Brown et al v. Fire Station 1 Restaurant and Brewing Company, LLC

Filing 44

MEMORANDUM ORDER denying 41 MOTION for Discovery To Exclude the Testimony of Robert C. Klapper. Signed by Judge Mark A. Barnett on 10/30/2014. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

BRUCE BROWN and MARGARET M.
BROWN,
Plaintiffs,
v.
FIRE STATION 1 RESTAURANT AND
BREWING COMPANY,
Defendant.

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Civil No.: MAB 13-CV-404

MEMORANDUM ORDER
This action arises from an incident at Defendant’s restaurant, where Plaintiffs
allege that an umbrella in the restaurant’s outdoor area hit Plaintiff Bruce Brown in the
head, causing him substantial injuries. In preparation for trial, Plaintiffs have designated
Joel Falik, M.D., and Defendant has designated Robert C. Klapper, M.D., as expert
witnesses who will testify about the nature, cause, and extent of those injuries. Plaintiffs
move, pursuant to Federal Rules of Civil Procedure 26(e) and 37(c)(1), to exclude Dr.
Klapper’s testimony, arguing that Defendant failed to provide Plaintiffs with
supplemental disclosures relevant to Dr. Klapper’s expert report and testimony. (See
generally Pls.’ Mot. Exclude, (ECF No. 41).) For the reasons provided below, the court
DENIES Plaintiffs’ motion.
I. Background
In February or March 2014, Defendant served Plaintiffs with its Rule 26(a)(2)
disclosures, in which it designated Dr. Klapper as an expert witness and provided

Plaintiffs with his expert report. (See Pls.’ Mot. Exclude Ex. 1 (“Expert Report”).) In the
report, Dr. Klapper reached the following conclusions:
[T]here is evidence of pre-existing degenerative pathology that was clearly
present at the time of the index accident . . . .
Therefore, I suspect the patient sustained orthopedic injuries that were
strictly of a soft tissue nature. . . . Given this patient’s pre-existing pathology,
it would be appropriate to extend the length of [physical therapy] treatment
up to twelve weeks. However, any residual complaints beyond this time
frame are in my opinion, due to the natural progression of the patient’s
underlying degenerative joint disease, and not as a result of the index
accident.
(Expert Report 7.) The report indicates that, to reach this conclusion, Dr. Klapper
consulted only the medical records listed within the report. (See Expert Report 2-7.)
The list does not include Dr. Falik’s expert report (the “Falik Report”), deposition
testimony, or any interrogatory answers. On August 14, 2014, when Plaintiffs deposed
Dr. Klapper, he reiterated that he reviewed only the materials listed within his report to
reach his conclusions. (Pls.’ Mot. Exclude Ex. 2 (Klapper Dep., Aug. 14, 2014) 28:523.)
Defendant noticed a de bene esse deposition of Dr. Klapper for September 11,
2014, as the parties anticipated that Dr. Klapper would provide his testimony by
videotape rather than live. When preparing for Dr. Klapper’s cross-examination during
the deposition, Plaintiffs’ counsel did not consult any depositions, interrogatory answers,
Plaintiff Bruce Brown’s medical history prior to the accident, or the Falik Report because
Dr. Klapper had not reviewed these materials when drafting his expert report. (Pls.’
Mot. Exclude 4.)
Prior to the de bene esse deposition, however, Dr. Klapper reviewed the Falik
Report and Plaintiff Bruce Brown’s deposition transcript (the “Brown Deposition”)

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because Dr. Klapper anticipated that he would not be able to observe and respond to
Dr. Falik or Plaintiff Bruce Brown’s live trial testimony. (Def.’s Opp’n 2.) During the de
bene esse deposition, Dr. Klapper explained that he had reviewed these materials:
Q Doctor, is there anything that you’ve reviewed since your first
deposition that assists you in determining cause of Dr. Brown’s neck injuries
or neck condition prior to this incident. [sic]
MR. KOPSTEIN: I’m sorry. Would you repeat the question, please?
MR. SIMMONS: Sure.
Q Is there anything that you’ve reviewed – any of the paperwork, any
of the documents, any of the depositions – that assist[s] you in defining what
the causes were for Dr. Brown’s cervical condition prior to the umbrella
incident?
....
A Yes. His deposition.
Q Tell the ladies and gentlemen of the jury why that assists you in
forming your opinions? [sic]
....
THE WITNESS: Because as was pointed out, I did not have the
opportunity of meeting this person in my office in person.
So when I was provided with the deposition where he was for a few
hours, couple of hours asked questions to fill in what happened in his past
– which as I’m saying is very relevant because it's clear based on his
objective studies that he's got problems in his neck before this accident.
Low and behold, when I read his deposition, that’s exactly what I
found.
(Pls.’ Mot. Exclude Ex. 5 (Klapper de bene esse Dep., Sept. 11, 2014) 34:3-35:10; see
Klapper de bene esse Dep. 16:23-24, 18:15-20:8.) Dr. Klapper stressed that the Falik
Report and Brown Deposition did not “at all” change his initial opinion, presented in his
expert report:
BY MR. SIMMONS
Q Doctor, let me as you as a preliminary matter. Did any of the
materials that you reviewed in Dr. Falik’s report that you were provided at
the time of your deposition in August and then Dr. – or Mr. Brown’s
deposition transcript that you’ve reviewed since, have they changed your

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opinions that you held before you reviewed those materials or are they
simply supporting materials?
....
A I totally understand. Dr. Falik’s report does not change my opinion.
And reading the deposition of Dr. – because he’s a Ph.D. – and Bruce
Brown did not change at all my opinion.
Again, the objective evidence which I hope to get to show will speak
more than I could ever speak of the pathology and the significant damage
that existed in this neck prior to this accident.
(Klapper de bene esse Dep. 20:24-21:23; see Klapper de bene esse Dep. 39:6-9,
51:19-22, 55:24-56:2; see also Klapper de bene esse Dep. 40:14-22 (affirming that he
did not read the Falik Report or Brown Deposition prior to writing his expert report),
46:1-20 (same), 47:4-18 (same).)
Defendant now asks the court to exclude Dr. Klapper’s testimony, pursuant to
Federal Rule of Civil Procedure 37(c)(1), on the grounds that Plaintiffs failed to disclose,
as required by Rule 26(e), that Dr. Klapper relied on the Falik Report and Brown
Deposition in forming his expert opinion and testimony.
II. Legal Standard
The Federal Rules of Civil Procedure require a party to disclose the identity of
any expert who may provide testimony at trial and provide a written report by the expert.
Fed. R. Civ. P. 26(a)(2)(A)-(B). The report must contain “a complete statement of all
opinions the witness will express and the basis and reasons for them,” as well as “the
facts or data considered by the witness in forming them.” Fed. R. Civ. P. 26(a)(2)(B)(i)(ii). Parties “must supplement these disclosures when required by Rule 26(e).” Fed. R.
Civ. P. 26(a)(2)(E). Rule 26(e), in turn, requires that:
[a] party who has made a disclosure under Rule 26(a) . . . must supplement
or correct its disclosure or response: (A) in a timely manner if the party
learns that in some material respect the disclosure or response is

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incomplete or incorrect, and if the additional or corrective information has
not otherwise been made known to the other parties during the discovery
process or in writing.
Fed. R. Civ. P. 26(e).
If a party fails to make these supplemental disclosures, “the party is not allowed
to use that information or witness to supply evidence . . . at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). To determine whether a
failure to disclose is “substantially justified or harmless,” the Fourth Circuit examines the
following five factors:
(1) the surprise to the party against whom the evidence would be offered;
(2) the ability of that party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the importance of the
evidence; and (5) the nondisclosing party's explanation for its failure to
disclose the evidence.
S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.
2003) (citation and quotation marks omitted). A party need not have acted in bad faith
or “callous disregard of the discovery rules” for the sanction to apply. Id. at 596.
III. Discussion
The first issue before the court is whether Defendant was obliged to provide
Plaintiffs with a supplemental disclosure because of Dr. Klapper’s alleged use of the
Falik Report and Brown Deposition as bases for his expert opinion and testimony.
Pursuant to Federal Rule of Civil Procedure 26(a)(2)(E), Defendant should have
disclosed these materials (1) if it had learned that (1) “in some material respect” its prior

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disclosures were “incomplete or incorrect,” and (2) “if the additional or corrective
information ha[d] not otherwise been made known to the other parties during the
discovery process or in writing.” Fed. R. Civ. P 26(e) (emphasis added); see Fed. R.
Civ. P. 26(a)(2)(E). The Falik Report and Brown Deposition meet neither of these
factors.
In his expert report, Dr. Klapper opined that the symptoms Plaintiff Bruce Brown
continued to experience twelve weeks after the umbrella hit him in the head stemmed
from the “natural progression of [an] underlying degenerative joint disease, and not as a
result of the . . . accident.” (Expert Report 7.) After reading the Falik Report and Brown
Deposition, Dr. Klapper reached the same conclusion:
How long does that [the injury sustained by Plaintiff Bruce Brown]
take to heal? It’s like a black and blue mark that all of us have had. Black
and blue mark turns green and then yellow and goes away. Usually in about
six weeks.
But because of his significant preexisting pathology of arthritis, you
should double it. Even though he has the same soft tissue injury that a 20
year old would be better in six weeks from a bruise, because of his arthritis,
12 weeks.
....
But any persistent treatment or pain after 12 weeks is related to the
preexisting condition and is not related to the soft tissue injury that occurred
in this accident.
(Klapper de bene esse Dep. 29:1-16; see Klapper de bene esse Dep. 25:16-19, 27:1525.) As Dr. Klapper himself stated, the Falik Report and Brown Deposition merely
corroborated his initial opinions. (See Klapper de bene esse Dep. 35:16-39:9
(explaining how materials buttressed conclusions within his expert report); see also
Klapper de bene esse Dep. 20:24-21:23, 51:19-22, 55:24-56:2 (averring that new
materials did not alter his opinion).) In such circumstances, the court cannot conclude
that the Falik Report or Brown Deposition affected Dr. Klapper’s testimony in any
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“material respect,” thereby triggering Defendant’s duty to supplement its disclosures.
Tracinda Corp. v. DaimlerChrysler AG, 362 F. Supp. 2d 487, 506-07 (D. Del. 2005)
(quoting Fed. R. Civ. P. 26(e)(1)); see Curet-Velazquez v. Acemla de Puerto Rico, Inc.,
656 F.3d 47, 56 (1st Cir. 2011).
In addition, the Falik Report and Brown Deposition were already well-known to
Plaintiffs during the course of discovery. The deposition is that of one of the plaintiffs in
this case, and Defendant had access to the Falik Report only because Dr. Falik is
Plaintiffs’ expert witness, and Plaintiffs produced his report and provided it to Defendant
during discovery. Defendant therefore was not required to supplement its disclosures
with either of these documents pursuant to Rule 26(e). Curet-Velazquez, 656 F.3d at
56-57 (citing Brennan’s Inc. v. Dickie Brennan & Co., 376 F.3d 356, 375 (5th Cir.
2004)); Marvel Worldwide, Inc. v. Kirby, 777 F. Supp. 2d 720, 727 (S.D.N.Y. 2001), aff’d
in part and vacated in part on other grounds, 726 F.3d 119 (2d Cir. 2013); see Universe
Antiques, Inc. v. Vareika, No. 10-CV-3629, 2011 WL 5117057, at *4-5 (S.D.N.Y. Oct.
21, 2011). 1 The court therefore will not exclude Dr. Klapper’s testimony pursuant to
Rule 37(c).
IV. Conclusion
For the foregoing reasons, the court DENIES Plaintiffs’ motion to exclude.

/s/
Mark A. Barnett, Judge
United States Court of International Trade
(sitting by designation)
Date: October 30, 2014
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Because Defendant had no duty to provide Plaintiffs with a supplemental disclosure,
the court does not reach whether Defendant’s failure to exclude was substantially
justified or harmless.
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