Ellis et al v. Hobbs Police Department et al

Filing 254

MEMORANDUM OPINION AND ORDER by District Judge Kea W. Riggs. The 190 Motion to Strike Supplemental Expert Witness Report of William E. Foote, PHD, ABFP is DENIED. (ve)

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

BRANDON ELLIS,
JEREMY ARTIS,
VASSHAWN ROBINSON,
Plaintiffs,
vs.

Case No. 2:17-cv-01011 KWR/GBW

HOBBS POLICE DEPARTMENT,
JASON HERRERA, CHAD WRIGHT,
SHANE BLEVINS, JEREMY KIRK,
MATTHEW BURLESON, JIMMY GRIMES,
CHRISTOPHER MCCALL, J.J. MURPHY,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court upon Plaintiffs’ Motion to Strike Supplemental
Expert Witness Report of William E. Foote, PHD, ABFP, filed on November 21, 2019 (Doc. 190).
Having reviewed the parties’ pleadings and the applicable law, the Court finds that Plaintiffs’
motion is not well-taken and, therefore, is DENIED.
BACKGROUND
This case arises out of alleged racial discrimination in the Hobbs Police Department
(“HPD”) and retaliation for Plaintiffs’ opposition to racial discrimination within the Hobbs Police
Department. Plaintiffs, former HPD Officers, allege they were retaliated against for (1) opposing
or reporting HPD’s racial discrimination and (2) opposing alleged discriminatory police practices
against African Americans. Defendants include Hobbs Police Department, Chief McCall, and
several supervisors and officers.

Plaintiffs filed this case under 42 U.S.C. § 1981 and 1983, and the New Mexico
Whistleblower Protection Act. Plaintiffs’ complaint asserts the following claims:
Count I: New Mexico Whistleblower Protection Act
Count II: First Amendment Retaliation under § 1983; and
Count III: Racial Discrimination pursuant to § 1981.
Plaintiffs moves to strike a supplemental report by Defendants’ expert Dr. William Foote.
They assert that the supplemental report is not allowed under the Federal Rules of Civil Procedure
and untimely. Both parties asserted that an evidentiary hearing is unnecessary and requested the
Court rule on the papers. Docs. 251, 252.
Defendants’ expert Dr. William Foote performed a psychological evaluation of Plaintiff
Vasshawn Robinson. The purpose of the psychological evaluation was to determine whether
Plaintiff Robinson had “suffered any emotional consequences of alleged racial discrimination in
the context of his employment…” Doc. 190, Ex. 1 at 1.
Dr. Foote’s original report was timely disclosed on October 11, 2019. Dr. Foote’s
deposition was scheduled for November 18, 2019. While preparing for the deposition, Dr. Foote
realized he mistakenly failed to disclose certain data underlying his opinions, that is, the results of
the UConn Racial/Ethnic Stress & Trauma Survey that he had administered to Plaintiff Vasshawn
Robinson on September 10, 2019.
Dr. Foote produced a one-page supplemental report on November 12, 2019 describing the
test results. The supplemental report was transmitted to Plaintiffs on November 15, 2019. Dr.
Foote stated that he “did take this data into account when forming [his] opinions expressed in that
[original] report.” Doc. 197-2 at 2.
DISCUSSION

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Plaintiffs assert that Dr. Foote’s supplemental report should be stricken because it is not
allowed under the Federal Rules of Civil Procedure and is untimely. Defendants argue that the
supplemental report is timely, because it is a supplement under Fed. R. Civ. P. 26(e) to correct an
error or inaccuracy. See Fed. R. Civ. P. 26(e)(1), (2). Plaintiffs respond that supplementation
pursuant to Fed. R. Civ. P. 26(e) is not appropriate, because the information in the supplemental
report was already available to Dr. Foote when he wrote his original report and was not based on
newly discovered evidence. The Court agrees with Defendants.
Fed. R. Civ. P. 26(a)(2)(B)(i) requires that an expert report contain “a complete statement
of all opinions the witness will express and the basis and reasons for them....” Fed. R. Civ. P.
26(a)(2)(D) requires parties to disclose the written reports of their experts “at the times and in the
sequence that the court orders.”
Rule 26(e)(1) provides that a party must supplement or correct its disclosure or response
(A) “in a timely manner 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 know to the other parties during the discovery process or in writing.” Rule 26(e)(2) extends
this duty to supplement both to information in a report and to information given during the expert’s
deposition. It also provides that any additions or changes must be disclosed by the time the party’s
pretrial disclosures under Rule 26(a)(3) are due.
Rule 26(e) envisions supplementation when a party's discovery disclosures
happen to be defective in some way so that the disclosure was incorrect or
incomplete and, therefore, misleading. It does not cover failures of omission
because the expert did an inadequate or incomplete preparation. To construe
supplementation to apply whenever a party wants to bolster or submit additional
expert opinions would [wreak] havoc in docket control and amount to unlimited
expert opinion preparation.

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Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., No. 05-CV-329-GKF-SAJ, 2008 WL 4832658,
at *2 (N.D. Okla. Oct. 28, 2008).
“Supplemental disclosures are permitted, and indeed may be required.” Miller v. Pfizer,
Inc., 356 F.3d 1326, 1332 (10th Cir. 2004), citing Fed. R. Civ. P. 26(e). Generally, supplementation
is allowed to correct inaccurate or incomplete information, but is not allowed for gamesmanship,
to obtain an advantage over the opposing party, or bolster an opinion. Rodgers v. Beechcraft Corp.,
No. 15-CV-129-CVE-PJC, 2016 WL 7888048, at *2–3 (N.D. Okla. Sept. 20, 2016), report and
recommendation adopted, No. 15-CV-0129-CVE-PJC, 2017 WL 465474 (N.D. Okla. Feb. 3,
2017); Palmer v. Asarco, 2007 WL 2254343, *3 (N.D. Okla. Aug. 3, 2007) (“A supplemental
expert report that states additional opinions or rationales or seeks to “strengthen” or “deepen”
opinions expressed in the original expert report exceeds the bounds of permissible supplementation
and is subject to exclusion under Rule 37(c)(1).”); Scholl v. Pateder, No. 1:09-CV-02959-PAB,
2012 WL 2360542, at *3 (D. Colo. June 20, 2012) (“a supplemental expert report that states
additional opinions or rationales or seeks to ‘strengthen’ or ‘deepen’ opinions expressed in the
original expert report exceeds the bounds of permissible supplementation and is subject to
exclusion under Rule 37(c).”).
“To rule otherwise would create a system where preliminary [expert] 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. This result would be the
antithesis of the full expert disclosure requirements stated in Rule 26(a).
Palmer v. Asarco, 2007 WL 2254343, *3 (N.D. Okla. Aug. 3, 2007).
Defendants timely produced Dr. Foote’s 22-page report on October 14, 2019. While
preparing for his November 18, 2019 deposition, Dr. Foote noticed that he had forgotten to include
in his report that he had performed a diagnostic test, UConn Racial/ethnic Stress and Trauma
survey that he had administered to Plaintiff Vasshawn Robinson on September 10, 2019. Dr. Foote
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produced the supplemental report on November 12, 2019. Dr. Foote wrote: “Although I did not
include an account of this measure in the October 11, 2019 report, I did take this data into account
when forming my opinions expressed in that report.” Doc. 197-2, Ex. B at 2.
The Court finds no evidence of bolstering, gamesmanship, or impropriety. Rather, the
Court finds that the supplement is necessary to correct an error or omission in the report, that is,
to report data which Dr. Foote relied upon in making his original opinion. Therefore, the Court
concludes that the supplemental report was proper under Fed. R. Civ. P. 26(e) and timely under
Fed. R. Civ. P. 26(e)(2). The supplemental report was timely because it was submitted on
November 15, 2019 while the deadline to submit pretrial disclosures was December 5, 2019.
Alternatively, the Court notes that as their requested relief, Plaintiffs request that the
supplemental report be stricken or exclude. However, even if the supplemental report were
untimely, the Court sees nothing in the record justifying the extreme measure of striking the
supplemental report. The Tenth Circuit appears to instruct the Court to look to Fed. R. Civ. P.
37(c)(1) to determine the appropriate remedy. Woodworker's Supply, Inc. v. Principal Mut. Life
Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (citing Rule 37)(c)(1) as to dispute over disclosure
of expert witness); Miller v. Pfizer, Inc., 356 F.3d 1326, 1332 (10th Cir. 2004) (citing Rule
37(c)(1)).
The Tenth Circuit instructs courts to consider the following 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). Here, it is unclear how Plaintiffs were prejudiced, or how
the proceedings were disrupted. Moreover, Defendants did not engage in bad faith or willfulness.

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Rather, they reported data Dr. Foote used in forming his opinion but inadvertently omitted in his
original report.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Strike Supplemental Expert
Witness Report of William E. Foote, PHD, ABFP (Doc. 190) is DENIED.

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