Thomson v. National Railroad Passenger Corporation
Filing
139
MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera denying 123 Amtrak's Motion to Strike Untimely Supplemental Expert Report. (baw)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANDREW J. THOMSON,
Plaintiff,
v.
No. 1:17-cv-00565-JCH-JFR
NATIONAL RAILROAD
PASSENGER CORPORATION,
doing business as AMTRAK,
Defendant.
MEMORANDUM OPINION AND ORDER
Defendant National Railroad Passenger Corporation d/b/a Amtrak moves to strike
a late filed report by Plaintiff’s expert, Dr. Michael Roback. See ECF No. 123.
I.
Background
In this personal injury case, Mr. Thomson sues Amtrak for injuries he sustained in
2014 when the train he was riding in violently jolted. At the time, Mr. Thomson was
using the restroom in his private sleeper cabin. Because the toilet was poorly attached, the
jolt ripped it apart from the floor, projecting Mr. Thomson into the metal cabin door. He
sustained serious injuries to his head, neck, back, and hands.
In August 2017, the Court created a case schedule, which – after some agreed
upon extensions – included a February 28, 2018 deadline for Mr. Weathers to identify his
expert witnesses. Mr. Thomson met this deadline, and identified Dr. Roback, a licensed
physician and orthopedic surgeon, to provide opinions about orthopedic injuries to Mr.
Thomson’s head, neck, shoulder, and wrist. Dr. Roback conducted an orthopedic
evaluation of Mr. Thomson on January 4, 2018. Based on that evaluation, Dr. Roback
concluded in his expert report that Mr. Thomson is “100% permanently disabled” and
that the Amtrak related injury prevented him from doing activities required for gainful
employment, such as standing, walking or sitting for a normal duration. ECF No. 97-2 at
33. He reported that before the train incident, Mr. Thomson was fully and independently
able to clean his home, cook, do laundry, shop for groceries, and do home repairs and
yard work. Id. at 11. Since the accident, though, Mr. Thomson cannot perform any of
those activities without help. See id. Although Dr. Roback did identify Mr. Thomson’s
injuries and life limitations in light of the injuries, nowhere in Dr. Roback’s report did he
quantify Mr. Thomson’s medical damages. A few months later, in June 2018, Amtrak
deposed Dr. Roback in California about the content of his expert report.
Meanwhile, throughout the summer of 2018, the discovery deadline was pushed
back numerous times, with a final deadline of November 8, 2018. The Court imposed a
mid-November 2018 deadline for filing discovery-related and dispositive motions.
Amtrak met those deadlines and moved to exclude two of Mr. Thomson’s expert
witnesses under Daubert1 (one of which was Dr. Roback) and moved for summary
judgment.
Jumping forward to August 7, 2019, the Court vacated the October 21, 2019 jury
trial setting. Fourteen days later, on August 21, 2019 – roughly a year and a half after the
expert witness disclosure deadline – Mr. Thomson served Amtrak with a supplemental
orthopedic report by Dr. Roback. In that report, Dr. Roback, for the first time, came up
1
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
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with hard numbers of Mr. Thomson’s future medical damages. Mr. Thomson says that he
disclosed these medical damages as part of his ongoing duty under the Federal Rules of
Civil Procedure to “supplement or correct its disclosure … if the party learns that in some
material respect the disclosure … is incomplete or incorrect, and if the additional or
corrective information has not otherwise been known to the other parties during the
discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). On September 10, 2019,
Amtrak responded by moving to strike the supplement. Amtrak argues that Dr. Roback’s
medical damages are entirely new opinions on Amtrak’s damages exposure. Amtrak
concedes that Dr. Roback did give a “prior opinion that [Mr. Thomson] will incure [sic]
future medical expenses,” ECF No. 123, but argues that his new calculations “bolster an
existing opinion or introduce a new opinion.” ECF No. 132. If his calculations are
admitted into evidence, Amtrak says it will have to get a rebuttal expert, do another
deposition, and amend its already filed Daubert motion.
II.
Standard of Review
Federal Rule of Civil Procedure 26(a)(2)(B) provides that an expert witness’s
report should contain “a complete statement of all opinions” the expert will express. Fed.
R. Civ. P. 26(a)(2)(B). “The purpose of rule 26(a) expert disclosures is ‘not only to
identify the expert witness, but also ‘to set forth the substance of the direct
examination.’” Guidance Endodontics, LLC v. Dentsply Int’l, Inc., No. CIV 08-1101
JB/RLP, 2009 WL 3672502, at *3–4 (D.N.M. Sept. 29, 2009) (quoting Jacobsen v.
Deseret Book Co., 287 F.3d 936, 953 (10th Cir.2002)). “Such disclosure is necessary to
allow the opposing party a reasonable opportunity to prepare for effective cross
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examination and perhaps arrange for expert testimony from other witnesses.” Jacobsen v.
Deseret Book Co., 287 F.3d at 953 (citation and internal quotation marks omitted).
“Pursuant to rule 26(e), a party is under a duty to supplement a rule 26(a)(2)(B) expert
report ‘if the party learns that in some material respect the information disclosed is
incomplete and if the additional or corrective information has not otherwise been made
known to the other parties....’” Guidance Endodontics, LLC, 2009 WL 3672502, at *3
(quoting Fed. R. Civ. P. 26(e)). “This duty extends to information included in expert
reports and given during expert depositions.” In re Complaint of C.F. Bean L.L.C., 841
F.3d 365, 371 (5th Cir. 2016) (citing Fed. R. Civ. P. 26(e)(2)).
However, “a party may not use a supplemental report to disclose information that
should have been disclosed in the initial expert report, thereby avoiding the requirement
for a timely and completely expert witness report.” 6 Moore’s Federal Practice §
26.131[2] (3d Ed.). Supplementation “means correcting inaccuracies, or filling the
interstices of an incomplete report based on information that was not available at the time
of the initial disclosure.” Reinsdorf v. Skechers U.S.A., 922 F. Supp. 2d 866, 880 (C.D.
Cal. 2013) (quotation omitted). Hence, “[a] party may not use the pretext of
supplementation to reopen discovery, close gaps in their evidence, and essentially
generate new expert reports.” Hall v. ConocoPhillips, 248 F. Supp. 3d 1177, 1181 (W.D.
Okla. 2017). “To rule otherwise would create a system where preliminary reports could
be followed by supplementary reports and there would be no finality to expert reports, as
each side, in order to buttress its case or position, could ‘supplement’ existing reports and
modify opinions previously given.” Beller ex rel. Beller v. United States, 221 F.R.D. 696,
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701 (D.N.M. 2003). Moreover, in the context of experts specifically, supplementation is
not allowed “when the party’s motive is to wholly rework [a] damages claim or change
the substance of their contentions.” Capitol Justice LLC v. Wachovia Bank, N.A., 706 F.
Supp. 2d 34, 39 (D.D.C. 2009) (citations and quotation marks omitted).
III.
Discussion
Applying these standards, a comparison of Dr. Roback’s second report shows that
it is not supplemental to his first one. First of all, Mr. Thomson points to no “incomplete”
or “inaccurate” information in Dr. Roback’s first report that his second one is meant to
supplement. Of course, both reports share the same basic subject matter - Mr. Thomson’s
injuries. But their similarities end there. The second report’s introduces a damages
calculation that, on the low-end, put Amtrak’s damages exposure in the quarter-of-amillion-dollars range. Second, Dr. Roback presumably based his damages conclusions on
information he knew about Mr. Thomson at the time he examined him in January 2018.
This is therefore not a case of correcting miscalculations, but instead introducing them for
the first time. Cf. Wachovia Bank, N.A., 706 F. Supp. 2d at 39 (expert’s second report was
supplemental where it did not “wholly rework” a damages claim, but only produced a
more accurate report.) Thus, Dr. Roback’s second report is not a supplement.
However, Mr. Thomson’s failure to comply with Rule 26(e)’s strictures does not
automatically mean that Dr. Roback’s second report must be stricken, because courts
focus on the prejudicial effect of the late disclosure. Under Fed. R. Civ. P. 37, “[i]f 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
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motion, at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). “[T]he determination of whether a Rule 26(a) [or (e)]
violation is justified or harmless is entrusted to the broad discretion of the district court.”
HCG Platinum, LLC v. Preferred Prod. Placement Corp., 873 F.3d 1191, 1200 (10th Cir.
2017) (citation omitted). The Rule 37(c)(1) inquiry “depends upon several factors that a
district court should consider in exercising its discretion.” Id. (citation omitted) (emphasis
removed). These factors include: “(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 Life Ins. Co., 170 F.3d 985,
993 (10th Cir. 1999).
Because Mr. Thomson has not complied with the rules, he has disrupted this
case’s efficient management, especially since Mr. Thomson and his expert had numerous
opportunities to disclose the damages calculation during the extended periods for
discovery. Moreover, Amtrak is certainly right that the late disclosure deprived Amtrak
of its ability to prepare for cross-examination and rebuttal of Dr. Roback and to decide
whether to designate its own expert. However, Amtrak’s request for the extreme sanction
of excluding evidence is unwarranted. The Tenth Circuit has instructed district courts to
consider an “array of other sanctions,” HCG Platinum, LLC, 873 F.3d at 1203, in their
arsenals before excluding evidence. An application of the Woodworker’s Supply factors
shows that all four factors weigh in favor of admitting the late report. First, that Mr.
Thomson would seek medical damages could not have come as a surprise to Amtrak. His
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complaint put Amtrak on notice that he sought compensation and past and future medical
expenses. Second, the prejudice to Amtrak from the late disclosure can be cured. Amtrak
can re-depose Dr. Roback, submit its own expert report if necessary, and renew its
Daubert motion. Third, although re-opening expert discovery will have the effect of
disrupting this case, no trial date is set, so the harm to Mr. Thomson of excluding his
evidence outweighs any disruption to Amtrak. Fourth, the Court detects no bad-faith on
Mr. Thomson’s or his expert’s part.
IV.
Conclusion
All in all, the Woodworker’s Supply factors counsel in favor of admitting Mr.
Thomson’s late disclosure. However, to allay this ruling, Mr. Thomson will pay Dr.
Roback’s fee for re-deposing him. Amtrak will also be permitted to submit its own expert
report and may renew its Daubert motion concerning Dr. Roback. The parties will meet
with United States Magistrate Judge John F. Robbenhaar to reset expert discovery
deadlines consistent with this Memorandum Opinion and Order.
IT IS THEREFORE ORDERED that Amtrak’s Motion to Strike Untimely
Supplemental Expert Report [ECF No. 123] is DENIED.
IT IS SO ORDERED.
_________________________________
Senior United States District Court Judge
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