Colligan v. Mary Hitchcock Memorial Hospital et al

Filing 34

ORDER granting in part 22 Motion to Exclude. Motion is granted to the extent that a sanction is ordered against the defendant as outlined in this order. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
R. Lacey Colligan, M.D.
v.

Civil No. 16-cv-513-JD
Opinion No. 2018 DNH 122

Mary Hitchcock Memorial
Hospital and Dartmouth Hitchcock
Clinic

O R D E R
The plaintiff, R. Lacey Colligan, M.D., brought suit
against Mary Hitchcock Memorial Hospital and Dartmouth Hitchcock
Clinic, alleging disability discrimination and infliction of
emotional distress that arose from an incident that caused the
defendants to terminate a business relationship with her and bar
her from their property.

The plaintiff moves to exclude the

defendants’ expert witness, Bonnie Michelman, pursuant to
Federal Rule of Civil Procedure 37(c)(1).

The defendants object

to the motion.
Standard of Review
Federal Rule of Civil Procedure 26(a)(2) governs disclosure
of expert witnesses and related information.

For expert

witnesses who are required to provide a written report, the
report must include, among other things, “the facts or data

considered by the witness in forming [the opinions stated in the
report],” the witness’s qualifications along with a list of all
publications over the past ten years, “a list of all other cases
in which, during the past 4 years, the witness testified as an
expert at trial or by deposition,” and a statement of the
compensation to be paid to the witness.

Rule 26(e) requires

timely supplementation of disclosures made under Rule 26(a).
Rule 37(c)(1) provides:

“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 trial,
unless the failure was substantially justified or is harmless.”
Rule 37(c)(1) provides additional or alternative sanctions of
ordering the party to pay reasonable expenses, informing the
jury of the party’s failure, and the sanctions listed in Rule
37(b)(2)(A).

Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72,

77-78 (1st Cir. 2009).

A party who fails to comply with Rule

26(a) or (e) bears the burden of showing that the failure was
substantially justified or harmless.

Wilson v. Bradlees of New

England, Inc., 250 F.3d 10, 21 (1st Cir. 2001).

2

Background1
The plaintiff alleges that the defendants hired her,
through a contract with her company, Sharp End Advisory, LLC, as
a research consultant.

As of January 1, 2015, the plaintiff

became an adjunct assistant professor in the department of
pediatrics at the Geisel School of Medicine at Dartmouth
College.

She further alleges that she was a patient at

Dartmouth-Hitchcock and that she had a diagnosis of posttraumatic stress disorder and depression.
During the time of the events pertinent to this case, Dr.
John Birkmeyer was an executive vice president of DarthmouthHitchcock, chief academic officer, and program director for a
project funded by a grant from an agency within the United
States Department of Health and Human Services.
also contributed to the grant.

The plaintiff

During the summer of 2015, Dr.

Birkmeyer held meetings at Dartmouth-Hitchcock to announce new
and contentious plans to address budgetary concerns, which
included consolidation of the pediatrics department.

The

The background information is summarized from the
plaintiff’s amended complaint and the allegations in the motion
to exclude and the objection. The summary provides a context
for deciding the plaintiff’s motion to exclude and does not
provide findings of fact or any conclusions based on alleged
facts.
1

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plaintiff opposed the budgetary restrictions and consolidation
plans.
About 8:00 on the morning of September 1, 2015, the
plaintiff was walking near her home when she alleges that she
saw someone in a car across from the Birkmeyers’ home taking
pictures and she thought she recognized the person as someone
who had recently been terminated by the defendants.

The

Birkmeyers’ house was in the midst of a construction project,
and the plaintiff went to an open side door, where workers were
entering the house.

A worker directed her to the front door.

Dr. Birkmeyer’s wife met her at the front door.
plaintiff said to Mrs. Birkmeyer:

The

“I want you to know that we

don’t like what Dr. Birkmeyer is doing and we all know where you
live.”

Mrs. Birkmeyer was concerned and called her husband at

work to report the incident.

Soon after the incident, the

plaintiff went back to the Birkmeyers’ house and left flowers
and a note of apology.
Dr. Birkmeyer contacted the head of human resources at
Dartmouth-Hitchcock to report the incident.
the incident to the Hanover police.

He also reported

The Birkmeyers secured

their home and took measures to protect their family.
Based on Dr. Birkmeyer’s report, the defendants immediately
decided to terminate their relationship with the plaintiff.
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Later on September 1, the director of employee relations
notified the plaintiff of that decision.

The defendants also

limited the plaintiff’s access to and use of the DartmouthHitchcock system, including barring her from the defendants’
property except in cases of medical emergency and to attend
scheduled medical appointments as a patient, in which case she
was required to contact security before she arrived.
The plaintiff brought this action on November 18, 2016.
The defendants disclosed Bonnie Michelman as their expert
witness on December 4, 2017, and provided the plaintiff with
Michelman’s report.

Michelman is currently, and has been since

1991, “Executive Director of Police, Security, and Outside
Services” at Massachusetts General Hospital.

Michelman did not

disclose in her report any publications, other cases where she
served as an expert, or the compensation she is being paid in
this case.

She also did not supplement her report to list other

materials that she reviewed after her report was submitted and
before her deposition.
The plaintiff’s counsel deposed Michelman on April 6, 2018.
During the deposition, it became apparent that Michelman had
reviewed documents not disclosed in her report, had participated
in other cases, and had authored publications that were not
disclosed.

In addition, Michelman refused to answer questions
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about policies and procedures at Massachusetts General Hospital,
where she has worked for the past twenty-seven years.

After the

deposition, counsel for the defendants provided information
about Michelman’s publications, prior case participation, and
compensation.
Discussion
The plaintiff moves to exclude Michelman as an expert in
this case because of the defendants’ failure to properly
disclose information related to her opinions and because of her
refusal to answer questions during her deposition.

The

defendants object to the motion, arguing that their failures to
make timely disclosures were inadvertent and harmless.

They

also argue that Michelman provided sufficient bases for her
opinions and was not required to disclose information about the
policies and procedures at Massachusetts General Hospital, which
they characterize as proprietary information.
A.

Expert Report
The defendants acknowledge that Michelman’s report did not

disclose all of the information required under Rule 26(a)(2)(B).
They argue, however, they complied with the requirements because
some of the information was disclosed during Michelman’s
deposition, some was disclosed after the deposition, and other

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information was not material to her opinions.
that any delay is harmless.
1.

They also contend

The plaintiff disagrees.

Timely Disclosure

Rule 26(a)(2)(B) requires the listed information to be
disclosed as part of the expert report, that is the “report must
contain” the listed information.

Supplementation, under Rule

26(e), must be timely and pertains to information learned after
the required initial disclosures have been made.

See Downing v.

Select Rehabilitation, Inc., 2017 WL 3820946, at *7 (D. Me. Aug.
31, 2017).

The purpose of Rule 26(a)(2)(B) and the disclosures

it requires is to allow counsel to prepare for depositions and
cross-examination and to determine whether to obtain expert
witnesses of their own.

Rembrandt Vision Techs., L.P. v.

Johnson & Johnson Visioin Care, Inc., 725 F.3d 1377, 1381 (Fed.
Cir. 2013); Walsh v. Chez, 583 F.3d 990, 994 (7th Cir. 2009);
Laplace-Bayard v. Batile, 295 F.3d 157, 162 (1st Cir. 2002);
Williams v. Techtronic Indus. N. Am., Inc., 2014 WL 2865874, at
*4 (D. Mass. June 23 2014); AVX Corp. v. Cabot Corp., 252 F.R.D.
70, 78 (D. Mass. 2008).
To the extent the defendants contend that their disclosures
during Michelman’s deposition and after were timely, they are
mistaken.

Michelman’s report was provided on December 4, 2017,

which is when all information required under Rule 26(a)(2)
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should have been provided.
four months later.

She was deposed on April 6, 2018,

Generally, parties cannot cure a deficient

expert report with later deposition testimony, and the
defendants have not shown that a different standard should apply
here.

MMG Ins. Co. v. Samsung Elecs. Am., Inc., 293 F.R.D. 58,

61 (D.N.H. 2013).

Therefore, the missing information was not

timely disclosed under Rule 26(a)(2), and the defendant’s
failure to disclose invokes sanctions under Rule 37(c) unless
the defendants’ failure was substantially justified or harmless.
2.

Justified or Harmless

The defendants do not argue that their failure to comply
with the requirements of Rule 26(a)(2)(B) is substantially
justified.
disclosures.

They offer no reasons or justification for the late
Instead, they argue that their failure to disclose

the required information until Michelman’s deposition and after
the deposition is harmless.
In support, they contend that the plaintiff’s counsel was
able to ask Michelman about some of the information when it was
disclosed during the deposition.

They also suggest that

“nothing prevents her from deposing Ms. Michelman again or
seeking additional information.”

The court is not persuaded.

As is noted above, the purpose of the disclosure
requirements in Rule 26(a)(2)(B) is to allow counsel to prepare
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to depose the expert witness and to decide whether to engage an
expert.

That purpose is thwarted when the proponent of the

expert fails to provide the required information with the
report, which is disclosed long before the expert’s deposition.
The appropriate sanction for the violation is discussed below.
B.

Deposition
The plaintiff also seeks sanctions against the defendants

based on Michelman’s refusal to answer certain questions during
her deposition.

The plaintiff argues that the failure to

provide that deposition testimony violates the requirement that
an expert provide “a complete statement of all opinions the
witness will express and the basis and reasons for them.”
R. Civ. P. 26(a)(2)(B)(i).

Fed.

As noted above, however, the

information required by Rule 26(a)(2)(B)(i) must be provided
with the expert’s report, not in a deposition.

As a result,

Michelman’s refusal to answer certain deposition questions does
not appear to implicate Rule 26(a)(2)(B)(i).2

To be clear, the plaintiff does not challenge Michelman’s
qualifications as an expert under Federal Rule of Evidence 702
or move to compel Michelman to answer the refused questions
under Federal Rule of Civil Procedure 37(a)(3)(i).
2

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C.

Sanction
The appropriate sanction under Rule 37(c) for violation of

Rule 26(a)(2)(B) is determined based on five factors that assess
the impact of the violation and the sanction.
Realty, LLC, 830 F.3d 8, 13 (1st Cir. 2016).
are:

Paolino v. JF
The five factors

“(1) the history of the litigation; (2) the sanctioned

party’s need for the precluded evidence; (3) the sanctioned
party’s justification for its late disclosure; (4) the opponentparty’s ability to overcome the late disclosure’s adverse
effects; and (5) the late disclosure’s impact on the district
court’s docket.”

Id.

“When preclusion of expert testimony

would have “serious consequences to the disposition of the case,
‘the justification for it must be comparatively more robust.’”
Andrews v. Target Pharmacy, 714 Fed. Appx. 4, 6 (1st Cir. 2017)
(quoting Esposito, 590 F.3d at 77-78).
The defendants assert that Michelman is a significant
witness in this case because her testimony is expected to
corroborate the defendants’ determination that the plaintiff was
a security risk and the defendants’ actions taken based on that
determination.

See Paolino, 830 F.3d at 14 (citing Esposito and

discussing the need for serious consequences in disposition of
the case to avoid exclusion).

While the defendants offer no

justification for waiting six months to complete the disclosures
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required under Rule 26(a)(2)(B), they apparently have now
provided the required disclosures.

Of note, the deadlines for

disclosing expert witnesses and their reports is long past, as
is the deadline for challenging expert testimony.

Fact

discovery is complete.
Ordinarily, under these circumstances, exclusion of the
witness would be the appropriate sanction.
37(c)(1).

Fed. R. Civ. P.

The defendants suggest that the plaintiff could

redepose Michelman to cure any harm their failures have caused.
Because of the restrictions on the sanction of exclusion imposed
by Esposito, the court orders an alternative sanction pursuant
to Rule 37(c)(1)(A), as provided below.
Conclusion
For the foregoing reasons, the plaintiff’s motion to
exclude the defendants’ proposed expert witness (document no.
22) is granted to the extent that a sanction is ordered against
the defendants as follows:
(1) The defendants shall make Michelman available for a
second deposition at the convenience of the plaintiff’s counsel.
(2)

The defendants shall provide all of the information

and disclosures that are required under Rule 26(a)(2)(B), in
writing and in a single package, even if the some or all of the
same information has been produced previously.
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The disclosure

package shall be provided to the plaintiff’s counsel on or
before June 22, 2018.
(3)

The defendants shall pay all costs associated with the

second deposition of Michelman, including all of the plaintiff’s
attorneys’ fees and costs that are incurred in preparation for
the deposition, in conducting the deposition, and, if necessary
and successful, in compelling her deposition testimony.
(4)

Because of the delay that the second deposition will

cause, the deadline for challenging the defendants’ expert
witness will be extended to a date after the deposition is held.
That date shall be submitted by the defendants in an assented-to
motion to amend the discovery order.
(5) If the defendants choose not to comply with the
requirements of this sanction, Michelman will be excluded from
this case and will not testify or provide evidence for any
purpose.
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 14, 2018
cc:
William E. Christie, Esq.
Natalie J. Laflamme, Esq.
Timothy John McLaughlin, Esq.
William D. Pandolph, Esq.
Christopher James Pyles, Esq.
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