BURTON v. SD WARREN COMPANY

Filing 134

MEMORANDUM DECISION AND ORDER ON DEFENDANT' S MOTION TO STRIKE PLAINTIFFS EXPERT WITNESS DESIGNATION denying 122 Motion to Strike By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

DALE E. BURTON,
Plaintiff
v.
S.D. WARREN COMPANY d/b/a SAPPI
FINE PAPER NORTH AMERICA
Defendant

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No. 2:17-cv-00110-JDL

MEMORANDUM DECISION AND ORDER ON DEFENDANT’S MOTION
TO STRIKE PLAINTIFF’S EXPERT WITNESS DESIGNATION
Defendant S.D. Warren Company d/b/a Sappi Fine Paper North America (“Sappi”) moves
to strike plaintiff Dale E. Burton’s May 31, 2019, designation of treating counselor Lynn Hamilton
as an expert witness on the bases that it is untimely, made in bad faith, and incomplete. See
Defendant’s Motion To Strike Plaintiff’s Supplemental Expert Witness Designation (“Motion”)
(ECF No. 122) at 7-10.1 Because I find that the plaintiff’s late designation was substantially
justified and harmless, and the defendant’s completeness argument is not ripe, the Motion is
denied.
I. Applicable Legal Standard
“In addition to the disclosures required by [Federal] Rule [of Civil Procedure] 26(a)(1), a
party must disclose to the other parties the identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). If the
witness must provide a written report, unless otherwise stipulated or ordered by the court, the
disclosure must be accompanied by a written report containing six categories of information. See

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The defendant states that its proper legal name is Sappi North America, Inc. See Motion at 1 n.1. In the absence of
a motion to correct its name as it appears in the ECF case caption, I continue to use the name set forth therein.

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Fed. R. Civ. P. 26(a)(2)(B). If the witness need not provide a written report, unless otherwise
stipulated or ordered by the court, the disclosure must state “the subject matter on which the
witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705” and “a
summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P.
26(a)(2)(C). “A party must make these disclosures at the times and in the sequence that the court
orders.” Fed. R. Civ. P. 26(a)(2)(D).
In this case, the court’s scheduling order required the plaintiff to designate all experts
required to be disclosed pursuant to Rule 26(a)(2)(A), including treating physicians, and, with
respect to each of them, provide a complete statement of all opinions to be expressed and the basis
and reasons therefor, by December 18, 2018. See ECF No. 90 at 2.
“If a party fails to . . . identify a witness as required by Rule 26(a) . . ., the party is not
allowed to use that . . . 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 burden is on
the party that has failed to comply with discovery deadlines to establish that his failure is harmless
or substantially justified.” U.S. Bank Nat’l Ass’n v. James, Civil No. 09-84-P-JHR, 2010 WL
1416126, at *6 (D. Me. Apr. 5, 2010).
II. Factual Background
The plaintiff, a former longtime employee of the defendant, brings claims for (i) disabilitybased discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101et seq.,
and the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq., and (ii) interference with his rights
pursuant to the Family Medical Leave Act, 29 U.S.C. § 2601 et seq., in connection with his
termination from employment on March 2, 2017. Third Amended Complaint (ECF No. 81) ¶¶ 1,
81-104.

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On December 18, 2018, the plaintiff designated one expert, Morgan M. Buehner, M.D.,
whom he indicated had begun providing him care in August 2018. F.R.Civ.P. 26(a)(2)(A)
Designations (“Buehner Desig.”), Exh. 1 (ECF No. 122-1) to Motion, at 1. He stated that Dr.
Buehner had examined him and assessed him with “obstructive sleep apnea (potentially including
a sleep-wake cycle disorder), hypertension, uncontrolled type 2 diabetes mellitus,
hypercholesterolemia, depression with anxiety (associated with panic attacks and potentially
including an attention deficit disorder) and memory impairment[,]” and that, in her opinion,
“[t]hese conditions, many of which are poorly controlled, likely contributed and continue to cause
Burton difficulty with concentration, memory, and filtering outbursts.” Id.
On May 9, 2019, in response to a motion filed by the defendant to amend the parties’
scheduling order deadlines, the plaintiff indicated that “[t]he parties are faced with an evolving
diagnosis and treatment picture which is not the result of dilatory conduct by either party[.]” ECF
No. 113 at 1. He explained that, after a 20-year hiatus, he had resumed seeing Ms. Hamilton twice
a week as of March 28, 2019, and was scheduled to see a psychiatrist, Dr. Matthew Johnson, on
May 15, 2019. Id. at 3. He represented that, on May 3, 2019, his counsel had informed the
defendant’s counsel that he would “need to supplement his expert witness designation to include
counselor Hamilton and potentially Dr. Johnson[,]” and the defendant’s counsel had initially
indicated that the defendant would object. Id.
On May 23, 2019, the defendant filed a reply in support of its motion to amend the
scheduling order, arguing that “the Court should not grant Plaintiff carte blanche to reconfigure
his expert testimony, more than five (5) months after his original designation, years after his
termination, and without timely requesting an extension of his expert designation deadline.” ECF
No. 115 at 5.

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On May 31, 2019, the plaintiff designated Ms. Hamilton as a “supplemental” expert
witness. Burton’s Supplemental Expert Witness Designation (“Hamilton Desig.”), Exh. 4 (ECF
No. 122-4) to Motion. He stated that Ms. Hamilton had initially counseled him from May 1993
through October 1994 in conjunction with treating a family member and, from September 2003
through early 2004, had provided family therapy that included him. Id. He indicated that, per Dr.
Buehner’s recommendation, he had returned to Ms. Hamilton on March 28, 2019, and had been
receiving regular treatment since that time. He summarized her opinion as follows:
Hamilton believes that Burton suffers from chronic depression with anxiety. This
condition, apparently conjoined in approximately 2016 and early 2017 with
emergent memory and concentration problems, resulted in Burton experiencing
stress and incidents of emotional dysregulation at work with Sappi.
Hamilton believes that with treatment this condition can be managed, that Burton
has work capacity, and that Burton would benefit from resuming work.
Id. at [2].
On June 4, 2019, I held a teleconference with counsel to discuss the defendant’s pending
motion to amend the scheduling order, including the impact of the Hamilton and potential Johnson
designations. ECF No. 121. The plaintiff’s counsel confirmed that his client intended to designate
only two experts: Dr. Buehner and Ms. Hamilton. The defendant’s counsel requested, and I
granted, leave to file the instant motion to strike the Hamilton designation. Id. I also granted in
part the defendant’s motion to amend the scheduling order, extending its deadline to designate
expert(s) to June 18, 2019, the discovery deadline to July 19, 2019, and the Local Rule 56(h) notice
deadline to July 26, 2019, as well as moving the case from the July 2019 to the September 2019
trial list. Id.2

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On motion by the defendant, I had previously extended its expert designation deadline from January 22, 2019, to
April 19, 2019. ECF Nos. 108, 111.

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On July 2 and 3, 2019, I held two unrelated discovery teleconferences with counsel,
following which I further extended the discovery deadline to July 26, 2019. ECF No. 130.
III. Discussion
The defendant argues that the Hamilton designation should be stricken because it is
(i) untimely, having been served without leave of court nearly six months after the plaintiff’s
expert designation deadline, (ii) made in bad faith, representing “yet another attempt to recast his
claim” and “again shift the focus of his disability claim and the alleged reasoning for his
inappropriate workplace behavior” when he is already subject to an order to show cause for failure
to plead facts in earlier complaints that were within his knowledge, and (iii) incomplete, in that it
is “bereft of the basis for Hamilton’s opinions regarding Burton’s alleged chronic depression and
anxiety” and does not make clear whether “Hamilton will opine that Burton’s specific behaviors
at Sappi leading to his termination are related to an underlying medical condition or not.” Motion
at 7-9.
For the reasons that follow, I conclude that (i) the plaintiff demonstrates that his failure to
designate Ms. Hamilton by his December 18, 2018, deadline is both substantially justified and
harmless, (ii) the plaintiff meets the good cause and excusable neglect standards of Federal Rule
of Civil Procedure 6(b)(1)(B) to extend his expert designation deadline to May 31, 2019, solely
for the purpose of designating Ms. Hamilton, and (iii) the matter of the designation’s completeness
is unripe for resolution by the court.
A. Untimeliness of Designation
1. Substantial Justification
As the plaintiff observes, see Plaintiff’s Opposition to Defendant’s Motion To Strike
Supplemental Expert Witness Designation (“Opposition”) (ECF No. 123) at 7, he could not have

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timely designated Ms. Hamilton because he did not begin his recent course of treatment with her
until March 28, 2019, well past his December 18, 2018, expert designation deadline. He represents
that his counsel placed the defendant’s counsel on notice of a need to designate Ms. Hamilton as
an expert witness by May 3, 2019. See id. In any event, he placed the court, as well as the
defendant, on notice of that intention through his May 9, 2019, response to the defendant’s motion
to amend scheduling order deadlines. See ECF No. 113 at 1-3. When the defendant stated, in its
May 23, 2019, reply in support of its motion to amend scheduling order deadlines, that it would
oppose the designation, see ECF No. 115 at 2-5, the plaintiff designated Ms. Hamilton shortly
thereafter, on May 31, 2019. His designation was made within a reasonable period following his
recommencement of treatment with Ms. Hamilton on March 28, 2019.3
The defendant, nonetheless, argues that the Hamilton designation was made in bad faith,
constituting yet another attempt by the plaintiff to shift the goal posts and recast his claim – in
effect, a continuation of the conduct with respect to which he is subject to an August 23, 2018,
order to show cause why he failed to plead allegations in his Second Amended Complaint that
were based in whole or in part on records within his possession before he filed it. See Motion at
7-9 (citing Downing v. Select Rehab., Inc., No. 2:16-cv-00552-GZS, 2017 WL 3820946 (D. Me.
Aug. 31, 2017)); Order on Pending Motions and To Show Cause (ECF No. 80).
Specifically, the defendant protests that, while Ms. Hamilton plans to testify that the
plaintiff’s depression and anxiety, together with emergent memory and concentration problems,
caused him to experience stress and incidents of emotional dysregulation at work, nothing in the
Third Amended Complaint or prior complaints alleged that (i) the plaintiff suffered from

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Regardless of whether the plaintiff first mentioned the possibility of designating Ms. Hamilton to the defendant on
May 3 or May 9, my analysis remains the same.

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depression, (ii) such depression caused inappropriate workplace behaviors, or (iii) the defendant
knew about his alleged depression. See Motion at 8-9.
As a threshold matter, as the defendant acknowledges, see id. at 4, the court has made no
ruling that the plaintiff engaged in sanctionable litigation conduct. Chief Judge Levy reserved
ruling on the question of sanctions until after the entry of a verdict or the entry of an order granting
a dispositive motion. See Order (ECF No. 94).
Beyond that, the plaintiff makes a persuasive case that the Hamilton designation was not
the product of bad faith. He explains that, as of the time he filed the Third Amended Complaint,
he had not yet seen Dr. Buehner, who first concentrated on the potential significance of his anxiety
and depression during an appointment on December 14, 2018. See Opposition at 6. Indeed, when
the plaintiff designated Dr. Buehner four days later, he noted that she would opine that his
conditions, including “depression with anxiety (associated with panic attacks and potentially
including an attention deficit disorder)[,] . . . likely contributed and continue to cause Burton
difficulty with concentration, memory, and filtering outbursts.” Buehner Desig. at 1.
As the plaintiff notes, see Opposition at 8, Ms. Hamilton’s assessment “expands on” that
of Dr. Buehner in identifying depression with anxiety as contributing to “stress and incidents of
emotional dysregulation at work[,]” compare Hamilton Desig. at [2] with Buehner Desig. at 1.
Finally, as the plaintiff points out, see Opposition at 9-10, the defendant’s own forensic expert,
David J. Bourne, M.D., independently concluded after examining him on June 7, 2019, and
reviewing “voluminous” treatment and other records, that he suffers from a well-documented
major depressive disorder, recurrent and severe, with “chronic symptoms of anxiety, and a remote
history of panic attacks,” Letter dated June 13, 2019, from David J. Bourne, M.D., to Melinda
Caterine, Esq., Exh. 1 (ECF No. 123-1) to Opposition, at 1-2. In the circumstances, neither the

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plaintiff’s shift in focus to depression with anxiety nor the timing of the Hamilton designation
fairly can be characterized as the product of bad faith.
Downing is distinguishable in that, there, the defendant made no attempt to demonstrate
that its service on the plaintiff, a week prior to the close of discovery, of a supplemental report of
a previously disclosed expert that materially expanded upon its initial designation was either
justifiable or harmless. See Downing, 2017 WL 3820946, at *7.
The plaintiff, hence, demonstrates that his late designation of Ms. Hamilton is not the
product of bad faith and is substantially justified.
2. Harmlessness
The defendant argues that it will be “severely prejudice[d]” if the plaintiff is permitted to
designate Ms. Hamilton “at this late date” because it “has already expended considerable
resources” working through a discovery dispute regarding the Buehner designation, obtaining and
reviewing Dr. Buehner’s records, deposing Dr. Buehner, deposing the plaintiff’s neurologist, Dr.
Eric Dinnerstein, obtaining and reviewing Dr. Dinnerstein’s records, and arranging for Dr.
Bourne’s examination of the plaintiff so that it could designate its own expert. Motion at 5, 8.
As the plaintiff rejoins, see Opposition at 5-6, the defendant received two extensions of its
original January 22, 2019, expert designation deadline, effectively providing it approximately five
months following the plaintiff’s expert designation deadline, rather than the customary five weeks,
to designate its own expert(s). The plaintiff designated Ms. Hamilton on May 31, 2019, prior to
Dr. Bourne’s June 7, 2019, examination of the plaintiff and after the defendant had filed a motion
to extend scheduling order deadlines that was granted on June 4, 2019, extending its deadline to
designate experts to June 18, 2019. As noted above, Dr. Bourne independently concluded, as had
Dr. Buehner and Ms. Hamilton, that the plaintiff suffers from depression with anxiety. To the

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extent that the defendant asserts that it is prejudiced by a need to follow up on the Hamilton
designation prior to designating its own expert(s), as I explained during my June 4 teleconference
with counsel, the customary five weeks between the plaintiff and the defendant’s expert
designation deadlines frequently require the defendant to designate before all relevant discovery
has been completed.
Accordingly, I conclude that there is no prejudice to the defendant in the allowance of the
untimely Hamilton designation. Indeed, as I observed during the June 4, 2019, teleconference, it
would be inequitable to strike the plaintiff’s untimely but justifiably late designation of Ms.
Hamilton when the court has granted the defendant’s requests for extensions of its own expert
designation deadline.4
B. Sufficiency of Designation
Rule 26 provides, in relevant part, that, as concerns expert witnesses such as Ms. Hamilton
who need not provide a written report, “[u]nless otherwise stipulated or ordered by the court,” a
party need only disclose “the subject matter on which the witness is expected to present evidence”
and “a summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ.

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As the defendant notes, see Motion at 7, the plaintiff must separately meet the good cause and excusable neglect
standards of Rule 6(b)(1)(B) for extension of his deadline to designate experts. That rule provides, “When an act may
or must be done within a specified time, the court may, for good cause, extend the time . . . on motion made after the
time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). “Excusable
neglect is a balancing test which requires an equitable determination, taking account of all relevant circumstances
surrounding the party’s omission. These circumstances include: the danger of prejudice to the non-moving party, the
length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the movant acted in good faith.” Roberge v. Lupo LLC, 254
F.R.D. 21, 24 (D. Me. 2008) (citation and internal quotation marks omitted). While the plaintiff should have, and did
not, file a motion to extend time, he placed the court on notice of his intent to make the Hamilton designation as of
May 9, 2019, see ECF No. 113 at 3, and I discussed the matter with counsel for both sides during the June 4, 2019,
teleconference. Treating the May 9 filing and June 4 discussion as a motion to extend time, I grant the motion, finding
the requisites of Rule 6(b)(1)(B) satisfied for the same reasons as I find the late designation both substantially justified
and harmless.

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P. 26(a)(2)(C).5 As the defendant points out, the court’s scheduling order provides that, even as
to treating physicians, a party must “provide a complete statement of all opinions to be expressed
and the basis and reasons therefor[.]” Motion at 9 (quoting ECF No. 90 at 2).
The defendant argues that the Hamilton designation “is bereft of the basis for Hamilton’s
opinions regarding Burton’s alleged chronic depression and anxiety[,]” “Burton has produced no
records from Hamilton related to any treatment underlying these opinions[,]” “it is not clear if
Hamilton will opine that Burton’s specific behaviors at Sappi leading to his termination are related
to an underlying medical condition or not[,]” and it is also unclear whether Hamilton, an unlicensed
social worker, is qualified to diagnose chronic depression or anxiety or perform psychotherapy.
Motion at 9-10.
These points are unripe for court resolution in the absence of any indication that the
defendant’s counsel has made a good-faith effort to address them with the plaintiff’s counsel prior
to seeking the court’s assistance, as required by Local Rule 26(b). See, e.g., White v. Meador, 215
F. Supp.2d 215, 221 (D. Me. 2002) (“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.”).
IV.Conclusion
For the foregoing reasons, the defendant’s motion to strike the plaintiff’s expert designation
of Ms. Hamilton is DENIED.

Rule 26 requires the provision of a written report when “the witness is one retained or specially employed to provide
expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.”
Fed. R. Civ. P. 26(a)(2)(B).
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NOTICE
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 18th day of July, 2019.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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