Brisbin v. United States of America
Filing
70
MEMORANDUM OPINION AND ORDER Setting Hearing on 58 MOTION for Summary Judgment and/or Dismissal. Motion Hearing set for 9/6/2019 at 09:30 AM in Albuquerque - 480 Chama Courtroom before Magistrate Judge Steven C. Yarbrough. (kfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
KYLE BRISBIN, Individually, and as
Personal Representative of the Estate of
ROBERT F. BRISBIN, Deceased,
Plaintiff,
v.
Civ. No. 18-128 SCY/LF
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER1
Plaintiff Kyle Brisbin brings this medical malpractice action in connection with the death
of her late husband, Robert Brisbin. Mr. Brisbin presented to the VA Medical Center in
Albuquerque reporting stroke signs and symptoms. Mr. Brisbin was transferred to UNM Hospital
a few hours later, unconscious and on ventilation. Approximately 18 days after this, he was
transferred to hospice, where he passed away. Plaintiff brings this suit against the United States
of America, arguing that the VA nurses and staff should have ensured a timelier transfer of Mr.
Brisbin to UNM Hospital.
After Plaintiff disclosed an expert witness who opined only on the negligence of contract
doctors rather than on the negligence of any United States employee, the United States filed the
present motion for summary judgment (Doc. 58), arguing that Plaintiff must have expert
testimony to support her claims, and that summary judgment is appropriate where her expert did
not offer any opinions that the VA nurses and staff were negligent. In response to the motion—
1
Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct all
proceedings and to enter an order of judgment. Docs. 8, 14 & 15.
1
well after the deadline to produce expert reports and after the close of discovery—Plaintiff
disclosed a “supplemental” affidavit from her expert, this time opining that the VA nurses and
staff were partially responsible for the delay in transfer and their conduct fell below the standard
of care. In reply, the United States moved to strike the untimely supplemental affidavit and
argued that the opinions therein are so conclusory that the supplemental affidavit is not
competent evidence to defeat summary judgment. On surreply, Plaintiff did not contest the
untimeliness of his supplemental affidavit but proposed a sanction less severe than striking the
affidavit. For the reasons explained below, the Court will defer ruling on this motion until after a
hearing.
BACKGROUND
A.
Procedural History
Plaintiff filed her Complaint for Medical Negligence and Wrongful Death on February 7,
2018. Doc. 1. It contained five counts: (1) Medical Negligence of Defendant New Mexico VA
Health Care System; (2) Professional Negligence of Defendant New Mexico VA Health Care
System; (3) Wrongful Death; (4) Loss of Consortium; and (5) Negligent Hiring, Supervising
And/Or Retention of Defendant New Mexico VA Health Care System. Id. Defendant United
States filed its Answer on April 16, 2019. Doc. 12. On May 23, 2018, I entered an Order
regarding a related case Plaintiff also filed in federal court, captioned Brisbin v. AB Staffing
Solutions, LLC, Civ. No. 17-1183 WJ/SCY. See Doc. 18. I noted that, “[g]enerally speaking,
both the present case and the companion case arise from allegations of negligent medical
treatment received by Robert Brisbin at the Raymond G. Murphy VA Medical Center on the
night of December 28, 2014.” Id. at 1. The defendants in No. 17-1183 WJ/SCY are Dr. Parmjit
M. Singh and his employer, AB Staffing Solutions, whereas the defendant in the instant case is
2
the United States, who runs the VA Medical Center and contracted with Dr. Singh to provide
medical care at that facility.
The defendants in No. 17-1183 WJ/SCY filed a motion to consolidate discovery, noting
that Plaintiff did not oppose consolidation but that the United States, a party in No. 18-128
SCY/LF, did oppose consolidation. No. 17-1183 WJ/SCY, at doc. 28 (filed Apr. 18, 2018). The
United States, however, later withdrew its opposition. Doc. 22.2 I entered an order consolidating
the cases for discovery purposes. Docs. 25 & 26. I then entered an Amended Scheduling Order
applicable to both cases, setting Plaintiff’s expert disclosure deadline for September 3, 2018; a
discovery termination date of November 15, 2018; and a pretrial motions deadline of December
5, 2018. Doc. 27. On September 6, pursuant to a request by all parties in both cases, I entered an
Order Granting Joint Motion To Extend Pretrial Deadlines. Doc. 34. I set the new deadline for
Plaintiff’s expert disclosure for October 3, 2018; the new discovery termination date for
December 15, 2018; and the new pretrial motions deadline for January 17, 2018. Id. On October
3, 2018, I granted another joint motion to extend deadlines, setting Plaintiff’s expert disclosure
deadline for December 3, 2018; the discovery deadline for February 15, 2019; and the pretrial
motions deadline for March 18, 2019. Doc. 38. Plaintiff filed a Certificate of Service of his
Expert Witness Disclosure on December 3, 2018, disclosing Robert W. Derlet, MD and Kevin
Yoo, MD, F.A.N.S., F.A.C.S. as expert witnesses. Doc. 43. Plaintiff filed an identical disclosure
in No. 17-1183 WJ/SCY on the same date. See No. 17-1183 WJ/SCY, at doc. 52 (filed Dec. 3,
2018).
2
Unless otherwise specified with a different case number, docket citations are to ECF documents
filed in No. 18-128 SCY/LF.
3
After the cases were briefly stayed during the federal government shutdown in January
2019, Judge Fashing conducted a status conference on February 13, 2019. The parties in No. 171183 WJ/SCY informed her that they reached a negotiated settlement. Doc. 57. The parties in
that case submitted closing documents and Judge Johnson granted the stipulated motion to
dismiss. No. 17-1183 WJ/SCY, at doc. 61 (filed Mar. 7, 2019).
Meanwhile, in the present case, Judge Fashing extended the discovery termination date to
April 22 and the pretrial motions deadline to May 23. Doc. 51. The parties also jointly moved to
vacate a settlement conference before Judge Fashing, preferring to instead obtain a decision on
dispositive motions the United States planned to file. Docs. 53 & 55. On July 3, 2018, Plaintiff
filed a notice of withdrawal of Counts II and IV of her Complaint, Doc. 29, and on May 15,
2019, filed another notice withdrawing Count V of her Complaint, Doc. 57.
On May 22, the United States filed the instant Motion for Summary Judgment And/Or To
Dismiss. Doc. 58. In its motion, the United States argues that it is entitled to summary judgment
in this medical malpractice case because Plaintiff’s claims require expert testimony, and Plaintiff
did not disclose any expert opinions on the subject of the United States’ negligence. Plaintiff did
disclose expert witnesses under Fed. R. Civ. P. 26(a)(2) in accordance with the Court’s
Scheduling Order. Doc. 43. But, according to the United States, the expert reports only disclosed
opinions regarding the negligence of a contract doctor, Dr. Singh, for whom the United States is
not liable. Doc. 58 at 9. Therefore, the United States argues, Plaintiff has no expert testimony to
establish any negligence by the United States. Id.
In her response in opposition to the Motion, filed June 12, 2019, Plaintiff attaches an
affidavit from Dr. Derlet offering opinions regarding the United States’ alleged negligence and
argues that these opinions meet her burden to provide expert testimony in support of her claims.
4
Docs. 63 & 63-1. The United States filed its reply on June 26, 2019. Doc. 64. In reply, the United
States observes that these opinions were not contained in the original disclosure, and argues the
affidavit attached to Plaintiff’s response is therefore an untimely expert disclosure under this
Court’s Scheduling Order, Doc. 38, and Federal Rule of Civil Procedure 26(a)(2)(D). Doc. 64 at
4-7. The United States moves to strike the supplemental affidavit of Plaintiff’s expert. Id. The
United States also argues that Dr. Derlet’s supplemental affidavit does not meet Plaintiff’s
burden to establish medical malpractice because it offers conclusions with no explanations. Doc.
64 at 7-10.
Because Plaintiff attached Dr. Derlet’s supplemental affidavit to her response brief, the
arguments the United States raised in reply concerning that affidavit were new (not presented in
the United States’ original motion). On that basis, the Court invited Plaintiff to file a surreply to
address the new arguments raised in the United States’ reply brief. Doc. 68. Plaintiff filed her
surreply on July 17, 2019. Doc. 69. In her surreply, Plaintiff argues that the United States should
have been on notice of Dr. Derlet’s opinion that the United States was negligent because Dr.
Derlet’s original affidavit “made it clear that the delay in transport was negligent” and “did not
say that all the fault lay with Dr. Singh.” Doc. 69 at 2. Plaintiff also argues that there is no
prejudice to the United States from the supplemental affidavit, because there is no trial setting.
Id. at 3. Plaintiff offers to have Dr. Derlet deposed at Plaintiff’s expense. Id. Plaintiff does not
respond to the United States’ argument that Dr. Derlet’s supplemental affidavit does not meet
Plaintiff’s burden to show medical malpractice because it offers conclusions with no
explanations.
B.
Defendant’s Statement of Material Facts
Robert Brisbin presented to the Veterans Administration (“VA”) Hospital’s Emergency
Department on December 28, 2014 after a reported fall and reported stroke signs and symptoms.
5
Doc. 58 ¶ 1; Doc. 63 at 2. Dr. Parmjit M. Singh was an emergency medical physician employed
by AB Staffing Solutions, LLC, working as an independent contractor at the VA on December
28, 2014. Doc. 58 ¶ 2; Doc. 63 at 2. Mr. Brisbin was evaluated by Dr. Singh and sent for a CT
scan without intravenous contrast. Doc. 58 ¶ 3; Doc. 63 at 2. The CT scan revealed Mr. Brisbin
was suffering a left thalamic hemorrhage approximately 3 x 3.6 cm in size, with associated
intraventricular hemorrhage predominantly on left side; 2.3mm left to right midline shift. Doc.
58 ¶ 4; Doc. 63 at 2. Dr. Singh consulted with the VA’s attending neurosurgeon, Dr. Suguna
Pappu. Dr. Pappu recommended Mr. Brisbin be transferred to UNM Hospital (“UNMH”) for
higher level care. Doc. 58 ¶ 5; Doc. 63 at 2. Before Mr. Brisbin was transported to UNMH, he
became unstable, unresponsive to verbal cues and lost consciousness, requiring he be intubated.
Doc. 58 ¶ 6; Doc. 63 at 2. Mr. Brisbin was transported to UNM Hospital unconscious and on
ventilation, where he stayed for approximately 18 days, before being transferred to hospice,
where Mr. Brisbin died on January 25, 2015. Doc. 58 ¶ 7; Doc. 63 at 2.
In accordance with the Court’s scheduling order, Plaintiff disclosed his expert witness
under Rule 26(a) on December 3, 2018. See Doc. 43; see also Doc. 38 (order extending deadline
for expert witness disclosure to December 3, 2018). Plaintiff disclosed an emergency medicine
expert, Dr. Robert W. Derlet, who opined in his report that “Dr. Singh failed to take appropriate
action to stabilize Mr. Brisbin prior to transfer.” Doc. 58 ¶ 8; Doc. 63 at 2; Doc. 58-4 at 2.
According to Dr. Derlet, in the absence of the immediate availability of prothrombin complex
concentrate, known as the brand name Kcentra, “Dr. Singh should have administered Fresh
Frozen Plasma.” Doc. 58 ¶ 9; Doc. 63 at 2; Doc. 58-4 at 2. “Either agent would rapidly reverse
the anticoagulation, and stop the bleeding into [Mr. Brisbin’s] brain.” Doc. 58-4 at 2. Dr. Derlet
opines that Dr. Singh’s failure to do so falls below the standard of care. Id. at 2-3.
6
“The delay in transfer is also below the standard of care.” Id. at 3. “Dr. Singh had the
primary responsibility to ensure timely transfer of Mr. Brisbin to UNMH. It is below the
standard of care for an ED physician to hand off a patient to an administrative employee to
ensure timely transfer.” Doc. 58 ¶ 10; Doc. 58-4 at 3. Dr. Derlet concludes that “Dr. Singh had
full responsibility for care of the patient until he departed from the ED.” Doc. 58 ¶ 11; Doc. 58-4
at 3. Plaintiff concedes that this is an accurate description of Dr. Derlet’s report but states it does
not constitute the entire opinion of Dr. Derlet on the issue of timely transfer. Doc. 63 at 2.
Plaintiff’s neurosurgery medicine expert Dr. Kevin Yoo offers that “Dr. Singh should
have given Brisbin fresh frozen plasma (FFP) or plasma complex concentrate (PCC or Kcentra)
to rapidly reverse the effects of Coumadin in Brisbin.” Doc. 58 ¶ 12; Doc. 63 at 2. Dr. Kevin
Yoo also opines that “[m]edicolegally, Dr. Singh was responsible for and was the decisionmaker of Mr. Brisbin while [Mr.] Brisbin was in the VA Emergency Room.” Doc. 58 ¶ 13; Doc.
63 at 2.
C.
Plaintiff’s Statement of Additional Material Facts
Mr. Brisbin arrived at the VA Emergency Department on the night in question at 20:41.
Doc. 63 ¶ 1; Doc. 64 at 2. Dr. Singh contacted the neurosurgeon attending, Dr. Pappu, at 21:40
and decided Mr. Brisbin would be transferred to UNMH. Doc. 63 ¶ 2; Doc. 64 at 2. Mrs. Brisbin
signed a Patient Consent to Transfer at 21:48. Doc. 63 ¶ 3; Doc. 64 at 2. At 21:50 a Consent to
Transfer was signed by Dr. Singh. Doc. 63 ¶ 4; Doc. 64 at 2. A Request for Transfer/Travel was
also executed by Dr. Singh at 21:50, which indicated an intracranial bleed and an ETA of the
ambulance of 23:10-23:20. Doc. 63 ¶ 5; Doc. 64 at 2. The ambulance company received the call
for service at 22:45. Doc. 63 ¶ 6; Doc. 64 at 3.
Plaintiff asserts that transfer by ambulance occurred at 00:30 on December 29, over 2
hours and 30 minutes after consent was obtained. Doc. 63 ¶ 7. In support, Plaintiff cites her
7
Exhibit A, an affidavit from Dr. Derlet. Id. Dr. Derlet states that his knowledge comes from
reviewing the Medical Records of Robert Brisbin regarding his visit to the Emergency
Department at the VA Hospital on December 28, 2014. Doc. 63-1 ¶ 1. The United States disputes
this fact, pointing to the medical records attached to Plaintiff’s motion which record that the
ambulance was dispatched at 22:45, arrived at the scene at 23:58, and was with the patient at
00:02. Doc. 64 at 3; Doc. 63-5 at 1. As set forth below, the Court intends to set a hearing in this
matter. At this hearing, Plaintiff should provide the Court with the medical records on which Dr.
Derlet relies to support this factual assertion.
By the time of Mr. Brisbin’s transfer, his condition had deteriorated such that he required
intubation because of unresponsiveness.3 Doc. 63 ¶ 8. Again, Plaintiff cites Dr. Derlet’s affidavit,
even though Dr. Derlet does not have personal knowledge of Mr. Brisbin’s conditions and
merely reviewed medical records. The United States does not dispute that Mr. Brisbin required
intubation, Doc. 64 at 3, but indicates that the medical record attached to Plaintiff’s motion
shows that when the ambulance arrived at the VA, he was found “lying in bed @ ER in no
apparent pain/distress.” Doc. 63-5. Other initial assessments indicated his vitals were unchanged
up until the transfer. Id. Again, Plaintiff should provide the Court at the upcoming hearing with
the medical records on which Dr. Derlet relies to support this factual allegation.
The rest of Plaintiff’s facts are drawn from the Supplemental Affidavit of Dr. Derlet,
which the United States contends Plaintiff first disclosed as an attachment to the response
Plaintiff filed on June 12, 2019. The United States argues that this supplement is an untimely
3
Plaintiff’s Statement of Undisputed Facts states that Mr. Brisbin “required intubation because
of responsiveness.” Doc. 63 ¶ 8. This appears to be a typographical error, as Dr. Derlet opines
that Mr. Brisbin’s “condition had deteriorated such that he required intubation because of
unresponsiveness.” Doc. 63-1 ¶ 13 (emphasis added).
8
expert report under the Court’s Scheduling order and should be stricken. Doc. 64 at 3. This
objection constitutes a dispute, by means of legal argument, to the facts contained in Plaintiff’s
supplemental expert report. The Court will address this legal argument later in this Order.
Dr. Derlet’s Supplemental Affidavit sets forth his opinion that the treatment of Mr.
Brisbin fell below the standard of care, both in the medical management and the delay in transfer
from the VA Hospital. Doc. 63 ¶ 9. Mr. Brisbin should have been promptly transferred to
UNMH for neurosurgical intervention. The delay in transfer is below the standard of care. Id. ¶
10. Dr. Singh had primary responsibility to ensure timely transfer of Mr. Brisbin, but it was also
the responsibility of the VA, its nurses and staff to ensure the timely transfer of Mr. Brisbin,
which did not occur in this case. Id. ¶ 11. The internal documents from the VA demonstrate the
ambulance service indicated the transfer would be at least one hour or more—this should have
been told to Dr. Singh immediately and alternative transportation arranged. Id. ¶ 12. The VA’s
conduct, through its nurses and staff, fell below the standard of care for a hospital and was
negligent. Id. ¶ 13. The failure to stabilize the patient and the delay in transport constituted
significant factors in the progression of Mr. Brisbin’s intracranial hemorrhage. Id. ¶ 14.
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). There is no genuine dispute as to any material fact unless the evidence is such that
a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In other words, a dispute is genuine “if there is sufficient
evidence on each side so that a rational trier of fact could resolve the issue either way,” and it is
material “if under the substantive law it is essential to the proper disposition of the claim.”
9
Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). In
reviewing a motion for summary judgment, the Court views the evidence and all reasonable
inferences therefrom in the light most favorable to the non-moving party. S.E.C. v. Thompson,
732 F.3d 1151, 1156-57 (10th Cir. 2013) (internal quotation marks omitted). Initially, the party
seeking summary judgment has the burden of showing that there is no genuine dispute as to any
material fact. See Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993).
Once the moving party meets its burden, the non-moving party must show that genuine issues
remain for trial. Id.
DISCUSSION
I.
Plaintiff Violated Rule 26(a).
A.
Plaintiff’s December 2018 Expert Disclosure Was Insufficient.
“Rule 26(a)(2) requires expert reports ‘contain a complete statement of all opinions to be
expressed.’” Jacobsen v. Deseret Book Co., 287 F.3d 936, 951-52 (10th Cir. 2002) (quoting Fed.
R. Civ. P. 26(a)(2)(B)). If a party fails to disclose information required by Rule 26(a), it may not
use any undisclosed information at trial, unless the failure is substantially justified or harmless.
Id. (quoting Fed. R. Civ. P. 37(c)(1)). “Paragraph (2)(B) requires that persons retained or
specially employed to provide expert testimony . . . must prepare a detailed and complete written
report, stating the testimony the witness is expected to present during direct examination,
together with the reasons therefor.” Fed. R. Civ. P. 26, Advisory Committee Notes, 1993
Amendment, Subdivision (a).4 In other words, opinions that an expert will express at trial in the
course of a direct examination must be included in his or her expert report.
4
“Courts give weight to the advisory committee notes unless they contradict the plain language
of the rule.” United States v. Jones, 818 F.3d 1091, 1100 n.6 (10th Cir. 2016).
10
Dr. Derlet’s original report did not disclose a single opinion about the United States’
negligence. Nonetheless, Plaintiff argues that the United States should have been on notice of Dr.
Derlet’s opinion that the United States was negligent because Dr. Derlet’s original affidavit
“made it clear that the delay in transport was negligent” and “did not say that all the fault lay
with Dr. Singh.” Doc. 69 at 2. Granted, Dr. Derlet opined that the “primary” responsibility to
ensure a timely transfer lay with Dr. Singh and so the United States could infer Plaintiff’s
position that some residual responsibility belonged to others, most likely the nurses and
administrative staff at the hospital. But the standard is not whether the United States could have
guessed what Dr. Derlet might opine. The standard is whether Dr. Derlet’s December 2018
expert report “contain[ed] a complete statement of all opinions to be expressed.” Fed. R. Civ. P.
26(a)(2)(B)(i).
Dr. Derlet’s original affidavit failed to meet this standard because it did not disclose his
opinion that “it was also the responsibility of the VA, its nurses and staff to ensure the timely
transfer of Mr. Brisbin which did not occur in this case.” Doc. 63-1 ¶ 17. Nor did it disclose his
opinion that the VA knew the transfer would take an hour or more and that “this should have
been told to Dr. Singh immediately and alternative transportation arranged.” Id. ¶ 18. Finally,
both Dr. Derlet’s original affidavit and supplemental affidavit contain a sentence opining that the
“failure to stabilize the patient and the delay in transport constituted significant factors in the
progression of Mr. Brisbin’s intracranial hemorrhage.” Doc. 58-4 at 3; Doc. 63-1 ¶ 20. But in the
original affidavit this sentence concludes a paragraph discussing Dr. Singh’s negligence (Doc.
58-4 at 3) whereas the supplemental affidavit places this same sentence directly after a paragraph
discussing the VA’s negligence. Doc. 63-1 ¶¶ 19-20.
11
Plaintiff’s supplemental report thus clearly contains material information not included in
Plaintiff’s original expert report. This originally omitted information is based on facts Plaintiff
knew at the time he submitted his original expert report. Therefore, Plaintiff’s disclosure of this
material information is untimely and in violation of Rule 26(a) and the Court’s scheduling order.
B.
The Violation Is Not Harmless Or Substantially Justified.
Plaintiff’s violation of Rule 26(a) does not end the analysis. A Rule 26(a) violation may
be excused if it is justified or harmless. Fed. R. Civ. P. 37(c)(1); see Jacobsen v. Deseret Book
Co., 287 F.3d 936, 953 (10th Cir. 2002) (“A trial court has broad discretion to decide if a Rule
26(a) violation is justified or is harmless.”). In making this determination, the Court should
consider: (1) whether the other party will be prejudiced, (2) the ability to cure any prejudice, (3)
whether allowing the evidence would disrupt the trial, and (4) the violator’s bad faith or
willfulness. Jacobsen, 287 F.3d at 952-53; Woodworker’s Supply, Inc. v. Principal Mut. Life Ins.
Co., 170 F.3d 985, 993 (10th Cir. 1999).
“The determination of whether a Rule 26(a) violation is justified or harmless is entrusted
to the broad discretion of the district court.” Id. Nonetheless, the Tenth Circuit has issued some
guidance concerning the application of the relevant factors. In Neiberger v. Fed Ex Ground
Package System, Inc., the Tenth Circuit found no abuse of discretion where the district court
refused to award sanctions for a Rule 26(a) violation. 566 F.3d 1184, 1191-92 (10th Cir. 2009).
This was partly because the opposing party in that case was not surprised by the new opinions
offered by the expert. Id. at 1192. Instead of asserting that the expert offered an untimely
opinion, the “complaint [was] that the report did not disclose the bases and data for [the expert’s]
conclusions.” Id. The Tenth Circuit held that the failure to provide the peer-reviewed literature in
support of the expert’s opinion did not cause prejudice because the expert’s opinion was
“noncontroversial.” Id.
12
In contrast, the Tenth Circuit in Jacobsen v. Deseret Book Co., concluded that the district
court abused its discretion in refusing to strike expert reports or allowing the opposing party
more time to produce rebuttal expert reports. 287 F.3d 936, 952-54 (10th Cir. 2002). There, the
district court had found that, although the original expert reports were incomplete, the opposing
party should have known the contents of the undisclosed expert opinions and should not have
been surprised by the disclosure. Id. at 952. The Tenth Circuit disagreed, pointing out that the
expert’s expected trial testimony contains “substantially more information than was presented in
the expert reports” and concluding that prejudice occurred because the plaintiff had not been
provided the “substance of the experts’ testimony.” Id. at 953. The Tenth Circuit then found that
no cure for the prejudice existed under the district court’s order because “nothing [plaintiff]
could have done prior to filing of the expert reports would have cured the prejudice.” Id. at 954.
While the Tenth Circuit determined that the district court had failed to engage in a proper
Woodworker’s Supply analysis and reversed the district court’s refusal to strike the four
incomplete expert reports, it noted that the case was no longer on the eve of trial and so the
district court “could allow [the experts] time to file complete expert reports without jeopardizing
the trial schedule” and the plaintiff could then file rebuttal reports. Id. Thus, it appears that the
Tenth Circuit left open the possibility that the district court could, on remand, choose to allow
full development of the expert testimony at issue.
In the unpublished case of Henderson v. National Railroad Passenger Corp., the Tenth
Circuit upheld the district court’s decision to strike a supplemental expert affidavit. 412 F. App’x
74, 82-83 (10th Cir. 2011). The court succinctly summed up its decision: “the district court
rationally concluded that a ‘supplemental’ report that adds approximately 180 pages of additional
information to a sixteen page report eight days before the discovery deadline, six months after
13
the Rule 26 deadline, and on the same date that [the defendant] moved for summary judgment
and just more than one month before all dispositive motions were due would prejudice [the
defendant] and disrupt the litigation.” Id. at 83 (some internal quotation marks omitted). “[A]s
the district court noted, if Plaintiffs needed additional time, they should have requested an
extension from the court.” Id.
Consistent with these cases, the Court’s analysis starts with the four Woodworker’s
Supply factors. First among these factors is whether the violation caused prejudice or surprise to
the party against whom the testimony is offered. Here, any surprise and prejudice is moderate.
Dr. Derlet opined that Dr. Singh had the “primary” responsibility—not “sole” responsibility—to
ensure Plaintiff’s transfer. In addition, it was clear from the beginning of this lawsuit that
Plaintiff understood that Dr. Singh was an independent contractor rather than an employee of the
United States; after all, by the time Plaintiff sued the United States he had already sued Dr. Singh
and his employer, AB Staffing Solutions, in a separate lawsuit. Given that separate lawsuit, the
United States could not be surprised that Plaintiff was proceeding under the theory that the
United States’ employees—nurses and administrative staff—bore at least some of the residual
responsibility Dr. Singh did not carry. Regarding prejudice, Dr. Derlet’s initial failure to
explicitly assign any responsibility to nurses or administrative staff would reasonably affect the
United States’ decision about whether to retain a rebuttal expert and whether to depose Dr.
Derlet.
Moreover, Plaintiff’s delay in providing Dr. Derlet’s supplemental report until after
Plaintiff settled its separate lawsuit against Dr. Singh has likely disadvantaged the United States.
The dynamics of the two lawsuits Plaintiff filed are such that the more responsibility Dr. Derlet
placed on Dr. Singh’s shoulders, the less responsibility remained available for the VA employees
14
to bear. Once Plaintiff settled with Dr. Singh, Plaintiff gained an incentive to transfer as much
blame as possible from the shoulders of Dr. Singh to the shoulders of the VA employees. By
waiting to provide the supplement to Dr. Derlet’s report until after settling with Dr. Singh,
Plaintiff deprived the United States of the opportunity to depose Dr. Derlet at a time when
Plaintiff had an incentive to place blame on the shoulders of Dr. Singh rather than on the VA
employees.
Now that Plaintiff has settled with Dr. Singh, the hands of time cannot be turned back to
cure this potential prejudice. Any deposition the United States might take of Dr. Derlet in the
future will necessarily occur after Plaintiff’s incentive has shifted. Nonetheless, this prejudice is
less than it would be in an alternative situation, such as disclosure on the eve of trial where the
United States could not depose Dr. Derlet at all. Further, if the Court ultimately chooses not to
strike Dr. Derlet’s supplemental report, it will provide the United States time to obtain a rebuttal
expert. Thus, the prejudice the United States will experience can be partially cured.
Moving to the third factor, no trial has been set and so providing the United States time to
depose Dr. Derlet and to obtain its own rebuttal expert would not disrupt trial. Also weighing in
favor of Plaintiff is the fourth factor: the United States has not alleged, and the Court does not
possess evidence, that Plaintiff acted willfully or in bad faith.
Considering these factors in the aggregate, the Court concludes that Plaintiff’s violation
of Rule 26(a) was neither substantially justified nor harmless. Despite the opportunity to file a
surreply, Plaintiff offers no excuse for not timely providing the supplemental information and
thus provides the Court with no basis to conclude that Plaintiff’s violation was substantially
justified. Further, because the prejudice this delay caused to the United States cannot be
completely cured, the Court also cannot conclude that the violation was harmless.
15
C.
Sanctions Less Severe Than Precluding Dr. Derlet From Presenting His
Supplemental Information May Be Appropriate.
This conclusion leads to the next question: what is the appropriate remedy for Plaintiff’s
belated disclosure of supplemental expert information? The presumptive remedy under Rule
37(c)(1) is that “the party is not allowed to use that information or witness to supply evidence on
a motion, at a hearing, or at a trial . . . .” The rule also provides for less draconian sanctions,
however. It continues, “[i]n addition to or instead of this sanction, the court, on motion and after
giving an opportunity to be heard” may impose a variety of other sanctions. Id. R. 37(c)(1)(A)(C).
Plaintiff proposes in his surreply that, rather than striking Dr. Derlet’s supplemental
expert report, the Court impose one of those lesser sanctions listed. She succinctly states,
“Plaintiff has no problem having Dr. Derlet deposed at the expense of Plaintiff.” Doc. 69 at 3.
The Court will construe Plaintiff’s proposal to be a motion for an alternative sanction under Rule
37(c)(1).
Rather than striking Dr. Derlet’s supplement for untimeliness,5 the Court is inclined to
grant Plaintiff’s motion and impose one or more of the alternative, less severe, sanctions at its
disposal. A number of considerations support this inclination. First, the Court prefers to resolve
cases on their merits and striking Dr. Derlet’s supplemental report for Plaintiff’s procedural
violation could be outcome determinative. As a fellow judge in this district has recognized,
“Without a finding of bad faith or gamesmanship . . . courts are loathe to invoke the strong
medicine of precluding expert testimony.” Harvey v. THI of N.M. at Albuquerque Care Ctr.,
LLC, No. 12cv727, 2015 WL 13667111, at *6 (D.N.M. Mar. 31, 2015) (Armijo, C.J.)
5
The United States has also sought to exclude Dr. Derlet’s testimony under Daubert. Doc. 54 at
7-10. The Court does not address the merits of that motion in this Order.
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(unpublished) (internal quotation marks omitted; alteration in original). Second, trial has not yet
been scheduled and so the disruption of a lesser sanction is minimal. Third, the United States has
not yet deposed Dr. Derlet and so retains whatever advantage might come with deposing a
witness in the first, rather than second, instance. Fourth, unlike the situation in Henderson v.
National Railroad Passenger Corp. where the 180 pages of additional information dwarfed the
16 pages of original information, the supplemental information Dr. Derlet provides was
predictable and fits on one page. Fifth, part of the second, and all of the third and fourth,
Woodworker’s Supply factors weigh in favor of Plaintiff.
Although the Court now provides its inclination and reasons for its inclination to the
parties, the Court stops short of making a final decision at this time. Rule 37(c)(1) states that,
before issuing alternative sanctions, a Court must provide an opportunity to be heard. Because
Plaintiff’s motion is contained in his surreply, the United States has not yet had that opportunity
to be heard. As a result, the Court will schedule a hearing on whether lesser sanctions are
appropriate and, if so, what those lesser sanctions should be. In addition to shifting the costs to
Plaintiff of any deposition the United States might wish to take of Dr. Derlet, the Court is also
inclined to allow the United States to cross-examine Dr. Derlet at trial regarding the timing of his
supplemental disclosure and to order Plaintiff to pay the United States’ reasonable expenses,
including attorney’s fees, in connection with the hearing on this matter. This is because the need
for the hearing was caused by Plaintiff’s failure to timely disclose Dr. Derlet’s supplemental
report. See Fed. R. Civ. P. 37(c)(1)(A) (providing for such cost shifting).
II.
At The Hearing, The Court Will Address The Timing Of A Possible Daubert
Hearing, But Not The Merits Of The United States’ Daubert Motion.
In addition to arguing that the Court should strike Dr. Derlet’s supplemental report as
untimely, the United States argues that, even if the Court does not strike the supplemental report,
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the report fails to pass muster under Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharms. Inc., 509 U.S. 579 (1993). Because the Court has not yet decided whether to strike Dr.
Derlet’s supplemental report and, if it does, whether doing so will result in summary judgment
for the United States, the time is not ripe to address this argument or to have a Daubert hearing.
During the upcoming hearing, however, the parties should be prepared to address whether, if the
Court does not strike Dr. Derlet’s supplemental report, the Court should deny the United States’
Daubert motion as moot with leave to refile and, if not, whether a Daubert hearing is necessary
and, if so, when the Court should schedule such a hearing.
CONCLUSION
The Court takes under advisement the United States’ Motion for Summary Judgment
And/Or To Dismiss, Doc. 58, and will hear this matter Friday, September 6, 2019, at 9:30 am in
480 Chama Courtroom, 333 Lomas Blvd NW Albuquerque, NM 87102.
_____________________________________
STEVEN C. YARBROUGH
UNITED STATES MAGISTRATE JUDGE
Presiding by consent
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