Strickland v. City of Las Cruces et al

Filing 154

MEMORANDUM OPINION AND ORDER by Chief District Judge Kenneth J. Gonzales granting 70 City Defendants' Daubert Motion No. II: to Exclude the Testimony of Expert Dr. Alen Ternian. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JONATHAN STRICKLAND,
Plaintiff,
v.

Case No. 23-cv-116 KG/KRS

CITY OF LAS CRUCES, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on City Defendants’ Daubert Motion No. II: to Exclude
the Testimony of Expert Dr. Alen Ternian, (Doc. 70), filed March 3, 2024. Plaintiff filed his
corrected Response, (Doc. 133), on February 6, 2025, and Defendants filed their Reply, (Doc.
147), on February 20, 2025. Having considered the briefing, relevant portions of the record, and
case law, the Court grants the Motion.
I.

Background
This case arises out of an incident in which Las Cruces Police Department (LCPD)

officers shot Plaintiff on March 11, 2021. Plaintiff brings claims under Title 42 U.S.C. §§ 1983
and 1988; the Fourth and Fourteenth Amendments to the United States Constitution; and state
law claims of battery, assault, intentional infliction of emotional distress, and negligence. (Doc.
1).
Defendants move to exclude the opinions and testimony of Plaintiff’s expert, Dr. Alen
Ternian, pursuant to Federal Rules of Civil Procedure 26 and 36, and Federal Rules of Evidence
403 and 702. (Doc. 70). Plaintiff offered Dr. Ternian as a pain management expert, stating he
“will address issues concerning Plaintiff’s pain management as it relates to the events and claims
at issue in Plaintiff’s operative Complaint.” (Doc. 70-1) at 3.

Defendants argue Plaintiff failed to list any facts or data Dr. Ternian considered when
coming to the conclusions in his report, in violation of Fed. R. Civ. P. 26(a)(2)(B). (Doc. 70) at
6. Defendants provided Plaintiff three opportunities to cure the deficiencies by asking for
specific facts or data Dr. Ternian considered while developing his report. Id. Plaintiff failed to
provide the requested information. Id. at 6–7. Instead, on January 22, 2024, the evening before
Dr. Ternian’s deposition, Plaintiff produced a supplemental expert disclosure consisting of 806
pages of non-bates-labeled medical records and newly disclosed notes. Id. at 7. The next day,
after Dr. Ternian’s deposition concluded, Plaintiff provided his second supplemental expert
disclosure consisting of 15 pages and provided, for the first time, Dr. Ternian’s Curriculum
Vitae. Id. According to Defendants, Plaintiff’s failures prevented Defendants from fully
considering the facts or data on which Dr. Ternian relied when preparing for his deposition. Id.
at 8. Defendants ask the Court to: (1) exclude the records produced in the supplemental expert
disclosures regarding Dr. Ternian; (2) exclude Dr. Ternian from producing additional
supplemental disclosures and from supplementing his report; (3) exclude and not consider Dr.
Ternian’s opinions and testimony; and/or (4) set a Daubert hearing to determine whether Dr.
Ternian should be allowed to testify. Id. at 11.
In Response, Plaintiff outlines the records he produced to Defendants, including medical
records and records relating to the underlying event and Plaintiff’s injuries. (Doc. 133) at 3–5.
Plaintiff contends Defendants had all relevant medical records prior to Dr. Ternian’s deposition
and Defendants were able to take a fully informed deposition. Id. at 7. Plaintiff argues that
excluding Dr. Ternian’s opinion is an improper discovery sanction because Plaintiff has not
disobeyed any order and has been responsive to defense counsel’s requests. Id.

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In Reply, Defendants maintain that Dr. Ternian’s report, opinions, and testimony should
be excluded because the report failed to include the facts and data Dr. Ternian considered, or any
records referenced in his report. (Doc. 146) at 2–3. Defendants further maintain Dr. Ternian’s
report is deficient because it is not supported by any records. Id. at 3–6.
II.

Analysis
Rule 26(a)(2)(B) requires that a party’s expert witness disclosure “must be accompanied

by a written report-prepared and signed by the witness[.]” Fed. R. Civ. P. 26(a)(2)(B). The Rule
requires the expert report to contain:
(i)
(ii)
(iii)
(iv)
(v)
(vi)

a complete statement of all opinions the witness will express and the basis and
reasons for them;
the facts or data considered by the witness in forming them;
any exhibits that will be used to summarize or support them;
the witness’s qualifications, including a list of all publications authored in the
previous 10 years;
a list of all other cases in which, during the previous 4 years, the witness testified
as an expert at trial or by deposition; and
a statement of the compensation to be paid for the study and testimony in the case.

Id.
Here, Dr. Ternian did not have a complete view of Plaintiff’s medical needs before
formulating his report resulting in an incomplete opinion. Dr. Ternian’s expert report states,
“[a]fter we receive the CT and the Ultrasound results, we’ll be able to assess the patient’s
condition.” (Doc. 70-2) at 4. However, Plaintiff never sought additional imaging services.
(Doc. 70-5) at 4–5. During his deposition, Dr. Ternian was asked if more information was
needed to make a long-term opinion in relation to Plaintiff to which he responded affirmatively.
Id. at 44–45. He stated, “I can provide a medical opinion without [more scans], but it will be
better to have those information [sic] that information.” Id. at 6. Moreover, Dr. Ternian, while
explaining the basis of his medical report, stated, “it’s very hard to determine exactly, but you

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know, you have to formulate a plan, you have to form a plan with the information that is given to
you.” Id. at 7. From the information Dr. Ternian provided, both in his report and deposition
testimony, it is clear he was not able to consider the information necessary to create a complete
opinion and report. Thus, Dr. Ternian’s report fails to comply with the requirements of Rule 26
because there is no “complete statement of his opinions” since Plaintiff never completed
additional ultrasounds and CT scans Dr. Ternian requested.
Because Dr. Ternian’s report failed to comply with Rule 26, under Rule 37(c), the Court
must determine whether the violation was justified or harmless. Under Rule 37(c)(1), “[i]f a
party fails to provide information ... as required by Rule 26(a) ..., the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); see also Vesom v.
Atchison Hosp. Ass’n, 279 Fed. Appx. 624, 631 (10th Cir. 2008) (explaining that exclusion of
evidence that is presented in violation of Rule 37(c) “is ‘automatic and mandatory’ unless the
violation was either justified or harmless”) (quoting Finley v. Marathon Oil Co., 75 F.3d 1225,
1230 (7th Cir. 1996))).
A district court has discretion to decide whether a Rule 26 violation is justified or
harmless and, when doing so, should 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.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th
Cir. 2002) (quotations omitted); 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.”); see also Walker v. Corizon

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Health, Inc., 2022 WL 1521626, at *4 (D. Kan.), reconsideration denied, 2022 WL 1623823 (D.
Kan.) (“Rule 37(c)(1) requires the court to exclude plaintiffs’ expert reports as a sanction for
failing to comply with Fed. R. Civ. P. 26(a)(2)(B).”).
The Court determines Plaintiff’s Rule 26 violations were not justified or harmless.
Plaintiff failed to provide any additional medical scans to support Dr. Ternian’s complete
opinion. Without a complete opinion, Defendants were unable to fully question Dr. Ternian
during his deposition. Plaintiff argues Defendants questioned Dr. Ternian about his initial report
and his methodology and thereby, took a fully informed deposition. (Doc. 133) at 7. However,
Defendants’ questioning does not excuse Plaintiff’s Rule 26 violations. Plaintiff did not provide
Defendants with sufficient information to verify Dr. Ternian opinions. Moreover, when Plaintiff
was asked to provide supporting facts or data, he produced 806 pages of non-bates-labeled
medical records the day before Dr. Ternian’s deposition. (Doc. 70) at 7. Even so, Defendants
did not receive Dr. Ternian’s Curriculum Vitae until the day after his deposition. Id. Despite
having ample time to cure the deficiencies and limit the prejudice to Defendants, Plaintiff failed
to do so. Plaintiff also had more than enough time to have additional medical scans completed
and chose not to fulfill Dr. Ternian’s orders. Thus, the Court finds Plaintiff’s Rule 26 violation
prejudiced Defendants. Because Dr. Ternian’s report is not properly supported, Dr. Ternian’s
testimony at trial would be disruptive and unhelpful to the jury. Although the Court does not
find Plaintiff acted willfully or in bad faith, the remaining factors weigh heavily against a
determination that the violation was justified or harmless.
III.

Conclusion
For the reasons discussed above, the Court finds that Plaintiff’s expert, Dr. Ternian,

failed to comply with Rule 26’s expert disclosure requirements which was not substantially

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justified or harmless. Therefore, the Court grants Defendants’ Motion to Exclude and Dr.
Ternian is excluded from giving testimony at trial pursuant to Rule 37.
IT IS SO ORDERED.
/s/ KENNETH J. GONZALES1
CHIEF UNITED STATES DISTRICT JUDGE

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Please note that this document has been electronically filed. To verify its authenticity, please refer to the Digital File Stamp on the NEF (Notice
of Electronic Filing) accompanying this document. Electronically filed documents can be found on the court’s PACER public access system.

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