Cabi et al v. Boston Children's Hospital et al

Filing 273

Magistrate Judge Donald L. Cabell: ORDER entered. MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO STRIKE THE LATE AND IMPROPER REBUTTAL REPORT OF DR. MEHMET TONER denying 235 Motion to Strike. (Russo, Noreen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SERKAN CABI, PH.D., ISIN CAKIR,
PH.D., and SAFAK MERT, PH.D,
Plaintiffs,

No. 15-cv-12306-DJC

v.
BOSTON CHILDREN’S HOSPITAL, THE
CHILDREN’S HOSPITAL
CORPORATION, AND ITS AFFILIATED
ENTITIES, UMUT OZCAN, M.D., and
JOSEPH MAJZOUB, M.D.,
Defendants.

MEMORANDUM OF DECISION AND ORDER ON
DEFENDANTS’ MOTION TO STRIKE THE LATE AND IMPROPER REBUTTAL
REPORT OF DR. MEHMET TONER (DKT. NO. 235)
CABELL, U.S.M.J.
Serkan Cabi, Isin Cakir, and Safak Mert (collectively “the
plaintiffs”)

have

brought

various

employment

discrimination and retaliation claims against

related

the defendants,

Boston Children’s Hospital, the Children’s Hospital Corporation,
Dr.

Umut

Ozcan

and

Dr.

Joseph

Majzoub

(collectively

“the

defendants”). The present motion arises in the course of a dispute
concerning expert discovery.

The defendants contend that the

rebuttal report of the plaintiffs’ expert, Dr. Mehmet Toner, is
untimely and improper and therefore should be stricken.

(Dkt. No.

235).

Following consideration of the parties’ submissions, the

defendants’ motion to strike is DENIED.
I.

RELEVANT BACKGOUND
Per the court’s pre-trial schedule, expert disclosures were

due on or before April 28, 2017, and expert discovery was to be
completed by June 16, 2017.

(Dkt. No. 188).

Consistent with the

schedule, both parties filed their respective expert disclosures
on April 28, 2017. The plaintiffs’ experts included, among others,
Dr. Mehmet Toner.
On

May

30,

2017,

the

defendants

filed

rebuttal

reports

authored by Dr. Barbara Bierer and Dr. Ron Rosenfield to rebut Dr.
Toner’s opinions as set out in his affirmative expert report.
plaintiffs did not file any rebuttal reports at this time.

The

(Dkt.

No. 236).
The defendants subsequently noticed Dr. Toner’s deposition
for June 14, 2017.

On June 12, 2017, two days before Dr. Toner’s

deposition, the plaintiffs filed a report authored by Dr. Toner;
this

report

purported

to

rebut

the

opinions

offered

in

the

affirmative and rebuttal reports of Drs. Bierer and Rosenfield.
II.

LEGAL STANDARD

Under Rule 26 of the Federal Rules of Civil Procedure, where
the court does not otherwise set a relevant deadline, if an expert
report “is intended solely to contradict or rebut evidence on the
same subject matter identified by another party,” such a disclosure
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must be made “within 30 days after the other party’s disclosure.”
Fed. R. Civ. P. Rule 26(2)(D)(ii).

“A rebuttal report may cite

new evidence and data so long as the new evidence and data is
offered to directly contradict or rebut the opposing party’s
expert.”

Glass Dimensions, Inc., ex rel. v. State Street Bank &

Trust Co., 290 F.R.D. 11, 16 (D. Mass. 2013).

“The expert

disclosure requirements are not merely aspirational, and courts
must deal decisively with a party’s failure to adhere to them.”
Lohnes v. Level 3 Communications, Inc., 272 F.3d 49, 60 (1st Cir.
2001).

In that regard, “district courts have broad discretion in

meting out . . . sanctions for Rule 26 violations.”
Bayard v. Batlle, 295 F.3d 157, 162 (1st Cir. 2002).
First

Circuit

has

acknowledged

“that

preclusion

LaplaceWhile the
of

expert

testimony is a grave step, not to be undertaken lightly, it is
nonetheless among the arrows in the trial court’s Rule 26(e)
quiver, available for use in suitable cases.”

Thibeault v. Square

D Co., 960 F.2d 239, 247 (1st Cir. 1992).
III. ANALYSIS
The defendants move to strike Dr. Toner’s rebuttal report
primarily

on

the

ground

that

prejudicial to the defendants.

it

is

untimely

and

therefore

In particular, the defendants note

that the plaintiffs served Dr. Toner’s report almost two weeks
after the deadline for rebuttal reports, and only 48 hours prior
to Dr. Toner’s noticed deposition.
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(Dkt. No. 236).

The court

agrees with the defendants that Dr. Toner’s rebuttal report is
untimely.

Since the court did not set a deadline for rebuttal

reports in its scheduling order, the thirty-day default under Rule
26(2)(D)(ii) applied; accordingly, since expert disclosures were
due on or before April 28, 2017, rebuttal reports were due by May
30, 2017.

Dr. Toner’s rebuttal report was unquestionably untimely

because it was not served until almost two weeks later.
The plaintiffs aver that should any portions of Dr. Toner’s
rebuttal report
categorized

as

disclosures.
here,

Dr.

be
a

deemed as untimely,

supplemental

report

to

it should
Dr.

instead be

Toner’s

initial

While this may circumvent the untimeliness issue
Toner’s

June

12

report

cannot

be

appropriately

categorized as a supplemental report.
Under Rule 26, expert reports may be supplemented in a “timely
manner” if the initial disclosure “is incomplete, or incorrect.”
Fed. R. Civ. P. 26(e)(1)(A).

In his June 12 report, Dr. Toner

does not purport to clarify or otherwise correct the opinions and
conclusions contained in his initial disclosures.

Rather, as the

court understands it, the purpose of the June 12 report is to
respond directly to the opinions and conclusions of Drs. Beirer
and Rosenfield, critique their methodology and characterization of
the evidence, and draw conclusions favorable to the plaintiffs.
(Dkt. No. 239).

As such, Dr. Toner’s June 12 report falls squarely

within the definition of a rebuttal report as contemplated by the
4

Rules of Civil Procedure. See Glass Dimensions, Inc., 290 F.R.D at
16 (internal quotations omitted) (an expert report qualifies as a
rebuttal report if it is intended solely to contradict or rebut
evidence on the same subject matter identified by the opposing
party’s expert report”).

Indeed, Dr. Toner himself introduces the

report as a “rebuttal report.”

Therefore, despite the plaintiffs’

attempts to characterize it as otherwise, Dr. Toner’s June 12
report is, in substance and effect, a rebuttal report.
Nevertheless, the court does not believe that striking Dr.
Toner’s

rebuttal

report

is

an

appropriate

sanction

here.

On

balance, while the plaintiffs were late in filing Dr. Toner’s
rebuttal, the defendants have not shown that they have suffered
any harm or prejudice by the untimely filing.

Bay State Sav. Bank

v. Baystate Financial Services, LLC, No. 03-40273-FDS, 2007 WL
6064455, at *7 (D. Mass. 2007) (“Rule 37(c)(1) contains a narrow
escape hatch that allows courts to admit untimely evidence if the
proponent’s

failure

to

reveal

justified or harmless.”).

it

was

either

substantially

The defendants aver that the untimely

filing was sufficiently harmful and prejudicial, in that it was
served 48 hours prior to Dr. Toner’s noticed deposition, and,
presumably, the defendants did not have an adequate opportunity to
prepare for the deposition.

(Dkt. No. 236).

However, as the court

understands it, the deposition did in fact take place as scheduled,
and the defendants availed themselves of the opportunity to fully
5

question Dr. Toner as to the substance of his initial disclosure
and the rebuttal report at issue here.

As the defendants were

able to fully depose Dr. Toner, and no scheduling order previously
in place was otherwise disrupted, the untimely filing was not, in
this court’s view, sufficiently harmful or prejudicial to the
defendants to warrant striking the report.
An

additional

point

bears

noting

with

respect

substantive content of Dr. Toner’s rebuttal report.

to

the

Independent

of the untimeliness issue, the defendants move to strike the
rebuttal

report

on

the

ground

that

Dr.

Toner

opines

on

the

credibility and motivations of the defendants and their witnesses.
(Dkt. No. 239).

To the extent the rebuttal report contains any

statements or opinions by Dr. Toner pertaining to credibility,
motivations,

or

intent,

categorically improper.

those

statements

and

opinions

are

See e.g., United States ex rel. Dyer v.

Raytheon Corp., No. 08-10340-DPW, 2013 WL 5348571, at *13 (D. Mass.
Sept. 23, 2013)(excluding testimony that defendant “knowingly
misrepresented results” because no expert is qualified to testify
as to another’s state of mind); Holmes Grp., Inc. v. RPS Products,
Inc., No. 03-40146-FDS, 2010 WL 7867756, at *5 (D. Mass. June 25,
2010) (“[a]n expert witness may not testify as to another person’s

6

intent . . .[n]o level of experience or expertise will make an
expert witness a mind-reader.”).1
IV.

CONCLUSION

For the foregoing reasons, the defendants’ Motion to Strike
the Late and Improper Rebuttal Report of Dr. Mehmet Toner is
DENIED.
SO ORDERED.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED:

September 13, 2017

The defendants make one additional argument in support of their motion. The
defendants aver that Dr. Toner’s rebuttal report should be stricken because it
is “incomplete” in that Dr. Toner indicated that he produced the rebuttal report
under time constraints, and intended to supplement the opinions contained in it
with yet another report, to be produced in the foreseeable future. (Dkt. No.
236). While the court is not presented with the issue, it bears remarking that
any report produced at this point would almost surely be untimely and per se
prejudicial.
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