Murphy et al v. United States of America

Filing 121

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker denying 104 MOTION to Exclude Supplemental Report and Testimony of Plaintiffs' Expert Sharon Guerra as untimely filed. (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

DENNIS MURPHY, Guardian Ad Litem
for N.E.D., an incapacitated minor; JACOB DOTSON;
DOMINIQUE BILLY, individually and as next friend
of I.C. and S.D., minors,
Plaintiffs,

No. 1:17-cv-00384 JAP/JHR

vs.
THE UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
On May 28, 2018, Defendant United States of America (“Defendant” or “United States”)
filed a Motion to Exclude Plaintiffs’ Supplemental Expert Report of Nurse Sharon Guerra
(Motion) (Doc. 104). Plaintiffs Dennis Murphy, Guardian Ad Litem for N.E.D., Jacob Dotson,
and Dominique Billy, individually and as next of friend of minors I.C. and S.D. (Plaintiffs) filed
their Third Supplemental Expert Witness Disclosures and Reports on May, 11, 2018, which
included a Supplemental Report authored by expert witness Sharon Guerra, RN. See Third Supp.
Expert Witness Disclosures, Ex. A to Def. Mot. (Doc. 104-1); Supplemental Report, Ex. B to
Def. Mot. (Doc. 104-2). In its Motion, Defendant asks the Court to exclude Ms. Guerra’s
Supplemental Report and related testimony as untimely.1 The Motion is fully briefed.2 The Court
having considered the parties’ briefing, arguments, and relevant law will deny the Motion, but
will afford Defendant an opportunity to depose Ms. Guerra about her Supplemental Report.

1

See THE UNITED STATES’ MOTION TO EXCLUDE PLAINTIFFS’ SUPPLEMENTAL EXPERT REPORT
OF NURSE SHARON GUERRA (Doc. 104) (Motion).
2
  See PLAINTIFFS’ RESPONSE TO THE UNITED STATES’ MOTION TO EXCLUDE PLAINTIFFS’
SUPPLEMENTAL EXPERT REPORT OF NURSE SHARON GUERRA (Doc. 111) (Response); REPLY TO THE
UNITED STATES’ MOTION TO EXCLUDE PLAINTIFFS’ SUPPLEMENTAL EXPERT REPORT OF NURSE
SHARON GUERRA (Doc. 117) (Reply).

I.

BACKGROUND
Plaintiffs filed suit against Defendant seeking damages for alleged medical negligence,

negligent training and supervision, and personal injuries under the Federal Tort Claims Act
(FTCA) and New Mexico state law. See First Amended Complaint (Doc. 51).3 Plaintiffs’ claims
arise out of emergency medical treatment rendered to minor child N.E.D. in February 2016 at the
Gallup Indian Medical Center (GIMC), an Indian Health Services facility in Gallup, New
Mexico. Plaintiffs allege, among other things, that Nurse Kelli J. Coggins,4 Respiratory Therapist
Ella Begay, and other GIMC medical personnel failed to properly protect and monitor N.E.D.’s
airway following a rapid sequence induction and intubation. See Amended Complaint ¶ 36.
Plaintiffs claim this ultimately led to deprivation of oxygen for a period sufficient to cause
N.E.D. to suffer a permanent hypoxic brain injury. See id.
On October 17, 2018, U.S. Magistrate Judge Jerry H. Ritter entered a Scheduling Order
setting the deadline for completion of discovery as April 16, 2018 and the deadline for Plaintiffs
to submit expert witness disclosures and reports by January 16, 2018. (Doc. 30). Plaintiffs timely
filed their Preliminary Expert Witness Disclosures in accordance with the Scheduling Order. See
Certificate of Service (Doc. 52). Plaintiffs’ preliminary disclosure identified Nurse Sharon
Guerra as an expert witness, and provided Defendant with Ms. Guerra’s expert report dated
December 20, 2017, in which she rendered opinions about the conduct of Nurse Kelli Coggins
and respiratory therapist Ella Begay in their treatment of N.E.D. See Plaintiffs’ Preliminary
Expert Witness Disclosures, Ex. C to Def. Mot. (Doc. 104-3); Guerra Expert Report 12/20/17,
Ex. D to Def. Mot. (Doc. 104-4). Plaintiffs included a footnote caveat based on the addition of

3

 See FIRST AMENDED COMPLAINT FOR MEDICAL NEGLIGENCE, PERSONAL INJURIES AND
DAMAGES ARISING UNDER FEDERAL TORT CLAIMS ACT AND NEW MEXICO LAW (Doc. 51). 
4
Ms. Kelli Coggins was formerly known as Kelli Smith at the time of the events at issue in this case. Throughout
the briefing, the parties use several different iterations of her name. For consistency, the Court will refer to her as
Kelli J. Coggins or Nurse Coggins.

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two party defendants, Nurse Coggins and Next Medical Staffing,5 in which they reserved the
right to supplement the proffered expert witness testimony, as necessary, based on “newly
discovered evidence.” See Ex. C to Def. Mot. at n.1 (Doc. 104-3). There is no dispute that the
initial expert witness disclosure complied with the requirements of Federal Rule of Civil
Procedure 26(a)(2)(B).
Plaintiffs deposed Kelli Coggins on February 20, 2018. See Mot. at 3 (Doc. 104). And on
March 13, 2018, the United States was substituted for Nurse Coggins after the United States
determined that it would provide FTCA coverage over Ms. Coggins’ personal services contract.
(Doc. 66). On March 19, 2018, the Court entered an order granting the parties’ stipulated motion
to dismiss claims against Next Medical Staffing, LLC. (Doc. 70), leaving the United States as the
only defendant.
On March 1, 2018, the day Defendant was supposed to disclose its own expert witnesses,
Defendant instead filed a Motion to Extend Pretrial Deadlines (Doc. 60), which included a
request to extend the deadline by which to file its expert witness disclosures. Defendant
requested the additional time in part to “evaluate Ms. [Coggins’] testimony and to evaluate the
need for expert witness testimony to address the issues raised in her deposition.” See Mot. to
Extend Deadlines at ¶ 8 (Doc. 60). U.S. Magistrate Judge Ritter granted Defendant’s request and
entered an order extending the deadline for Defendant to submit expert witness disclosures until
April 6, 2018 with expert reports due by April 10, 2018. See Amended Scheduling Order (Doc.
79). Magistrate Judge Ritter also extended the discovery deadline to May 7, 2018. See id.
On March 15, 2018, counsel for both parties exchanged email communications about

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 The Court allowed Plaintiffs to amend the Complaint to add Kelli Coggins and Next Medical Staffing because
Plaintiffs discovered through early depositions that Nurse Coggins, who participated in treating N.E.D., was a
federal contractor employed by Next Medical Staffing and potentially outside of FTCA coverage. (See Order, Doc.
50).

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setting a date for deposing Nurse Sharon Guerra. See 03/15/18 Email, Ex. E to Def. Mot. (Doc.
104-5). The parties agreed to hold Ms. Guerra’s deposition on April 13, 2018 at 9:00 a.m.
Plaintiffs filed their First Supplemental Expert Disclosure on March 30, 2018. See
Certificate of Service (Doc. 76).

According to the United States, this disclosure included

additional testimony and opinions from Plaintiffs’ Life Care Planner. See Mot. at 3 (Doc. 104).
On April 2, 2018, Plaintiffs filed a Second Supplemental Expert Disclosure, see Certificate of
Service (Doc. 80) which, according to Defendant, included additional opinions from Plaintiffs’
expert economist. See Mot. at 4 (Doc. 104).
In accordance with the April 2, 2018 Amended Scheduling Order the United States filed
its Expert Witness Disclosures on April 6, 2018, see Certificate of Service (Doc. 82) and its
expert reports on April 10, 2018, see Certificate of Service (Doc. 83). On April 12, 2018, counsel
for both parties again exchanged email communications regarding Ms. Guerra’s deposition. See
04/12/18 Email, Ex. F to Def. Mot. (Doc. 104-6). Plaintiffs’ counsel informed counsel for the
United States that Ms. Guerra was no longer available the following day at 9:00 a.m. due to a
scheduling conflict with her new employment, and asked if 3:00 p.m. would work instead. See
id. Counsel for the United States responded that she was not available at that time and cancelled
the deposition. See id. The deposition was not rescheduled prior to the May 7, 2018 discovery
deadline. See Mot. at 4 (Doc. 104). On May 11, 2018, Plaintiffs filed their Third Supplemental
Expert Witness Disclosures, which included Ms. Guerra’s Supplemental Report, the subject of
Defendant’s Motion.
I.

LEGAL STANDARD
“The district court has wide discretion in its regulation of pretrial matters.” Si-Flo, Inc. v.

SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990). Federal Rule of Civil Procedure

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26(a)(2)(B)(i) requires the disclosure of an expert report, which “must contain… a complete
statement of all opinions the witness will express and the basis and reasons for them.” Under
Rule 26(a)(2)(D) the Court may, as it did in this case, set a time by which the parties must submit
their experts’ reports. The Tenth Circuit has noted that “[s]uch disclosure is necessary to allow
the opposing party a reasonable opportunity to prepare for effective cross examination and
perhaps arrange for expert testimony from other witnesses.” Jacobsen v. Deseret Book Co., 287
F.3d 936, 953 (10th Cir. 2002) (internal quotation marks and citation omitted).
Parties are under an ongoing obligation to supplement a Rule 26(a)(2)(B) expert report
“if the party learns that in some material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has not otherwise been made known to
the other parties…” Fed. R. Civ. P. 26(e). Any supplemental information must be disclosed “at
least 30 days before trial” unless the Court orders otherwise. See Fed. R. Civ. P. 26(a)(3) and
26(e). “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.” Fed. R. Civ. P.
37(c)(1). Although a court need not make explicit findings regarding the existence of a
substantial justification or the harmlessness of a Rule 26(a) violation, courts generally consider
four factors: “(1) the prejudice or surprise to the party against whom the testimony is offered; (2)
the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony
would disrupt the trial; and (4) the moving party’s bad faith or willfulness.” Woodworker’s
Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999).

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II.

DISCUSSION
Defendant argues that the Court should exclude Nurse Guerra’s Supplemental Report and

any opinion associated with that report, claiming it is prejudiced by the late disclosure, after the
discovery deadline passed, thereby foreclosing the opportunity to depose Nurse Guerra about
these additional opinions. See Mot. at 4 (Doc. 104). The United States argues that because of
scheduling restraints and a belief that all of Nurse Guerra’s opinions were set forth in Plaintiffs’
prior disclosure and Nurse Guerra’s initial expert report, it did not seek to reschedule Nurse
Guerra’s deposition after it was cancelled. Id. Defendant argues that Plaintiffs’ failure to make
Nurse Guerra available for deposition at the agreed upon date and time, followed by late
disclosure of her Supplemental Report after the close of discovery when the United States could
no longer schedule a deposition, demonstrates that Plaintiffs acted in bad faith. Id. at 8.
Defendant notes that the report was dated March 26, 2018,6 and yet Plaintiffs offered no
justification for the delay, despite filing a supplemental report for another expert on April 2,
2018. See Reply at 2 (Doc. 117). Ultimately, Defendant claims it will be harmed by the inability
to properly explore and rebut Nurse Guerra’s additional opinions. See Reply at 3 (Doc. 117).
Plaintiffs respond that Nurse Guerra’s Supplemental Report merely incorporates opinions
she developed based on Ms. Coggins’ February 20, 2018 deposition – a deposition that occurred
after initial expert disclosures were due. See Resp. at 1-2 (Doc. 111). Plaintiffs contend that
Defendant ultimately chose not to depose Nurse Guerra during discovery, at which deposition
Defendant presumably could have obtained the information disclosed in the supplemental report.
See Resp. at 3-4 (Doc. 111). Plaintiffs claim the supplemental disclosure nevertheless was made

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The parties attribute different dates to Nurse Guerra’s Supplemental Report. Defendant continually refers to the
supplemental report as written on March 26, 2018, while Plaintiffs reference April 30, 2018. The report itself bears a
type-written date of March 26, 2018 in the top left hand corner, but was signed by Nurse Guerra on April 30, 2018.
See Ex. D. to Def. Mot., Supplemental Report (Doc. 104-2).

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in good faith to avoid surprise at trial given the cancelled deposition of Nurse Guerra. See id.
Plaintiffs argue that the United States has failed to demonstrate that it would be prejudiced as a
result of the supplemental report. See Resp. at 1-2 (Doc. 111).
As a preliminary matter, the Court finds that the Supplemental Report is untimely. The
Federal Rules provide for supplementation of an expert witness’ report up until the deadline for
pretrial disclosures. “For an expert whose report must be disclosed…the party’s duty to
supplement extends both to information included in the report and to information given during
the expert’s deposition. Any additions or changes to this information must be disclosed by the
time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2).
Though Plaintiffs complied with the Scheduling Order by disclosing Nurse Guerra’s initial
expert report on January 16, 2018, Plaintiffs’ Third Supplemental Expert Witness Disclosure and
Nurse Guerra’s Supplemental Report were provided to Defendant five days after the amended
discovery deadline established in the Amended Scheduling Order.
However, applying the factors set forth by the Tenth Circuit in Woodworker’s Supply,
Inc., the Court concludes that Defendant’s Motion should be denied because the failure to
comply with Rule 26(a) is justified and harmless. First, there does not appear to be any real
prejudice to Defendant. “The type of prejudice that rises to the level of warranting the exclusion
of a witness’s testimony…is the inability of the opposing party to fully litigate the case and
defend against the new testimony…” Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1255 (10th Cir.
2011). Nothing here suggests that Defendant will be unable to fully litigate the case. In their first
preliminary witness disclosure, Plaintiffs offered that Nurse Guerra would render opinions
regarding the alleged breaches of standard of care by Ella Begay and Nurse Kelli J. Coggins
specifically with regards to controlling N.E.D.’s airway and monitoring N.E.D. as she was

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transported to the CT scanner room and while in the CT scanner room, and with regards to
mechanical ventilation. See Ex. C to Def. Mot., Pl. Preliminary Expert Witness Disclosures
(Doc. 104-3). At the time Nurse Guerra’s initial report was disclosed, Plaintiffs had not yet
deposed Nurse Coggins. Nurse Guerra notes in her Supplemental Report that she is adding
conclusions related to the treatment and care of N.E.D. based on her review of Kelli Coggins’
deposition which took place on February 20, 2018.7 See Ex. B to Def. Mot., Supplemental
Report (Doc. 104-2). Three of the additional conclusions appear to directly relate to airway
control and mechanical ventilation as noticed in the initial disclosures, see Doc. 104-2, ¶¶ 2, 4, 5.
The Court observes that the remaining two conclusions in the Supplemental Report relate
to neurological assessment and pain assessment, respectively, see id. ¶¶ 1, 3, matters that do not
directly fall within the description of Nurse Guerra’s opinions in the preliminary disclosure. The
Court also recognizes Defendant’s argument that Plaintiffs should have been able to provide the
Supplemental Report prior to the May 7, 2018 discovery deadline. This would be true even if
Plaintiffs were unable to obtain a final copy from Nurse Guerra until the April 30, 2018 signature
date on the document. Nevertheless, the disclosure was made only four days after the discovery
deadline and approximately four months prior to trial as it is currently scheduled. This provides
more than sufficient notice of Nurse Guerra’s prospective trial testimony and allows a reasonable
opportunity for the United States to prepare for effective cross examination.
The second factor concerns whether the United States could somehow cure any potential
prejudice. The Court is aware of the demanding schedules and time constraints encountered by
most counsel who appear before the Court. In that context, the Court appreciates the challenges
posed by a last minute request to change the time of Nurse Guerra’s deposition with

7

In her supplemental report, Ms. Guerra indicates the deposition took place on February 21, 2018. The United
States’ Motion indicates Plaintiffs deposed Kelli Coggins on February 20, 2018.

8

approximately three weeks remaining before the discovery deadline. However, Defendant could
have, on its own, or by seeking Plaintiffs’ concurrence, filed a motion requesting additional
discovery time to complete Nurse Guerra’s deposition. Alternatively, Defendant could have
sought additional time from the Court to file a rebuttal expert report. In the interest of fairness,
however, the Court will grant Defendant the opportunity to depose Nurse Guerra within the next
30 days, if it so chooses. The deposition will be limited to issues and/or opinions raised for the
first time in the supplemental expert report.
Third, the Court finds that there will be no disruption to trial by allowing Nurse Guerra’s
testimony given the disclosure occurred nearly four months prior to trial, and nearly two months
still remain until trial.
Finally, as to the fourth Woodworker’s Supply, Inc. factor, Plaintiffs argue that the very
act of disclosing the Supplemental Report was in keeping with their obligation under the Federal
Rules and desire to avoid surprise at trial. See Resp. at 2 (Doc. 111). While the Court is troubled
by Plaintiffs’ lack of explanation regarding the timing of when they first anticipated the need for
a Supplemental Report, when Nurse Guerra first provided them with the Supplemental Report,
and when the report was ultimately disclosed to Defendant, the Court does not believe that
Plaintiffs were acting in bad faith or to willfully harm or prejudice Defendant.
All of the Tenth Circuit Court factors weigh in favor of finding that the untimely
supplemental disclosure is substantially justified and harmless under rule 37(c). Accordingly, the
Court will deny Defendant’s Motion.
IT IS THEREFORE ORDERED that:
1.

The United States’ Motion to Exclude Plaintiffs’ Supplemental Expert Report of
Nurse Sharon Guerra (Doc. 104) is DENIED; and

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2. The Court will allow Defendant the opportunity to depose Nurse Sharon Guerra
within 30 days of this Order regarding issues and opinions raised for the first time in
Ms. Guerra’s Supplemental Report.

__________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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