claim
of WPA retaliation, and so the parties are entitled to present evidence of the reasons for the
employer’s action[.]” Id. ¶ 37, 126 A.2d at 1158.
For several reasons, Sciacca’s proposed testimony is ill-fitted to the facts and issues of this
First, it plainly has no bearing on Count III, which concerns failure to release personnel
Second, it can have no possible bearing on Count II, which concerns retaliation on account
of an employee’s report concerning what he or she “has reasonable cause to believe is an act or
omission that constitutes a deviation from the applicable standard of care for a patient by an
employer charged with the care of that patient.” 26 M.R.S.A. § 833(1)(E). Sciacca offers no
opinion on whether Select deviated from applicable standards of patient care, let alone whether
Downing reasonably believed that it did. See Sciacca Report at Page ID # 200 (“Note that this
letter is not meant to serve as a commentary on patient care or the clinical efficacy of Select.”).
Third, it has little, if any, bearing on Count I, concerning retaliation against an employee
for a report concerning what he or she “has reasonable cause to believe is a violation of a law or
rule[,]” 26 M.R.S.A. § 833(1)(A). As Downing’s counsel contended at oral argument, Sciacca
offers no opinion on the relevant question: whether her client reasonably believed Select’s billing
practices were illegal. Downing need not prove that those practices were in fact illegal, and proof
by Select that they were legal would not be dispositive against his claim pursuant to section
833(1)(A) (Count I). See Ingalls v. Walgreen E. Co., Civil No. 10-cv-242-PB, 2011 WL 777948,
at *5 (D.N.H. Mar. 1, 2011) (denying plaintiff’s motion to compel production of evidence bearing
on the asserted truth of his alleged whistleblowing statements; noting that, for purposes of his New
Hampshire Whistleblowers’ Protection Act claim, “whether or not [defendant employer] actually
violated any law is beside the point; what matters is whether plaintiff had reasonable cause to
believe that [defendant employer] had violated the law”).
To the extent that an opinion that Select’s billing practices were lawful would be helpful
to a trier of fact in determining whether Downing reasonably believed the converse, Sciacca does
not offer such an opinion. He claims to opine solely on the appropriateness of certain “electronic
communications between the employees of Select Rehabilitation[.]” Sciacca Report at Page ID
# 200. Yet, as Downing’s counsel pointed out at oral argument, the Complaint indicates that her
client did not rely solely on electronic communications in forming the belief that his employer’s
billing practices were illegal. He alleges, inter alia, that (i) he observed changes in the rate of
patient discharges after Select began managing Cove’s Edge, (ii) Schaffer refused to talk to
therapists treating patients, (iii) Select banned such communications, (iv) a different Select
employee, Sue Martin, told the team that discharge requests would not be approved unless there
was another Medicare B patient to replace the one being discharged, and (v) Select “push[ed]
therapists to provide therapy – whether or not needed – to patients[.]” Complaint ¶¶ 22, 33, 46,
In the circumstances, Select fails to demonstrate that Sciacca’s testimony sufficiently fits
the facts and issues of this case to be helpful to the trier of fact.
For the foregoing reasons, I GRANT Select’s Motion To Supplement and GRANT
Downing’s Motion To Exclude.
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file an
objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 31st day of August, 2017.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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