Harmon v. United States of America

Filing 74

MEMORANDUM OPINION/ORDER granting 63 Motion to Strike. Signed by Judge Paula Xinis on 3/15/2018. (jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
EDWARD HARMON
:
v.

:
:

Civil Action No. 15-2611

UNITED STATES OF AMERICA

:

MEMORANDUM OPINION
I.

Background

Pending in this medical malpractice action is Plaintiff Edward Harmon’s Motion to Strike
the Supplemental Expert Reports of Defense nephropathologist, Dr. Cinthia Drachenberg (in its
entirety) and Defense nephrologist D. Richard Ugarte (in part). (ECF No. 63). The matter was
discussed during the recorded status conference held on March 15, 2018. The Court has received
briefing. Upon consideration, the Court GRANTS the motion.
This case has been pending since September 2015, with formal discovery having closed
fifteen months ago, on December 9, 2016. After the Court resolved the parties’ cross motions for
summary judgment by written memorandum opinion and order dated September 15, 2017, the
Court permitted limited additional discovery on damages only. Specifically, although the Court
denied the Government’s motion to exclude Plaintiff’s expert nephrologist, Dr. Gehr, regarding
his opinion on Harmon’s prognosis for reaching end stage renal failure (and thus when he would
need a kidney transplant), the Court permitted Dr. Gehr to update and refine his opinion on the
timeline for such necessary follow-up care. See ECF No. 65, Hearing Tr. pps. 96-100. In fact, at
the end of the motions hearing, the Government expressly confirmed for the Court that it
understood the contemplated “supplemental discovery” to be “on the plaintiff’s damages expert.”
Id. at 107.

Thereafter, in pleadings and in another recorded status conference with this Court, the
Government reaffirmed that it understood the supplemental discovery to be limited to the
Plaintiff’s damages profile only. On October 31, 2017, for example, the Government urged this
Court to amend the pretrial scheduling order so that its experts could fully respond to Plaintiff’s
damages report. The Government wrote, “Defense counsel also advised that she would provide
this updated expert information to her damages experts, who may also wish to revise their
opinions in light of both Mr. Harmon’s new lab results and the updated damages opinions of
Plaintiff’s experts.” ECF No. 51 (emphasis added). The Government again on November 3, 2017
persisted to this Court that it needed more time to secure supplemental damages opinions
specifically because “[f]ull settlement authority cannot be granted without analysis of Plaintiff’s
updated damages analysis.” ECF No. 53, p. 2 (emphasis added). Then, on November 17, 2017,
during a recorded status conference with the Court, the Government again pressed for additional
time because its “damages experts are still reviewing Dr. Gehr’s updated reports.” ECF No. 56,
Rec. Conf. 11/17/2017 (emphasis added). At no point did the Government ever communicate to
Plaintiff’s counsel or to this Court that it was even contemplating a revision of opinions as to
causation in this matter.
Harmon now argues that this Court should strike Dr. Drachenberg’s supplemental expert
report in toto because she now offers a new opinion on causation based on old evidence, namely
her examination of pathology slides. Harmon further urges that this Court strike Dr. Ugarte’s
supplemental expert report to the extent his new opinion relies on Dr. Drachenberg’s new
opinion.

The Government claims that the supplemental opinions are responsive to Gehr’s

updated damages opinion, and that any surprise may be cured between now and trial.
II.

Analysis

Pursuant to Federal Rule of Civil Procedure 37(c)(1), “[i]f a party fails to provide
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information or identify a witness as required . . . 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.” To determine whether nondisclosure was substantially
justified or harmless, courts look to 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 non-disclosing party’s
explanation for its failure to disclose the evidence.
S. States Rack And Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).
“The first four factors . . . relate primarily to the harmlessness exception, while the last factor . . .
relates mainly to the substantial justification exception.” Bresler v. Wilmington Trust Co., 855
F.3d 178, 190 (4th Cir. 2017). “The burden of establishing these factors lies with the nondisclosing party[.]” Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014).
The Court agrees that Drs. Drachenberg and Ugarte offer new opinions on causation
based on old evidence, all of which goes well beyond the narrow and limited damages discovery
flowing from Dr. Gehr’s supplemental report. During the discovery period, Dr. Drachenberg’s
made clear in deposition that she did not intend to offer any opinion on what caused Harmon’s
initial elevated creatinine; she also confirmed that she had reviewed the pathology slides in
advance of her deposition. ECF No. 63-2, pp. 16-19.1
Now, well over a year after formal discovery has closed, and in response to this Court’s
limited supplemental damages discovery, Dr. Drachenberg’s proffered opinion centers on
Harmon’s “Crohn’s disease itself” as “an important cause of Mr. Harmon’s chronic kidney

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The Government also confirmed that Dr. Drachenberg reviewed the Trichome in
January of 2017. Accordingly, by January 2017, fourteen months ago, Dr. Drachenberg had
reviewed all slide pathology on which she bases her supplemental opinions. ECF No. 63-6.
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damage.” ECF No. 63-6. The supplemental report goes on to opine as to the difference between
“acute” and “chronic” components of her review of the pathology slides, concluding ultimately
that “to a reasonable degree of medical certainty,” Harmon’s pathology “cannot be attributed
purely to Mesalamine, but can be attributed to Crohn’s.” Id. It is remarkable, and quite stunning,
that despite Dr. Drachenberg claiming her supplemental opinions are “generated after
evaluation” of Dr. Gehr’s supplemental damages report, not once does she refer to Dr. Gehr’s
report in when setting out her supplemental opinions. ECF No. 63-6. Dr. Gehr’s supplemental
opinion, in short, appears irrelevant to Dr. Drachenberg’s supplemental report. As to Dr.
Ugarte’s supplemental report, he relies exclusively on Dr. Drachenberg’s supplemental opinions
on the significance of the slide pathology to undergird the lion’s share of his new opinions. ECF
No. 63-7.
Given the context in which limited damages discovery was permitted, it is beyond dispute
that the Plaintiff is surprised by these new opinions. The very reason why experts are asked at
deposition to state expressly the limits of their opinions is to provide fair notice of that which the
Plaintiff needs to contend at trial. Plaintiff did just that here, only to be whipsawed with new
opinions on causation based on old evidence.
With regard to curing the surprise, the Plaintiff’s opportunities are limited. Trial is a
month away. Motions in limine and pretrial statements are due tomorrow. These new opinions on
causation – essentially attempting to apportion Harmon’s kidney injury between Crohn’s and the
side effects of Mesalamine – are new, complex and subject to robust challenge. It will cost
precious time and money to rebut these opinions, thus rendering it difficult, if not impossible, to
fashion any equitable cure to the surprise. Nor will this Court continue the trial that has been set
for many months in a case of this magnitude to accommodate the Government’s late disclosure,

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especially when the challenged supplemental reports make little to no reference to Dr. Gehr’s
supplemental opinions on damages.
The Government asserts that these supplemental opinions are “important” to its defense,
and refers this Court to other Courts that have allowed similar late disclosures. The cases on
which the Government relies are not persuasive here. See e.g., Tucker v. Ohtsu Tire & Rubber
Co. Ltd., 49 F. Supp. 2d. 456 (D. Md. 1999) (allowing supplement of expert opinion four months
before trial, and ten days before close of discovery); Baptiste v. Bat’l R.R. Passenger Corp.,
CBD-14-3279 2015 WL 5714103 (allowing supplemental expert opinion where no trial date set).
The Court also notes that while the Government believes its opinions important, the
opinions are also new, complex, and based on evidence long known to the Government. Chief
among the new opinions is the Government’s attempt to apportion the injury in terms of relative
percentages of harm caused by Harmon’s Crohn’s disease versus Mesalamine exposure. In
Maryland, “apportionment of damages is appropriate only where the injury is reasonably
divisible and where there are two or more causes of the injury.” Carter v. Wallace & Gale
Asbestos Settlement Trust, 439 Md. 333, 348 (2014) (emphasis added). Where the injury is not
reasonably divisible, the Plaintiff is entitled to full recovery if Plaintiff shows that Defendant’s
negligence is a substantial factor in causing injury to him. Id. at 350.
Throughout the pendency of this litigation, however, the Government has never
contended that the injury to Harmon’s kidneys is reasonably divisible so that damage arising
from Crohn’s, if any, can be separated from the damage arising from Mesalamine exposure.
Whether kidney injury can scientifically be apportioned is its own elusive concept. Harmon will
not be made to reinvent his entire case to deal with this new opinion at this juncture.
The Government attempts to cast this supplemental discovery as related to damages. This

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is not quite accurate. The Government’s apportionment theory first requires the Court to accept
its new opinions as to causation. These new opinions include not only that Harmon’s kidney
injury was caused by both Crohn’s and Mesalamine exposure, but also that this injury is
medically divisible and reasonably capable of apportionment. Despite the slide pathology having
been available for quite some time, the Government has never offered these opinions until
shortly before trial. Nor has the Government offered sufficient explanation for the delay.2 The
Government, in short, has failed to demonstrate that its late disclosure of these opinions is
substantially justified or harmless. See F. R. Civ. P 37(c). The motion to strike is, therefore,
GRANTED.

March 15, 2018

/S/
Paula Xinis
United States District Judge

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The Government argued at today’s hearing that it was “surprised” at Harmon’s
accelerated rate of decline in kidney function which is why its experts’ supplemental opinions
were unforeseen. However at the September 2017 motions hearing, the very issue of Harmon’s
accelerated rate of decline was discussed in detail. See ECF No. 65, p. 96. (Hall representing that
Harmon is “at Stage 3B of CKD. He’s almost at Stage 4. If this trial isn’t until some time next
year, it’s possible he could come in here on dialysis. That’s how much he’s fallen off the
cliff.”)(Emphasis added). The Government’s “surprise” argument is unavailing.
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