BARNHILL v. ACCORDIUS HEALTH AT GREENSBORO, LLC et al

Filing 41

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 11/14/2023; that the instant Motion to Strike (Docket Entry 31 ) be denied, but that the following alter native sanctions for Plaintiff's failure to comply with the expert disclosure deadline be imposed: 1) on or before February 2, 2024, Plaintiff shall make Nurse Practitioner Hill-O'Neill and Medical Doctor Lowe available for depositions on d ates, at times, and at locations on which the parties mutually agree; 2) on or before February 2, 2024, Defendants may serve any expert disclosures required by Federal Rule of Civil Procedure 26(a)(2)(B) and (C); and 3) Plaintiff shall pay any premium Defendants reasonably incur to obtain any expert report(s) on an expedited basis in time for service by February 2, 2024. FURTHER RECOMMENDED that the instant Motion for Summary Judgment (Docket Entry 37 ) be denied. (sh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARY A. BARNHILL,
Plaintiff,
v.
ACCORDIUS HEALTH AT GREENSBORO,
LLC, and ACCORDIUS HEALTH, LLC,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:22CV322

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge on Defendants’ Motion to Strike Plaintiff’s Expert
Witness (Docket Entry 31), as well as the interrelated Defendants’
Motion for Summary Judgment (Docket Entry 37).

For the reasons

that follow, the Court should deny both of the instant Motions.
BACKGROUND
The Complaint in this case, which Plaintiff originally filed
in state court and Defendants removed to this Court based on
diversity of citizenship jurisdiction (see Docket Entry 1 at 1-4),
alleges

a

claim

for

“Medical

Negligence”

against

Defendant

Accordius Health at Greensboro, LLC (“AHG”) (Docket Entry 5 at 24)
and a claim for “Corporate Negligence” against Defendant Accordius
Health,

LLC

(“AH”

and,

“Defendants”) (id. at 29).1

collectively

with

Defendant

AHG,

Plaintiff brought those claims as the

“duly-qualified Administratrix of the Estate of [Decedent] Karen

1

Plaintiff also initially lodged that Corporate Negligence claim against
another Defendant (see Docket Entry 5 at 29), but Plaintiff later filed a
stipulation of dismissal as to that Defendant (see Docket Entry 16 at 1).

Faye

Rollins

Barnhill”

(id.

at

1),

who

(according

to

the

Complaint), “[a]t the time of her death, . . . was a resident of
[Defendant AHG,] a skilled nursing facility” (id. at 2), where she
“suffered personal injuries and death as a result of negligent care
by . . . Defendants collectively” (id.).

In particular, the

Medical Negligence claim asserts that:
In providing health care to [Decedent], Defendant [AHG],
and its employees and agents who were licensed healthcare
providers, failed to use their best judgment in the
treatment and care of [Decedent]; failed to use
reasonable care and diligence in the application of their
knowledge and skill to [Decedent’s] care; and failed to
provide health care in accordance with the standards of
practice among members of the same health care profession
with similar training and experience situated in the same
or similar communities at the time the health care was
provided to [Decedent].
(Id. at 24-25; see also id. at 25-28 (listing 40 failures that
caused Decedent’s death).)2

Additionally, the Complaint:

states that the conduct on the part of servants, agents,
and/or employees of Defendants acting in the course of
their employment with Defendants that give rise to this
Complaint, and all medical records pertaining to the
alleged negligence that are available to Plaintiff after
reasonable inquiry, have been reviewed by a person who is
reasonably expected to testify pursuant to Rule 702 of
the North Carolina Rules of Evidence and who has the
opinion that the conduct on the part of the agents,
servants, and/or employees of Defendants fell below the
applicable standard of care and is willing to testify to
such.
(Id. at 31; see also id. (referring to said person as “Plaintiff’s
[North Carolina] Rule [of Civil Procedure] 9(j) expert”).)

2

The Corporate Negligence claim alleges, inter alia, that Defendant AH
“breached [its] dut[y] of care by failing to ensure that [Defendant AHG] had
sufficient funds in its budget so that [it] could properly care for its
residents, including [Decedent], and ensure that [its] staff were following its
policies and procedures.” (Docket Entry 5 at 30.)

-2-

After Defendants answered (see Docket Entries 9, 10), the
parties submitted a Joint Rule 26(f) Report (Docket Entry 13),
which the Court adopted (see Text Order dated May 20, 2022).

As a

result, (A) “[t]he date for completion of all discovery (general
and expert) [wa]s July 15, 2023 (Docket Entry 13 at 2 (emphasis in
original)), (B) “[r]eports required by [Federal] Rule [of Civil
Procedure] 26(a)(2)(B) and disclosures required by [Federal] Rule
[of Civil Procedure] 26(a)(2)(C) [we]re due . . . [f]rom Plaintiff
by

February

15,

2023”

(id.

(capitalization

error

corrected)

(emphasis in original)) and “[f]rom Defendants by April 15, 2023”
(id. (colon omitted) (emphasis in original)), and (C) “[a]ll
potentially dispositive motions shall be filed by September 15,
2023” (id. at 3 (emphasis in original)).

The Joint Rule 26(f)

Report also noted that “[d]epositions of any treating physicians
and expert witnesses designated by the parties shall be arranged
between the parties . . . .”

(Id. at 2-3 (emphasis omitted); see

also id. at 1 (noting that discovery would address “issues related
to the opinions of identified experts and treating physicians, if
applicable” (emphasis omitted)).)
Approximately four months into the 14-month discovery period,
the Clerk (by Notice dated September 16, 2022) set the case for
trial during the Court’s April 2024 Master Calendar session with
final pretrial filings due between March 1 and 15, 2024.
Docket Entry 27 at 1.)

(See

Nearly eight months later, on May 4, 2023

– i.e., after the expiration of the expert report and disclosure
deadlines selected by the parties and adopted by the Court and with
-3-

just over two months left in the discovery period – the parties
filed a Joint Motion to Amend or Alter the Scheduling Order (Docket
Entry 29), in which they made the following assertions:
1) in their Joint Rule 26(f) Report, “the [p]arties agreed to
staggered expert designation deadline[s] . . . [with] Plaintiff to
serve her expert reports on February 15, 2023 and Defendants to
serve their expert reports on April 15, 2023” (id. at 1);
2) “this Court entered a Docket Text . . . with a discovery
deadline of July 15, 2023” (id.), but “[a]bsent were deadlines for
the [p]arties to designated [sic] expert witnesses” (id.; see also
id. at 2 (“Per the terms of the current scheduling order, no date
is contemplated for the [p]arties to designate and disclose their
expert witnesses and their accompanying reports.”)); and
3) “this is a medical malpractice case and requires Plaintiff
to present expert proof” (id. at 2); see also id. (“Because medical
issues are typically complex, expert testimony is required to
establish causation in North Carolina.”)).
Based

on

those

assertions,

“the

[p]arties

respectfully

request[ed] the Court grant . . . staggered expert designation
deadlines, a new discovery deadline, and a new deadline for filing
dispositive motions.”

(Id.)

Specifically, they “propose[d] the

following deadlines: Plaintiff to serve her expert reports by July
3, 2023, with Defendants’ expert reports due on August 3, 2023.
Further, the [p]arties propose[d] a new discovery deadline of
September 18, 2023 and dispositive motion deadline of October 23,
2023.” (Id. (emphasis omitted).)
-4-

The next day, the Court (per the

undersigned Magistrate Judge) “den[ied the parties’] Joint Motion
to Amend or Alter Scheduling Order.”
2023.)

(Text Order dated May 5,

That Text Order explained that, contrary to the parties’

“contention that the Court previously failed to set deadlines for
expert reports/disclosures” (id.), “by Text Order dated 05/20/2022,
the Court (per the [undersigned] Magistrate Judge) ‘adopted [the
parties’] Joint Rule 26(f) Report,’ thereby setting deadlines of
02/15/2023

and

04/15/2023,

respectively,

for

Plaintiff

and

Defendants to serve their expert reports/disclosures (as reflected
in Paragraph 2.d. of [the parties’] Joint Rule 26(f) Report)” (id.
(internal brackets omitted) (quoting Text Order dated May 20, 2022
and referring to Docket Entry 13 at 2); see also id. (“The fact
that separate Docket Text . . . did not include those dates does
not alter the plain language of the Text Order dated 05/20/2022,
which adopted the deadlines proposed by the parties for service of
expert reports/disclosures.”)).
denying the

Joint

Motion

to

As a final matter, the Text Order
Amend

or

Alter

Scheduling

Order

observed that the Clerk “ha[d] now set a trial date and extending
the discovery and dispositive motions deadlines as proposed . . .
would not leave sufficient time for the Court to resolve summary
judgment motions in advance of the final pretrial filing dates set
in [the Clerk’s] Notice [establishing the trial date].”

(Id.

(referring to Docket Entry 27).)
On July 20, 2023, i.e., five days after the close of discovery
(and

more

than

five

months

after

Plaintiff’s

expert

report/

disclosure deadline), Plaintiff filed (and apparently first served
-5-

Defendants) with two expert reports and related materials.

(See

Docket Entry 30 at 1-17 (expert report from and related materials
regarding Nurse Practitioner Kathleen A. Hill-O’Neill), 18-46 (same
as to Medical Doctor James G. Lowe); see also Docket Entry 31 at 2
(“[O]n July 20, 2023, Plaintiff untimely served her Designation of
Expert Witnesses and corresponding expert reports upon counsel for
Defendants.

Therein, Plaintiff disclosed [Nurse Practitioner]

Hill-O’Neill . . . and [Medical Doctor] Lowe . . . as expert
witnesses, along with their corresponding reports.”).)

On August

8, 2023, Defendants filed their instant Motion to Strike (Docket
Entry 31; see also Docket Entry 32 (supporting memorandum)), asking
“[t]he Court [to] strike Plaintiff’s untimely expert reports”
(Docket Entry 31 at 2; see also id. at 3 (“The Court should
preclude [Nurse Practitioner] Hill-O’Neill and [Medical Doctor]
Lowe from testifying as expert witnesses because their designations
and written reports were untimely pursuant to the Joint Rule 26(f)
Report.”)).

Plaintiff responded in opposition (see Docket Entry

34) and Defendants replied (see Docket Entry 36).
Defendants thereafter filed the instant Motion for Summary
Judgment (Docket Entry 37; see also Docket Entry 38 (supporting
memorandum)), which they “based on Plaintiff’s untimely designation
of expert witnesses, and Plaintiff’s inability to present a prima
facie case in support of her claims” (Docket Entry 38 at 3; see
also id. at 7 (“Plaintiff’s failure to timely designate expert
witnesses leaves her with no expert testimony establishing the
standard of care, that a breach occurred, and causation evidence.
-6-

Therefore, Defendants are entitled to summary judgment as a matter
of law.”)).

Again, Plaintiff responded in opposition (see Docket

Entry 39) and Defendants replied (see Docket Entry 40).
DISCUSSION
For three decades, Federal Rule of Civil Procedure 26(a) has
provided for a three-tier disclosure process (separate from the
party-initiated discovery process), which:
requires all parties (1) early in the case to exchange
information regarding potential witnesses, documentary
evidence, damages, and insurance, (2) at an appropriate
time during the discovery period to identify expert
witnesses and provide a detailed written statement of the
testimony that may be offered at trial through specially
retained experts, and (3) as the trial date approaches to
identify the particular evidence that may be offered at
trial.
Fed. R. Civ. P. 26 advisory committee’s note, 1993 amend., subdiv.
(a).

The middle tier, the “Disclosure of Expert Testimony,” falls

under Federal Rule of Civil Procedure 26(a)(2), which mandates
that, “[i]n addition to the disclosures required by [Federal] Rule
[of Civil Procedure] 26(a)(1), a party must disclose to the other
parties the identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705.”
Civ. P. 26(a)(2)(A).

Fed. R.

“Unless otherwise stipulated or ordered by

the [C]ourt, th[at] disclosure must be accompanied by a written
report — prepared and signed by the witness — if the witness is one
retained or specially employed to provide expert testimony in the
case . . . .”

Fed. R. Civ. P. 26(a)(2)(B).

“A party must make

these disclosures at the times and in the sequence that the [C]ourt
orders.”

Fed. R. Civ. P. 26(a)(2)(D).
-7-

In

this

“[r]eports

case

(as

required

detailed

by

in

[Federal]

the

Rule

Background
[of

Civik

section),
Procedure]

26(a)(2)(B) . . . were due . . . [f]rom Plaintiff by February 15,
2023” (Docket Entry 13 at 2 (emphasis omitted)).
dated May 20, 2022 (adopting Docket Entry 13).)

(See Text Order
As Plaintiff has

conceded, “[t]here is no doubt that [she] missed [her] deadline[]
to designate [her] experts.”

(Docket Entry 34 at 3.)

“On motion

or on its own, the [C]ourt may issue any just orders, including
those

authorized

by

[Federal]

Rule

[of

Civil

Procedure]

37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to
obey a scheduling or other pretrial order.”

Fed. R. Civ. P.

16(f)(1); see also Fed. R. Civ. P. 16(f)(2) (“Instead of or in
addition to any other sanction, the court must order the party, its
attorney, or both to pay the reasonable expenses — including
attorney’s fees — incurred because of any noncompliance with
[Federal Rule of Civil Procedure 16], unless the noncompliance was
substantially justified or other circumstances make an award of
expenses unjust.”).

Coordinately, “[i]f a party fails to provide

information or identify a witness as required by [Federal] Rule [of
Civil Procedure] 26(a) . . ., the party is not allowed to use that
information or witness to supply evidence on a motion . . . or at
trial,

unless

harmless.”

the

failure

was

substantially

justified

or

is

Fed. R. Civ. P. 37(c)(1); see also id. (“In addition to

or instead of this sanction, the court, on motion and after giving
an

opportunity

to

be

heard:

(A)

may

order

payment

of

the

reasonable expenses, including attorney’s fees, caused by the
-8-

failure; (B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including any of the
orders

listed

in

[Federal]

Rule

[of

Civil

Procedure]

37(b)(2)(A)(i)-(vi).”).3
Although – when Defendants filed the instant Motion to Strike
– Plaintiff had not yet attempted to use any expert evidence in
connection with a motion or at trial, Defendants (anticipating such
future use) focused the instant Motion to Strike on Federal Rule of
Civil Procedure 37(c)(1)’s bar against an improperly disclosed
expert’s “use . . . ‘on a motion . . . or at trial, unless the
failure was substantially justified or harmless.’”

(Docket Entry

31 at 2 (quoting Fed. R. Civ. P. 37(c)(1)); see also Docket Entry
32 at 3 (including same quotation and also quoting from discussion

3

The rule provisions cross-referenced in Federal Rules of Civil Procedure
16(f)(1) and/or 37(c)(1) identify these sanctions:
(i) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the action,
as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order
except an order to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A).

-9-

of said rule in Southern States Rack & Fixture, Inc. v. SherwinWilliams Co., 318 F.3d 592, 595-96 (4th Cir. 2003)).)

Continuing

on that front, Defendants elaborated that:
When determining whether a party’s failure to timely
designate an expert was “substantially justified or
harmless,” the [C]ourt looks to: “(1) the surprise to
the party against whom the evidence would be offered;
(2) the ability of that party to cure the surprise;
(3) the extent to which allowing the [evidence] would
disrupt the trial; (4) the importance of the evidence;
and (5) the non-disclosing party’s explanation for its
failure to disclose the evidence.” It is the burden of
party facing sanction to show that the untimely
designation was either substantially justified or
harmless.
(Docket Entry 32 at 3-4 (internal citation omitted) (first quoting
Fed. R. Civ. P. 37(c)(1) and then quoting and citing Campbell v.
United States, 470 F. App’x 151, 156 (4th Cir. 2012), which, in
turn, cites, inter alia, Southern States, 318 F.3d at 597).)
Despite highlighting those five factors as the key to the
Court’s consideration of substantial justification/harmlessness
under Federal Rule of Civil Procedure 37(c)(1), Defendants did not
offer a clear analysis of those five factors in relation to the
record in this case; instead, Defendants immediately turned to a
discussion of “[North Carolina] Rule [of Civil Procedure] 26(f),
which requires identification of medical experts within certain
time periods” (id. at 4), as well as North Carolina case law
addressing

that

state

rule

and

North

Carolina

Rule

of

Civil

Procedure 37 (see id. (quoting Briley v. Farabow, 348 N.C. 537, 541
(1998), and In re Pedestrian Walkway Failure, 173 N.C. App. 254,

-10-

264 (2005))).4

Then, after repeating the (uncontested) facts

showing that Plaintiff did not timely disclose her expert reports
(see id.), Defendants argued as follows:
Defendants are unfairly prejudiced by such an untimely
designation of expert witnesses. This is a complicated
medical malpractice lawsuit concerning the standard of
care to be provided a nursing home resident, whether the
standard of care was breached, and whether said breach
caused and/or resulted in the death of [the D]ecedent.
In waiting over five months to designate her experts and
serve their reports, and by further waiting until five
days after the discovery deadline to provide said expert
discovery, Defendants are left with no opportunity to
depose Plaintiff’s experts, no ability to designate their
own experts to address the opinions of Plaintiff’s expert
witnesses, and no opportunity to defend themselves. As
the Fourth Circuit opined in Campbell, a party that fails
to timely designate its expert witnesses “unfairly
inhibits its opponent’s ability to properly prepare.”
Campbell, 470 F. App’x at 157.
Defendants’ expert deadline was April 15, 2023. Having
received no timely expert designation from Plaintiff,
Defendants were not on notice of an alleged breach and/or
medical causation opinions to be offered against them.
Hence, the retention and disclosure of appropriate
experts was not possible.
Further, based on the
allegations as pled in Plaintiff’s Complaint, the lack of
a timely expert designation, as well as ongoing
communications
between
counsel,
it
was
believed
Plaintiff’s theory of liability had been disproven as of
November 3, 2022. As a result, Plaintiff’s new theory of
liability as set forth in her July 20, 2023 expert
reports both surprised and unfairly prejudiced Defendants
in their ability to mount a proper, timely defense.
Furthermore, the Joint Rule 26(f) Report required that
all discovery be completed by July 15, 2023; this
deadline has now also passed.
Plaintiff has alleged
medical negligence; “Because the standard of care in a

4

“As a general matter, state procedural rules do not apply in federal
court.” Andes v. United States, No. 1:19CV5, 2020 WL 3895780, at *5 (W.D. Va.
July 10, 2020) (unpublished). Defendants did not articulate any reason why North
Carolina Rules of Civil Procedure 26(f) and/or 37 (or North Carolina decisional
authority interpreting those state rules) would apply in this Court in this
instance. (See Docket Entry 32 at 4.)

-11-

medical malpractice action generally involves specialized
knowledge, expert testimony is necessary to establish the
applicable standard of care and any corresponding
breach.” Atkins v. Mortenson, 183 N.C. App. 625, [630]
(2007). Medical malpractice actions require extensive
and costly discovery.
This Court stated in its Text
Order denying Joint Motion to Amend or Alter Scheduling
Order that the Court “has now set a trial date and
extending the discovery and dispositive motions deadlines
. . . would not leave sufficient time for the Court to
resolve summary judgment motions in advance of the final
pretrial filing dates set in [the trial-date] Notice.”
Plaintiff, by waiting some five months past her deadline
to designate experts, and further by waiting until five
days after the discovery deadline, has left Defendants
with no opportunity to timely defend themselves and mount
a proper defense. In order for Defendants to be afforded
the opportunity to depose Plaintiff’s expert witnesses,
designate experts of their own, and file a dispositive
motion, the current case management order would have to
be amended and the trial date postponed. This Court made
it abundantly clear in its Text Order [d]enying [the
parties’] Joint [M]otion to Amend or Alter [the]
Scheduling [O]rder that it would not be altering set
deadlines. Thus, because of Plaintiff’s untimely expert
designations and reports, Defendants are severely
prejudiced and left without any opportunity to conduct
additional discovery, depose Plaintiff’s expert witness,
and provide adequate expert reports of their own.
(Id. at 4-6 (internal brackets and some citations omitted); see
also Docket Entry 31 at 2-3 (“Defendants are unfairly prejudiced by
Plaintiff’s

untimely

expert

witness

designations

and

reports.

Plaintiff’s expert designation and disclosure deadline, set by the
Joint Rule 26(f) Report, has now passed, as has the discovery
deadline. Because of the untimely designation of expert witnesses,
Defendants

are

now

left

additional

discovery,

without

depose

any

opportunity

Plaintiff’s

provide expert reports of their own.”).)

-12-

expert

to

conduct

witness,

and

As that block quotation reflects, Defendants made no effort to
map their (somewhat disjointed) arguments in support of the instant
Motion to Strike onto the Fourth Circuit’s five-factor test for
evaluation of substantial justification/harmlessness under Federal
Rule of Civil Procedure 37(c)(1).

(See Docket Entry 32 at 4-6.)

“A party should not expect a court to do the work that it elected
not to do,” Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL
906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014) (unpublished) (Schroeder,
J.), but the undersigned Magistrate Judge nonetheless has distilled
from the above-quoted paragraphs these contentions:
1) the factors of “surprise to [Defendants],” Southern States,
318

F.3d

at

surprise,”

597,
id.,

and
weigh

“ability

of

against

a

[Defendants]
finding

of

to

cure

the

substantial

justification/harmlessness, because (A) Plaintiff delayed for “five
months [past her deadline] to designate her experts and serve their
reports, and . . . five days after the discovery deadline to
provide said expert discovery” (Docket Entry 32 at 5), which “left
[Defendants] with no opportunity to depose Plaintiff’s experts[
and] no ability to designate their own experts to address the
opinions of Plaintiff’s expert[s]” (id.), and (B) “[Defendants]
believed

Plaintiff’s

[original]

theory

of

liability

had

been

disproven as of November 3, 2022” (id.), but “Plaintiff[ presented
a] new theory of liability . . . in her July 20, 2023 expert
reports [which] surprised and unfairly prejudiced Defendants in
their ability to mount a proper, timely defense” (id.)); and

-13-

2) the factor of “disrupt[ing] the trial,” Southern States,
318

F.3d

at

597,

weighs

against

a

finding

of

substantial

justification/harmlessness, because “to [] afford[ Defendants] the
opportunity

to

depose

Plaintiff’s

expert

witnesses,

designate

experts of their own, and file a dispositive motion, the current
case management order would have to be amended and the trial date
postponed” (Docket Entry 32 at 6).5
In

response

to

the

instant

Motion

to

Strike,

Plaintiff

acknowledged the (five) Southern States factors and their “use[] by
Defendants in their [supporting m]emorandum” (Docket Entry 34 at 4
n.2), but structured her argument around the analysis in Akeva
L.L.C. v. Mizuno Corp., 212 F.R.D. 306 (M.D.N.C. 2002) (Eliason,

5

In addition, Defendants’ argument that “Plaintiff has alleged medical
negligence [and] . . . expert testimony is necessary to establish the applicable
standard of care and any corresponding breach” (Docket Entry 32 at 5) appears to
bear on the (fourth) factor concerning “the importance of the evidence,” Southern
States, 318 F.3d at 597; however, the criticality of the expert evidence at issue
to the survival of Plaintiff’s claims could (at least in the eyes of some judges)
undermine Defendants’ request that the Court exclude that expert evidence for
summary judgment purposes and at trial, see, e.g., Mayor & City Council of
Baltimore v. Unisys Corp., No. 12CV614, 2013 WL 4784118, at *5 (D. Md. Sept. 5,
2013) (unpublished) (declining to exclude late disclosed expert evidence, after
observing that, “considering the importance of the evidence as required by the
fourth [Southern States] factor, a wholesale exclusion of the [plaintiff’s] only
damages expert would utterly hamstring the [plaintiff’s] ability to prove its
case”); but see, e.g., Finch v. BASF Catalysts LLC, No. 1:16CV1077, 2018 WL
2770140, at *3 (M.D.N.C. June 8, 2018) (unpublished) (Eagles, J.) (“[T]he more
important the evidence, the less justification the plaintiff has for failure to
disclose it and the more prejudiced [the defendant] would be if the evidence were
allowed.”). At a minimum, “this factor must be viewed from the perspective of
both parties,” Southern States, 318 F.3d at 598 (internal quotation marks
omitted), but Defendants did not develop any meaningful argument about how the
Court should view this factor from either side’s perspective (see Docket Entry
32 at 5) and “[i]t is not the Court’s responsibility . . . to craft arguments for
a party,” Allen v. BMW Mfg., Co., LLC, Civ. No. 7:05-2450, 2006 WL 4451894, at
*5 (D.S.C. Nov. 7, 2006) (unpublished), recommendation adopted, 2007 WL 1032082
(D.S.C. Mar. 30, 2007) (unpublished), aff’d, 260 F. App’x 623 (4th Cir. 2008).

-14-

M.J.) (see Docket Entry 34 at 4-11). In that decision, now-retired
Magistrate Judge Russell A. Eliason expressly considered “what rule
to apply in evaluating whether [the] plaintiff’s expert report
filings were untimely and what sanctions to impose.”
F.R.D. at 309.

Akeva, 212

There, as here, “[the d]efendants request[ed]

sanctions under Fed. R. Civ. P. 37(c),” id., but “there was an
initial pretrial conference scheduling plan and order . . . which
governed and controlled disclosures,” id.

In such circumstances,

i.e., “[w]hen a dispute arises concerning violation of expert
disclosure obligations pursuant to a court approved discovery plan,
[Magistrate Judge Eliason concluded that] the Court should first
look to [Federal] Rule [of Civil Procedure] 16(f) for determining
. . . sanctions, as opposed to [Federal] Rule [of Civil Procedure]
37(c).”

Id.

As he explained, that approach makes sense because

the former provision “specifically speaks to non-compliance with a
scheduling or pretrial order,” id., and applies only when litigants
“[have] brought [such non-compliance] to the Court’s attention by
motion,” id., whereas the latter provision “is self-executing and
. . . come[s] into play . . . at or near trial,” id.6

6

Moreover, under Federal Rule of Civil Procedure 37(c)(1)’s plain
language, unless a party actually presents untimely disclosed expert evidence to
the Court, “[Federal] Rule [of Civil Procedure] 37(c)(1) [i]s unavailable,”
Petrone v. Werner Enters., Inc., 940 F.3d 425, 434 (8th Cir. 2019), because, “by
its express terms, [Federal] Rule [of Civil Procedure] 37(c)(1) applies only when
a party fails to comply with [Federal] Rule [of Civil Procedure] 26(a) and then
seeks to use the information ‘on a motion, at a hearing, or at a trial,’” id. at
435 (emphasis added) (quoting Fed. R. Civ. P. 37(c)(1)).

-15-

Magistrate Judge Eliason subsequently surveyed the case law on
sanctions under Federal Rule of Civil Procedure 16(f) and deduced
therefrom these seven pertinent factors:
1) “the explanation for the failure to obey the [scheduling]
order,” id. at 311;
2) “the importance of the expert opinion,” id.;
3) “the prejudice to the opposing party by allowing the
[untimely expert] disclosures,” id.;
4) “the availability of alternative or lesser sanctions,” id.;
5) “the interest in expeditious resolution of litigation,”
id.;
6) “[the C]ourt’s need to manage its docket,” id.; and
7) “[the] public policy favoring disposition of cases on the
merits,” id.
The first six of the Akeva factors effectively match the five
Southern States factors, i.e., (A) factor five under Southern
States and factor one under Akeva both address the tardy party’s
“explanation” for the delayed disclosure, compare Southern States,
318 F.3d at 597, with Akeva, 212 F.R.D. at 311, (B) factor four
under Southern States and factor two under Akeva both address the
belatedly

disclosed

expert

evidence’s

“importance,”

compare

Southern States, 318 F.3d at 597, with Akeva, 212 F.R.D. at 311,
(C) factors one and two under Southern States together address “the
surprise to the party against whom the evidence would be offered[
and] the ability of that party to cure the surprise,” Southern
States, 318 F.3d at 597, while factors three and four under Akeva
-16-

together address the same basic issues of “the prejudice to the
opposing party . . . [and] the availability of [redress for that
prejudice via] alternative or lesser sanctions,” Akeva, 212 F.R.D.
at 311, and (D) factor three under Southern States addresses “the
extent to which allowing the evidence would disrupt the trial,”
Southern States, 318 F.3d at 597, while factors five and six under
Akeva similarly address the “the interest in expeditious resolution
of litigation[ and the C]ourt’s need to manage its docket,” Akeva,
212 F.R.D. at 311.

Thus, only Akeva’s consideration (in factor

seven) of the “public policy favoring disposition of cases on the
merits,” id., facially distinguishes it from the Southern States
rubric and other Fourth Circuit authority, see, e.g., United States
v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982) (“[T]he clear policy
of

the

[Federal]

dispositions

of

acknowledgment

Rules
claims

of

that

[of
on

Civil
their

public

Procedure]
merits

policy

in

.

.

is
.

to

encourage

.”),

supports

connection

with

the

assessment of Southern States’s (fourth) factor, which examines
“the importance of the evidence,” Southern States, 318 F.3d at 597,
see, e.g., Lightfoot v. Georgia-Pacific Wood Prods., LLC, No.
7:16CV244,

2018

WL

4517616,

at

*8

(E.D.N.C.

Sept.

20,

2018)

(unpublished) (“Regarding the fourth Southern States factor, the
[untimely] expert declarations in substance are important . . . .
Striking the [untimely] expert declarations at this juncture would
undermine full and fair determination of the merits of the issues
presented by this case.”), reconsideration granted in part on other
grounds, 2018 WL 6729636 (E.D.N.C. Dec. 21, 2018) (unpublished).
-17-

Turning back to Plaintiff’s arguments applying the facts of
this case to the Akeva factors (which, as just discussed, do not
materially differ from the Southern States factors), her opposition
to the instant Motion to Strike states:
1) “[a]s to the first [Akeva] factor, Plaintiff [concedes that
she] cannot, in full candor to this Court, offer a reason for the
delay[ed service of her expert disclosures], other than both
parties were involved in written discovery in this litigation, and
discussing the possibility of a negotiated settlement” (Docket
Entry 34 at 4-5; see also id. at 5 (“The delay was not intentional
. . . .”));7
2) “[a]s to the second factor in Akeva, [Plaintiff contends
that] the importance of the expert opinions in this case is
crucial” (id. at 5; see also id. at 6 (“[T]he importance of the two
experts cannot be overstated.”)), as (A) Nurse Practitioner HillO’Neill’s “testimony undergirds the legal viability of Plaintiff’s
claims” (id. at 6), because Nurse Practitioner Hill-O’Neill “is the
sole standard of care expert on the nursing care that should have
been provided to [Decedent]” (id.), and (B) “[Medical Doctor] Lowe
will explain to the jury the progression of [Decedent’s] subdural
hematoma

and

how,

had

she

been

transferred

to

an

emergency

department after having been found on the floor of her room, she

7

To the extent Plaintiff has suggested, as an explanation for her untimely
exert disclosures, that – in the “Text Order adopting the dates in the Joint
Rule(f) Report” (Docket Entry 34 at 2) – “[t]he Court did not include the expert
witness designation dates from the [Joint] Rule 26(f) Report” (id.), the record
(as detailed in the Background section) conclusively refutes that suggestion.

-18-

most likely would have survived her injuries” (id.), i.e., Medical
Doctor Lowe will provide required “causation testimony” (id.);
3) according to Plaintiff, “[Defendants’] foreknowledge of
what the[se] experts will testify to [gives her the advantage on]
the third Akeva factor” (id.), in that information she produced
during the discovery period establishes “[t]he lack of prejudice []
Defendants

will

suffer

[from

the

Court]

allowing

the

[late]

disclosures” (id. at 6-7; see also id. at 8 (“[T]here is no
surprise whatever.

Plaintiff could not have been more explicit

about the theory of her case, even including the prospective expert
opinions in

responses

to

[i]nterrogatories

. .

.

.”),

14-15

(reproducing interrogatory from Defendants asking Plaintiff to
“identify each person whom [she] expect[ed] to call as an expert
witness . . . and opinions to which the expert [wa]s expected to
testify,”

along

with

Plaintiff’s

response,

which

mentioned

(A) Nurse Practitioner Hill-O’Neill’s “expected [] testi[mony as]
to the breaches in the standard of care by the staff in [Defendant
AHG’s facility] by their failure to properly assess and treat
[Decedent] after her documented fall and head injury,” including
particularly “fail[ure] to assess [Decedent] for risk of falls and
risk of injury from falls; fail[ure] to properly care plan for
[her] risk of falls; fail[ure] to properly perform neurological
checks post-fall; and fail[ure] to send [her] to an emergency
department immediately after her fall, given her prior head trauma
and brain bleeding and her administration of a blood thinner,” and
Nurse Practitioner Hill-O’Neill’s “expected [] testi[mony as] to
-19-

the negative effects of understaffing on resident care,” and (B) a
doctor of osteopathic medicine’s “expected [] testi[mony as] to the
potentially catastrophic consequences of allowing [Decedent] to
fall,” including due to “administration of blood thinners,” as well
as his “expected [] testi[mony] that . . . allowing her to fall in
her room led to her death,” “that[,] had [she] been sent to an
emergency department immediately following her fall, the effects of
the [blood thinners] could have been reversed, and her subdural
hematoma likely successfully treated,” and “that [her] death was
caused by th[at] subdural hematoma”));8

8

In opposing the instant Motion to Strike, Plaintiff also countered
Defendants’ “argu[ment] that Plaintiff’s original theory of the case was
disproven by the production of purported neurochecks completed by the staff”
(Docket Entry 34 at 2 n.1), by maintaining that “the existence of neurochecks
d[id] not negate the need to discharge [Decedent] emergently to the hospital upon
finding her on the floor” (id.), and that “Plaintiff’s theory of the case ha[d]
not changed” (id.; see also id. at 8 (“Defendants argue that they are facing new
theories of liability and standard of care violations, but that is not the case.
Plaintiff’s theory of the case has been, from the outset of the litigation the
same: [Decedent’s] use of blood-thinners made her a high risk for injury and
death from a brain injury caused by a fall, and upon finding her on the floor of
her room, staff should have acted immediately, instead of allowing her to lie in
her bed, untreated, for several hours. The failure to act caused her death from
a massive subdural hematoma.”), 9 (“[I]n correspondence, Plaintiff has been
forthcoming and consistent in her theory of the case . . . .”), 16-18 (stating,
in letter from Plaintiff’s counsel to Defendants’ counsel dated October 11, 2022,
that (A) “[Decedent] was a high risk for falls, and a high risk for injuries from
falls, due to her history of falls and her daily use of anti-coagulants,”
(B) “[Decedent] needed to get to the toilet but was not able to get help from the
staff to get there” and, upon “attempt[ing] to get to the toilet,” “[s]he fell
. . . [and] hit[] her head on the floor,” (C) “[Decedent] was found on her left
side at approximately 6:30 a.m.,” (D) “[a] blow to the head like [Decedent’s] can
prove deadly to a person on an anticoagulant regimen, and it did prove deadly to
[her]”), (E) “the crux of the case . . . is what happened after [Decedent] was
discovered on the floor,” (F) notes produced by Defendant AHG about staff contact
with Decedent that morning do not make sense and do not show required
neurological checks, (G) staff did not seek emergency assistance for Decedent
until after 11:40 a.m., and (H) “[Decedent’s] brain bleed could have been
reversed had it been identified earlier,” such that “death was not a foregone
(continued...)

-20-

4) “Akeva’s fourth factor is the availability of lesser,
alternative sanctions to exclusion” (id. at 9) and Plaintiff
proffers

that

“the

Court

could

.

.

.

allow

Defendants

the

opportunity to depose Plaintiff’s experts, and designate their own
without disturbing the trial date” (id.), while “preclud[ing]
Plaintiff from deposing Defendants’ expert witnesses ahead of
trial” (id.; see also id. (arguing that said remedy would “cure
[any] element of surprise” from “Plaintiff’s untimely reports”));
5) in Plaintiff’s view, her proposed remedy also addresses the
inter-connected concerns of “[t]he fifth and sixth factors from the
Akeva

decision”

(id.),

which

emphasize

“[t]he

interest

in

expeditious resolution of litigation, and [the C]ourt’s need to
manage its docket” (id.), because that remedy “ensur[es] that the
trial in this matter will take place as planned” (id. at 10); and
6) “[a]s to the seventh factor in Akeva, the importance of a
merits-based disposition of cases, Plaintiff refers the Court to
her arguments . . . that [s]triking [her] expert reports . . . may
well end this case without consideration of the merits of the

8

(...continued)
conclusion after her fall”), 19 (stating, in letter from Plaintiff’s counsel to
Defendants’ counsel dated January 26, 2023, that (A) “[Defendants’] theory of the
case rests, in large measure, on the hand-written neuro-checks which were in the
chart [Defendants’ counsel] produced in initial disclosures, but which [Defendant
AHG] did not produce to [Plaintiff] in [response] to [her earlier] request for
the full and complete chart for [Decedent],” (B) “[i]t is clear that those neurochecks are not a true record of [Decedent’s] condition following her fall and
before her discharge to the emergency department,” and (C) “[Plaintiff’s] expert
. . . will testify that it is impossible for [Decedent] to have been
neurologically intact during the morning . . . – as reflected in the neuro-checks
– and neurologically, catastrophically devastated by noon,” as well as “that [her
subdural hematoma] was entirely reversible, had [she] been sent to the [emergency
department] when she was found on the floor, and treatment begun then”)).

-21-

Complaint” (id. (internal quotation marks and ellipsis omitted)),
and that “the Court should apply the Federal Rules of Civil
Procedure in a manner that avoids that result, if possible” (id.
(internal quotation marks omitted)).
In their reply, Defendants agreed with Plaintiff that, as to
the instant

Motion

to

Strike,

“the

Court

[should]

look[]

to

[Federal] Rule [of Civil Procedure] 16(f) to determine violations
for not disclosing expert reports at the time required under the
scheduling order, and to determine sanctions.” (Docket Entry 36 at
2 (citing Akeva, 212 F.R.D. at 309).)

Defendants further endorsed

the Court’s consideration of the seven factors singled out in Akeva
“to decide [] what kind of sanction to impose, if any.”
(citing Akeva, 212 F.R.D. at 311).)

(Id.

Regarding those factors,

Defendants made these arguments:
1)

the

first

Akeva

factor

favors

Defendants,

because

“Plaintiff’s only explanation for failing to obey the [scheduling]
order [deadline for expert disclosures] is that [her] counsel was
[engaged] with written discovery and . . . settlement negotiations”
(id.), but – in a case where an attorney “stopped ‘preparing
discovery, including the expert witness designation, under the
mistaken assumption the parties had agreed to informally delay
further discovery since settlement discussions had been initiated’”
(id. (additional internal quotations omitted) (quoting Briley, 348
N.C. at 541)) – “[t]he North Carolina Supreme Court rejected this

-22-

excuse on grounds it constituted unexcused negligence of the
attorney” (id. at 2-3 (citing Briley, 348 N.C. at 541));9
2)

although

the

second

Akeva

factor

counsels

against

exclusion, in that, in this “medical negligence case requiring
expert testimony” (id. at 3), “[o]bviously, the untimely reports
offered by Plaintiff’s experts are important” (id.), “when the
other factors weigh against the dilatory designation, . . . [a]
court does

not

abuse

its

discretion

in

excluding

the

expert

witnesses” (id. (citing Campbell, 470 F. App’x at 157));
3) “[i]n terms of prejudice[, i.e., Akeva factor three],
Plaintiff’s out-of-time expert designation placed Defendants in the
position of being unable to depose Plaintiff’s experts, designate
their own experts, or mount a proper defense” (id.; see also id.
(citing Nguyen v. Jones, No. 1:19CV337, 2020 WL 7264465, at *2
(W.D.N.C. Dec. 10, 2020) (unpublished), for proposition that “[t]o
allow [] Plaintiff to designate experts at this late date . . .
would deprive [] Defendants of the opportunity to designate their
own witnesses in rebuttal to the newly designated experts”));10

9

The portion of the decision Defendants quoted and cited actually recounts
what “the [state trial] court held,” Briley, 348 N.C. at 541, not a ruling by the
North Carolina Supreme Court, although the latter court ultimately did conclude
that the state trial court committed no abuse of discretion, see id. at 547. Nor
do Defendants illuminate how that state court ruling (made in the context of a
motion for post-judgment relief under North Carolina Rule of Civil Procedure
60(b)(1), see id.) translates to the inquiry this Court must make under Federal
Rules of Civil Procedure 16(f) and/or 37(c)(1). (See Docket Entry 36 at 2-3.)
10

The decision cited by Defendants on this point addresses the existence
of “good cause” under Federal Rule of Civil Procedure 16(b)(4) to belatedly
extend a plaintiff’s expert disclosure deadline under a scheduling order, see
Nguyen, 2020 WL 7264465, at *2, and does not address the distinct issue of
(continued...)

-23-

4) “[a]s for [Akeva’s fourth factor of] the availability of
alternative or lesser sanctions” (id.), because Plaintiff served
her expert reports not just after that deadline, but also after the
discovery deadline, remedying the prejudice to Defendants would
“necessitat[e] the entry of a new scheduling order and new trial
setting” (id.) and such laxity as to deadlines “imposes costs on
the [C]ourt and the opposing parties, both in the short and long
run” (id. at 3-4 (citing Akeva, 212 F.R.D. at 311));11 and
5)

in

relation

to

Akeva’s

sixth

factor

“addressing

the

importance of docket control” (id. at 4), Akeva recognizes that
concerns over “‘docket control planning are sufficiently important
to alone justify the exclusion of an untimely disclosed expert
report or opinion even in absence of prejudice to the opposing
party’” (id. (quoting Akeva, 212 F.R.D. at 311)).
In short order, Defendants timely filed their instant Motion
for

Summary

Judgment

(Docket

Entry

37),

reasoning

in

their

memorandum in support that (A) “this is a medical malpractice case”
(Docket Entry 38 at 2), (B) “[a] medical malpractice case requires
Plaintiff to present expert proof” (id. (citing Riggins v. SSC

10

(...continued)
whether allowing a defendant another opportunity to disclose a rebuttal expert
could remedy prejudice due to a plaintiff’s untimely expert disclosure, see id.
Defendants’ prejudice arguments in reply also did not contest the portion of
Plaintiff’s response which rebutted their argument that her untimely expert
disclosures changed her negligence theory. (See Docket Entry 36 at 3-4.)
11

If remedying the prejudice to Defendants from Plaintiff’s untimely
expert disclosure, in fact, required a continuance of the trial, that fact also
would support striking Plaintiff’s improperly disclosed expert evidence under
Akeva’s fifth factor, which considers “the interest in expeditious resolution of
litigation,” Akeva, 212 F.R.D. at 311.

-24-

Yanceyville Operating Co., LLC, 800 F. App’x 151, 155 (4th Cir.
2020))), (C) “Plaintiff waited over five months past the expert
[disclosure] deadline to designate experts and serve the required
reports” (id.), (D) “[a] party who fails to properly designate an
expert witness as required by [Federal] Rule [of Civil Procedure]
26(a) may not use the expert ‘on a motion, at hearing, or at trial,
unless the failure was substantially justified or harmless’” (id.
(quoting Fed. R. Civ. P. 37(c)(1))), and (E) “[w]ithout expert
testimony

establishing

the

standard

of

care

and

causation,

Plaintiff cannot establish a genuine issue of material fact on all
elements of her medical malpractice claim” (id. (citing Warden v.
United States, 861 F. Supp. 400, 403 (E.D.N.C. 1993))).
question

of

substantial

justification/harmlessness,

On the

Defendants

pointed to their instant Motion to Strike (see id. at 6 (citing
Docket Entry 29 and characterizing it as “setting forth the highly
prejudicial effects of Plaintiff’s untimely expert designation”)),
but did not otherwise develop any argument other than to echo a few
points they pressed with the instant Motion to Strike (see id. at
6-7 (citing Nguyen, 2020 WL 7264465, at *2, as authority for
contention that Plaintiff’s “delay deprive[d] Defendants of the
opportunity

to

depose

experts of

their

own,

Plaintiff’s
or

mount

expert
a

proper

witnesses,

designate

defense,”

restating

position (derived from Akeva) that failure to maintain “[s]trict
adherence to discovery rules . . . imposes costs on the [C]ourt and
the

opposing

parties,

both

in

the

short

and

long

run,”

and

reiterating Akeva’s stance on “importance of docket management”)).
-25-

Plaintiff responded in opposition to the instant Motion for
Summary Judgment (see Docket Entry 39), relying (as Defendants
anticipated) on the expert evidence from Nurse Practitioner HillO’Neill

to

raise

a

material

question

of

fact

as

to

whether

“[Defendant AHG’s] staff breached the standard of care by not
discharging [Decedent] to an emergency department upon finding her
lying on the floor in her room, due to her use of blood-thinning
medication, that made her at extremely high risk for a brain bleed”
(id. at 1-2 (referring to Docket Entry 30 at 1-17); see also id. at
5 (indicating that “[Medical Doctor] Lowe will offer testimony
solely on the progression of [Decedent’s] subdural hematoma and its
deadly consequences,” i.e., “causation testimony”)).

Further,

although Plaintiff again admitted that she failed to comply with
her expert disclosure deadline (see id. at 2), she maintained,
“[a]s detailed in [her m]emorandum in [o]pposition to [the instant]
Motion to Strike[, that] Defendants [we]re not prejudiced by [her]
failure to timely designate experts” (id. at 2-3 (citing Docket
Entry 34)).

In addition to “refer[ring] the Court to [that

m]emorandum for her detailed arguments against striking her two
expert witnesses” (id. at 3), Plaintiff emphasized:
that Defendants have been on notice since July 2022 that
[she] would rely on the expert testimony of Nurse
[Practitioner] Hill-O’Neill to establish the risk of
[Decedent’s] death as a result of striking her head on
the floor, given her use of blood-thinning medications,
and that the risk was common knowledge to all licensed
nurses in this state, and, therefore, failing to send
[Decedent] to the hospital upon finding her on the floor
was a deadly error on [] Defendants’ staff’s part.

-26-

(Id.)

Thereafter, “Plaintiff contend[ed] that granting of summary

judgment is improper at this time, since striking her expert
witnesses would be improper” (id.), insisted that “Defendant cannot
point to any prejudice in both parties’ failure to timely designate
experts pursuant to the [] scheduling order” (id.), cited Southern
States, Federal Rule of Civil Procedure 16(f), and Akeva (see id.),
and reproduced (in slightly pared down form) the arguments from her
response to the instant Motion to Strike (compare id. at 3-7, with
Docket Entry 34 at 4-10; see also Docket Entry 39 at 7 (“Due to the
availability of lesser sanctions that would put Defendants in the
same position had both parties not allowed the deadline to submit
expert reports [lapse], Plaintiff again respectfully requests [the
instant] Motion to Strike . . . be denied.

As [the instant] Motion

for Summary Judgment rests upon the presumed granting of the
[instant] Motion to Strike, Plaintiff respectfully asks that the
[instant] Motion [for Summary Judgment] be denied, as well.”)).
As a final matter, Plaintiff alternatively argued that, “[i]n
the event that [the instant] Motion to Strike . . . is granted, the
[instant] Motion for Summary Judgment is still improper. Plaintiff
can properly proceed to the jury because the jury is able to use
its common knowledge and experience to decide the issue[s] of
negligence and causation.”

(Docket Entry 39 at 7-8; see also id.

at 8 (“North Carolina courts have recognized such an exception
‘when the jury, based on its common knowledge and experience, can
understand, evaluate, and judge the legal reasonableness of a
health care

provider’s

actions.’”
-27-

(internal

brackets

omitted)

(quoting Shumaker v. United States, 714 F. Supp. 154, 159 (M.D.N.C.
1988))).)

More specifically, Plaintiff asserted:

[T]he jury’s common knowledge and experience would
instruct that a person taking medication to thin one’s
blood would lead to a deadly brain bleed if that person
struck her head on the floor. This case does not involve
complicated medical treatment – indeed, it is common
sense to know that[,] if one is at high risk for
excessive bleeding due to medication, a blow to the head
could prove deadly.
. . . Plaintiff [timely] notified Defendants that she
intends to call the North Carolina Medical Director who
completed [Decedent’s] autopsy to testify at trial. The
Medical Director will not be called as an expert witness,
but as a fact witness, who is expected to testify that
[Decedent’s] deadly brain bleed was caused by the
combination of blood-thinning medication and a blow to
the head.
The basic common nursing knowledge that a
person on blood-thinning medication who may have suffered
a head injury must be transferred to an emergency
department immediately is so widely known, that Plaintiff
can establish that standard through Defendants’ licensed
practical nurse and registered nurse employees, who will
also be called adversely by Plaintiff at trial. Again,
the jury can use the common knowledge and experience they
possess to determine negligence, based on non-expert fact
witnesses’ testimony. Therefore, respectfully, summary
judgment would be improper.
(Id. at 8-9.)
In reply, Defendants initially objected (for the first time)
that, although, “[i]n her discovery responses, Plaintiff identified
. . . [Nurse Practitioner] Hill-O’Neill[ as a ]standard of care
witness . . . [along with a] causation witness” (Docket Entry 40 at
1), when “Plaintiff ultimately served the expert report of . . .
Nurse [Practitioner Hill-]O’Neill, . . . [Plaintiff] provided no
report[] for the [previously identified causation witness]” (id. at
2 (internal footnote omitted)), but “[i]nstead . . . produced an
untimely report from a never disclosed causation witness, [Medical
-28-

Doctor] Lowe” (id.).

Defendants, however, explained neither how

disclosure of a different doctor to provide the same causation
evidence previously forecast prejudiced them nor why they neglected
to raise that objection in their filings supporting the instant
Motion to Strike or their memorandum supporting the instant Motion
for Summary Judgment.

(See id.)

“A party waives an argument by

failing to present it in its opening brief or by failing to develop
its argument — even if its brief takes a passing shot at the
issue.”

Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th

Cir. 2017) (brackets and internal quotation marks omitted).
Next, Defendants’ reply supporting the instant Motion for
Summary Judgment grouses that (A) “Plaintiff’s initial theory of
the case centered on allegations that . . . [Defendant AHG’s]
nurses failed to . . . conduct[] periodic neurological checks of [
D]ecedent, that no member of [its] staff checked on or assessed
[her] between 6:30 a.m. – 11:40 a.m., and that certain entries in
the medical record are fraudulent” (id. (missing periods added)
(citing Docket Entry 5 at 21-24)), (B) “on November 3, 2022,
counsel for Defendants provided [Plaintiff] a written rebuttal”
(id.

(citing

Docket

Entry

32-1)),

and

(C)

“Defendants

never

received a response . . . from Plaintiff rebutting [Defendants’]
points” (id.).

In fact, Plaintiff’s counsel wrote to Defendants’

counsel on January 26, 2023, to address the flaws with Defendants’
position, i.e., their reliance “on the hand-written neuro-checks
which . . . [they] produced in [their] initial disclosures, but
which

[they

originally]

did

not
-29-

produce

to

[Plaintiff]

in

[response] to [her] request for the full and complete chart for
[Decedent].”

(Docket Entry 34 at 19; see also id. (“[I]t is clear

that those neuro-checks are not a true record of [Decedent’s]
condition following her fall . . . .

[Plaintiff’s] expert . . .

will testify that it is impossible for [Decedent] to have been
neurologically intact during the morning of March 5, 2020 – as
reflected

in

the

neuro-checks

catastrophically devastated by noon.

–

and

neurologically,

He will further testify that

the [subdural hematoma] was entirely reversible, had [Decedent]
been sent to the [emergency department] when she was found on the
floor, and treatment begun then.”).)

Furthermore, Defendants

effectively abandoned this line of argument by omitting it from
their reply to Plaintiff’s response to the instant Motion to
Strike, to which she appended the above-quoted letter, in aid of
her arguments that “the [purported] neurochecks d[id] not negate
the need to discharge [Decedent] emergently to the hospital upon
finding her on the floor” (id. at 2 n.1) and that “Plaintiff’s
theory of the case ha[d] not changed” (id.; see also id. at 9
(“[I]n

correspondence,

Plaintiff

has

been

consistent in her theory of the case . . . .”).

forthcoming

and

(See Docket Entry

36 at 3-4 (discussing prejudice from untimely expert disclosure
without mentioning any supposed change of theory by Plaintiff).)
Lastly, Defendants addressed Plaintiff’s alternative, res ipsa
loquitur argument (see id. at 2-5) and repeated a handful of the
contentions from their memorandum supporting the instant Motion for
Summary Judgment (while also distinguishing the results reached in
-30-

Akeva and Indura S.A. v. Engineered Controls Int’l Inc., No.
1:10CV457, 2011 WL 3862083 (M.D.N.C. Sept. 1, 2011) (unpublished),
which Plaintiff had noted (see Docket Entry 39 at 4)) (see Docket
Entry 40 at 5-7).
begins

by

Regarding res ipsa loquitur, Defendants’ reply

pointing

to

“the

[North

Carolina]

Rule

[of

Civil

Procedure] 9(j) certification in [the C]omplaint” (id. at 2 (citing
Docket Entry 5 at 30-31)), as an indicium that Plaintiff could not
“rely[] on the common knowledge exception” (id. (italics omitted)).
That tack leads nowhere, because “the notion that an election [of
liability theories] has to be made at the time suit is filed is
inconsistent with modern pleading practice.”

Homeland Training

Ctr., LLC v. Summit Point Auto. Research Ctr., 594 F.3d 285, 295
(4th Cir. 2010).12

Defendants then pivoted to substantive North

Carolina law on res ipsa loquitur, arguing that:
The North Carolina Supreme Court has applied the common
knowledge exception in a restrictive manner as recognized
in the following:
The majority of medical treatment involves
inherent risks which even adherence to the

12

In other words, the fact that Plaintiff pled language in the Complaint
about her reliance on an expert of the sort generally required to maintain a
medical malpractice claim under North Carolina law does not foreclose Plaintiff’s
invocation at the summary judgment stage of an exception to that general
requirement.
Conversely, the Complaint’s inclusion of a certification that
Defendants’ conduct “and all medical records pertaining to the alleged negligence
that [we]re available to Plaintiff . . . have been reviewed by a person who is
reasonably expected to qualify to testify [as an expert] . . . [and to give an]
opinion that the conduct . . . of Defendants fell below the applicable standard
of care” (Docket Entry 5 at 31), undermines the argument that Plaintiff’s
untimely disclosure of a standard-of-care expert surprised Defendants, see Estate
of Burns by & through Vance v. Cohen, No. 5:18CV888, 2019 WL 2553629, at *3
(S.D.W. Va. June 19, 2019) (unpublished) (citing presence of similar
certification in the plaintiff’s complaint in finding that “surprise” factor
under Southern States “weigh[ed] heavily in [her] favor”).

-31-

appropriate standard of care cannot eliminate.
This, coupled with the scientific and technical
nature of medical treatment, renders the average
juror unfit to determine whether a plaintiff’s
injury would rarely occur in the absence of
negligence. Unless the jury is able to make such
a determination, a plaintiff clearly is not
entitled to the inference of negligence res ipsa
loquitur affords.
(Docket Entry 40 at 3 (brackets and italics omitted) (block quoting
Bluitt v. Wake Forest Univ. Baptist Med. Ctr., 259 N.C. App. 1, 6
(2018), which, in turn, quotes decisional line back to Schaffner v.
Cumberland Cnty. Hosp. Sys., Inc., 77 N.C. App. 689, 692 (1985),
which, in turn, quotes and cites Mitchell v. Saunders, 219 N.C.
178, 182 (1941)).)

After reproducing that quotation, Defendants

did not connect its general statement about the complexity of most
medical treatment to the facts of this case (see id.), but instead
argued that Plaintiff cannot rely on res ipsa loquitur to make out
her medical negligence claim, due to (A) Decedent’s status as “a
mentally competent adult” (id.), and (B) a multiple-layers-ofhearsay report indicating “that [she] denied hitting her head
during the fall” (id. (citing Docket Entry 40-1)).
Defendants’ reply then makes these remarks, which (as best as
the undersigned Magistrate Judge can discern) attempt to substitute
sarcasm for reasoned analysis on the question of whether – even if
Plaintiff could satisfy the standard-of-care and breach elements of
her medical negligence claim via the res ipsa loquitur route – she
still would need expert evidence to prove the causation element
(i.e., to permit a reasonable jury to find that, if Defendant AHG’s
nursing staff immediately had sought emergency aid upon finding
-32-

Decedent on the floor with possible head trauma, that aid likely
would have prevented her death):
Plaintiff contends that an average juror would understand
that taking medication to thin one’s blood would lead
directly to a deadly brain bleed in the event of a fall.
Presumably, an average juror would also understand the
steps necessary and time required to administer the
proper drugs to reverse the effects of the blood thinning
medication so that surgical intervention could safely
take place. Finally, it seems the average juror would
appreciate the timing as to when surgery would/would not
have provided any benefit to Plaintiff.
(Id. at 3-4.)

That approach does not advance Defendants’ cause.

See, e.g., United States v. Madison, No. 6:17CR15-37, 2020 WL
7768460, at *6 (M.D. Fla. Dec. 30, 2020) (unpublished) (“[T]he
[d]efense legal arguments seem to have . . . become a cathartic
exercise for counsel to vent frustration by deployment of sarcasm
. . . that ill serves the goal of persuasive legal argument.”),
aff’d, No. 21-12611, 2022 WL 4298175 (11th Cir. Sept. 19, 2022)
(unpublished); Hercules v. Department of Homeland Sec., No. C07270, 2008 WL 1925193, at *16 n.32 (N.D. Cal. Apr. 29, 2008)
(unpublished) (“caution[ing] against unsupported argument which
tends towards sarcasm”); BP Chems, Ltd. v. Baloun, 183 F. Supp. 2d
1158, 1159 n.1 (E.D. Mo. 2000) (“[T]he use of sarcasm . . . in th[e
plaintiff’s] brief does not serve the arguments made therein.”).
Defendants concluded their res ipsa loquitur-related reply
arguments by (A) highlighting “[the C]omplaint[’s] alleg[ations
that] Defendants are health care providers” (Docket Entry 40 at 4
(citing Docket Entry 5 at 24)), with “a duty to use reasonable care
. . . [and] to ensure [Plaintiff’s] health, safety and welfare”

-33-

(id. (citing Docket Entry 5 at 10, 30)), who “fell below the
applicable standard of care” (id. (citing Docket Entry 5 at 31)),
in “provid[ing] nursing and rehabilitative care” (id. (citing
Docket Entry 5 at 9)), (B) relying on Littlepaige v. United States,
528 F. App’x 289, 294 (4th Cir. 2013), as “a factually similar case
involving a fall with catastophic injuries, [in which] the Fourth
Circuit determined the complaint alleged medical malpractice and
not ordinary negligence” (Docket Entry 40 at 4; see also id.
(quoting language from Littlepaige, 528 F. App’x at 293, construing
North Carolina law as recognizing that, “‘when nurses make medical
decisions requiring clinical judgment and intellectual skill, they
are providing professional services’” and quoting Deal v. Frye
Reg’l Med. Ctr., Inc., 202 N.C. App. 584 (table), 2010 WL 522727,
at *4 (Feb. 16, 2010) (unpublished), for proposition that, “[w]hen
making a ‘Nursing Diagnosis of the patient’s potential for injury
from falls relating to neurological problems, the [nurses’] acts
. . . require clinical judgment and intellectual skill . . . [and
thus] involve[] the rendering of professional services’” (internal
brackets, ellipses, emphasis, and some quotation marks omitted))),
and (C) reciting part of North Carolina’s statutory definition of
“medical malpractice action” (id. at 4-5 (quoting N.C. Gen. Stat.
§ 90-21.11(2)(a))).

The reply, however, does not demonstrate why

the quoted allegations from the Complaint and the cited authority
preclude reliance in this case on the res ipsa loquitur exception
to North Carolina law’s general requirement of expert evidence in
medical negligence cases.

(See id. at 4-5.)
-34-

Based on a thorough review of the record and the parties’
filings (as documented above), in light of the Akeva and Southern
States factors, the undersigned Magistrate Judge recommends that
the

Court

decline

(A)

to

strike

Plaintiff’s

untimely

expert

disclosures, pursuant to Federal Rule of Civil Procedure 16(f)(1)
and/or (B) to preclude Plaintiff from relying (for summary judgment
purposes and

at

trial)

on

the

expert

opinions

and

witnesses

included in those belated disclosures, pursuant to Federal Rule of
Civil Procedure 37(c)(1).

Starting with Akeva factor one/Southern

States factor five, concerning Plaintiff’s “explanation,” Southern
States, 318 F.3d at 597; Akeva, 212 F.R.D. at 311, Plaintiff has
conceded that “[she] cannot . . . offer a reason for the delay[ed
service of her expert disclosures], other than both parties were
involved in written discovery in this litigation, and discussing
the possibility of a negotiated settlement” (Docket Entry 34 at 45).

That sort of “explanation of inadvertence, mistake, and/or

neglect is not a particularly convincing explanation for why the
[expert] report[s] w[ere] not [timely] disclosed . . . .” Crimmins
v. United States, No. 2:17CV3470, 2019 WL 3766475, at *5 (D.S.C.
Aug. 9, 2019) (unpublished).

This factor thus “cuts against

[Plaintiff, but] alone is not a basis to deny her the opportunity
to [use the late-disclosed expert evidence], and, [as a result],
dismiss her case in its entirety.”

-35-

London v. Washington Metro.

Area Transit Auth., No. 8:21CV1497, 2023 WL 3727058, at *8 (D. Md.
May 30, 2023) (unpublished) (emphasis added).13
Moving on to Akeva factor two/Southern States factor four’s
focus on the belatedly disclosed expert evidence’s “importance,”
Southern States, 318 F.3d at 597; Akeva, 212 F.R.D. at 311,
Defendants have acknowledged that, “obviously, the untimely reports
offered by Plaintiff’s experts are important” (Docket Entry 36 at
3).

Indeed, the instant Motion for Summary Judgment rests on the

premise that, “[w]ithout [this] expert testimony establishing the
standard of care and causation, Plaintiff cannot establish a
genuine issue of material fact on all elements of her medical
malpractice claim, and therefore that claim must be dismissed.”
(Docket Entry 38 at 2.)14

Accordingly, although “this factor must

be viewed from the perspective of both parties,” Southern States,
318 F.3d at 598 (internal quotation marks omitted), and “[i]t is
not entirely clear which way this factor generally cuts,” Gilley v.
C.H. Robinson Worldwide, Inc., Civ. No. 1:18-536, 2021 WL 2785333,

13

For purposes of Federal Rule of Civil Procedure 37(c)(1), this “factor
– explanation for the nondisclosure – relates primarily to the substantial
justification exception,” Southern States, 318 F.3d at 597, whereas the remainder
“of these factors . . . relate mainly to the harmlessness exception,” id.
Accordingly, although Plaintiff cannot qualify for the substantial justification
exception to exclusion under Federal Rule of Civil Procedure 37(c)(1), she can
still avoid exclusion under its harmlessness exception.
14

As discussed previously, Plaintiff has argued that, via the res ipsa
loquitur exception, her medical negligence claim could survive the exclusion of
her expert witnesses; however, she also has “noted that [s]triking [her] expert
reports and opinions . . . may well end this case without consideration of the
merits of the Complaint[ and has urged that] the Court should apply the Federal
Rules of Civil Procedure in a manner that avoids that result, if possible”
(Docket Entry 39 at 7 (internal ellipses and quotation marks omitted)).

-36-

at *5 n.7 (S.D.W. Va. July 2, 2021) (unpublished) (emphasis added),
in this specific situation, this factor – and the related Akeva
factor

seven,

which

recognizes

the

“public

policy

favoring

disposition of cases on the merits,” Akeva, 212 F.R.D. at 311 –
tips the scale toward the conclusion that an exclusion “sanction is
not [] appropriate,” Estate of Burns by & through Vance v. Cohen,
No. 5:18CV888, 2019 WL 2553629, at *3 (S.D.W. Va. June 19, 2019)
(unpublished).15
Plaintiff’s case.

Simply put, “the evidence is critical for []
If the Court were to exclude this testimony, []

Plaintiff would have no witness that could speak to [causation or]
Defendant[s’] medical standard of care.”

Id.; see also London,

2023 WL 3727058, at *8 (deeming refusal to exclude late disclosed
expert evidence as “made all the more appropriate by the fact that
the information is directly relevant to the case” and, “without the
evidence, the jury would not have sufficient means to determine
whether [the p]laintiff’s complained of injuries were the result of
the accident at the center of this case”).
Next, for three reasons, Akeva factors three and four/Southern
States factors one and two, i.e., “the prejudice to [Defendants
and] . . . the availability of [redress for that prejudice via]

15

Defendants have not developed any argument that the importance-of-theevidence factor favors exclusion.
(See Docket Entry 32 at 5 (arguing that
“expert testimony is necessary to establish the applicable standard of care and
any corresponding breach” without asserting that belatedly disclosed expert
evidence’s significance supports exclusion); Docket Entry 36 at 3 (appearing to
concede that this factor weighs against exclusion by admitting importance of this
untimely expert evidence, but contending that, “when the other factors weigh
against the dilatory designation, . . . [a] court does not abuse its discretion
in excluding the expert witnesses”); Docket Entry 38 at 1-7 (failing to discuss
this factor); Docket Entry 40 at 1-7 (same).)

-37-

alternative or lesser sanctions,” Akeva, 212 F.R.D. at 311, and/or
“the surprise to [Defendants and their] . . . ability to cure the
surprise,” Southern States, 318 F.3d at 597, also counsel against
exclusion of the expert evidence at issue.

First, through its

inclusion of a certification under North Carolina Rule of Civil
Procedure

9(j),

the

Complaint

put

Defendants

on

notice

that

Plaintiff would rely on a medical expert to establish her claim of
medical negligence.

(See Docket Entry 5 at 31.)

Courts within the

Fourth Circuit have treated similar state-law-mandated pleading
statements as strong indicators that a plaintiff’s untimely expert
disclosure did not surprise the defendant.

See London, 2023 WL

3727058, at *7; Estate of Burns, 2019 WL 2553629, at *3.16
Second, during the discovery period, Plaintiff responded to an
interrogatory from Defendants asking her to “identify each person
whom [she] expect[ed] to call as an expert . . . and opinions to
which the expert [wa]s expected to testify” (Docket Entry 34 at
14),

by

listing

(A)

Nurse

Practitioner

Hill-O’Neill

and

her

“expected [] testi[mony as] to the breaches in the standard of care
by the staff in [Defendant AHG’s facility] by their failure to
properly assess and treat [Decedent] after her documented fall and
head injury” (id. at 15), including “fail[ure] to send [her] to an
emergency department immediately after her fall, given her prior
head trauma and brain bleeding and her administration of a blood

16

"Nor is it [otherwise] surprising that [] Plaintiff would have an expert
witness to support [her] theory of the case in a medical malpractice case."
Estate of Burns, 2019 WL 2553629, at *3.

-38-

thinner” (id.; see also id. (divulging Nurse Practitioner HillO’Neill’s

“expected

[]

testi[mony

about]

negative

effects

of

understaffing on resident care”)), and (B) a doctor of osteopathic
medicine’s

“expected

[]

testi[mony

as]

to

the

potentially

catastrophic consequences of allowing [Decedent] to fall” (id.),
including due to “administration of blood thinners” (id.), as well
as his “expected [] testi[mony] that . . . allowing her to fall in
her room led to her death” (id.), “that[,] had [she] been sent to
an emergency department immediately following her fall, the effects
of the [blood thinners] could have been reversed, and her subdural
hematoma likely successfully treated” (id.), and “that [her] death
was caused by th[at] subdural hematoma” (id.).

Defendants thus

cannot show prejudice/surprise because, although Plaintiff “did not
properly disclose [her] expert witness [reports under Federal Rule
of

Civil

Procedure

26(a)(2)(B)]

pursuant

to

the

Court’s

[scheduling] order, [Defendants] w[ere] aware [Nurse Practitioner
Hill-O’Neill and a causation witness] would be testifying [and what
opinions they would give] through written discovery.”

Estate of

Burns, 2019 WL 2553629, at *3.17

17

Because Defendants failed to argue that the substitution of Medical
Doctor Lowe for the originally named causation expert prejudiced them until they
filed their reply in support of the instant Motion for Summary Judgment and
failed even then to articulate the nature of any resulting prejudice (see Docket
Entry 40 at 1-2), Defendants forfeited that argument, see Grayson O, 856 F.3d at
316. Likewise, the record refutes Defendants’ inconsistently voiced view that
Plaintiff’s untimely expert disclosures present a different theory of the case
than Plaintiff proffered before that point.
(See Docket Entry 34 at 19
(explaining, in letter from Plaintiff’s counsel to Defendants’ counsel dated
January 26, 2022, that Defendants’ recent production of purported neuro-checks
performed on Decedent after her fall did not alter Plaintiff’s theory that
(continued...)

-39-

Third, “there is a clear opportunity to cure [any possible
prejudice to Defendants] without disruption of the trial.” Gilley,
2021 WL 2785333, at *5; see also id. (observing that, in that case,
“[t]rial [wa]s well over two months away”).

Or, as Plaintiff

phrased it, “there are lesser, alternative sanctions available to
the Court other than striking Plaintiff’s expert reports” (Docket
Entry 34 at 9), in “that the Court could allow discovery to reopen
to allow Defendants the opportunity to depose Plaintiff’s experts,
and [could allow Defendants another chance to] designate their own
[experts] without disturbing the trial date in April 2024” (id.),
while imposing on Plaintiff the “lesser, alternative sanction [of]
. . . preclud[ing her] from deposing Defendants’ expert witnesses
17

(...continued)
failure of Defendants’ staff to seek immediate emergency care for Decedent upon
learning that she had fallen (while knowing that her use of blood-thinners placed
her at grave risk of brain bleeding) breached applicable standard of care and
caused her death).) In fact, as Plaintiff has contended, by the time Defendants’
expert disclosure deadline arrived “in April 2023[,] . . . Defendants [c]ould
have taken the wealth of information [available to them] regarding Plaintiff’s
theory of the case[] and . . . procur[ed] expert witnesses to counter the
opinions they knew Plaintiff’s experts would offer.” (Docket Entry 34 at 7.)
Instead, Defendants “miss[ed] their own [expert disclosure] deadline” (id.), not
because of Plaintiff’s failure to timely serve her expert disclosures, but rather
because they too neglected to take note of the Court’s adoption (via Text Order)
of the expert disclosure deadlines the parties included in their Joint Rule 26(f)
Report, all as confirmed by the fact that, after both sides’ expert disclosure
deadlines passed, Defendants “join[ed] with Plaintiff in a request to amend the
[s]cheduling [o]rder” (id. (referring to Docket Entry 29 at 1-2)). Given that
context, Plaintiff correctly has noted that Defendants do not stand on a
particularly firm foundation from which to “complain about [her] having missed
her [expert disclosure] deadline” (id.). See Gilley, 2021 WL 2785333, at *5
(“[L]itigants are expected to take necessary action to mitigate any surprise that
late-disclosed evidence may cause.”). With that consideration in mind, the Court
should decline to require Plaintiff to reimburse Defendants for the reasonable
expenses, including attorney’s fees, they incurred in bringing the instant Motion
to Strike because the “circumstances make [such] an award unjust,” Fed. R. Civ.
P. 16(f)(2), and similarly, as to the instant Motion for Summary Judgment, should
not exercise its discretion to “order payment [by Plaintiff] of [Defendants’]
reasonable expenses, including attorney’s fees,” Fed. R. Civ. P. 37(c)(1)(A).

-40-

ahead of trial” (id.; see also id. (“Such a sanction would ensure
that Plaintiff does not benefit from her error, allow Defendants
the discovery they need, and not disturb the trial date . . . .”)).
Other courts in the Fourth Circuit have endorsed similar approaches
in similar situations.

See, e.g., London, 2023 WL 3727058, at *7

(concluding that, “to the extent that [the p]laintiff’s reliance on
[late disclosed expert] would cause surprise to [the d]efendant,
any such surprise could be addressed through a brief [reopening] of
the discovery period,” for purpose of the plaintiff “mak[ing said
expert] available for deposition within thirty days”).18

18

The Court additionally can direct Plaintiff to pay any extra marginal
cost Defendants incur because they must obtain their expert reports in an
expedited fashion due to the trial date, but Defendants should shoulder the
standard-rate portion of any fees for obtaining their expert reports, as they
would have incurred that expense even if Plaintiff had complied with her expert
disclosure deadline. See Fed. R. Civ. P. 16(f)(2) (providing for shifting of
“reasonable expenses . . . incurred because of any noncompliance with [mandate
to obey scheduling order], unless the noncompliance was substantially justified
or other circumstances make an award of expenses unjust”). As a final matter,
“[t]he [C]ourt [should] acknowledge but find[] insufficient [any] claimed
prejudice that [Plaintiff’s] late disclosure [of her expert reports] interfered
with [D]efendants’ ability to seek summary judgment.” Gilley, 2021 WL 2785333,
at *5 n.8. Defendants chose to file the instant Motion for Summary Judgment
without including any argument that they could secure judgment as a matter of law
even if Plaintiff could rely on her untimely disclosed expert reports. (See
Docket Entry 38 at 1-7; Docket Entry 40 at 1-7.) Under these circumstances,
“[Defendants] ha[ve] not demonstrated adequate diligence to justify granting
[them] a second bite at the summary judgment apple.” Norris v. PNC Bank, N.A.,
Civ. No. 20-3315, 2022 WL 5054099, at *5 (D. Md. Oct. 4, 2022) (unpublished).
Furthermore, if depositions of Plaintiff’s expert witnesses reveal previously
unknown bases for seeking exclusion of their testimony, Defendants may pursue
those matters via motion(s) in limine. (See Docket Entry 27 at 1 (“Motions in
limine must be filed no later than March 8, 2024.” (bold font omitted)).) And,
if Defendants prevail on any such motion(s), the Court would retain authority,
“[a]fter giving notice and a reasonable time to respond,” Fed. R. Civ. P. 56(f),
to “consider summary judgment on its own after identifying for the parties
material facts that may not be genuinely in dispute,” Fed. R. Civ. P. 56(f)(3).

-41-

The final factors for the Court’s review, Akeva factors five
and six/Southern States factor three, address “the interest in
expeditious resolution of litigation[ and the C]ourt’s need to
manage its docket,” Akeva, 212 F.R.D. at 311, as well as “the
extent to which allowing the evidence would disrupt the trial,”
Southern States, 318 F.3d at 597.

As just noted, the steps needed

to alleviate any prejudice to Defendants from Plaintiff’s belated
disclosure of her expert reports would not require a continuance of
the trial.
experts

Allowing Plaintiff to rely on the opinions of those

therefore

neither

would

compromise

“the

interest

in

expeditious resolution of [this case],” Akeva, 212 F.R.D. at 311,
nor “would disrupt the trial,” Southern States, 318 F.3d at 597.
On

the

other

hand,

failure

to

maintain

“strict

adherence

to

[expert] discovery [scheduling] rules,” Akeva, 212 F.R.D. at 311,
may lead some parties “[to] not pay sufficient attention in the
first instance to develop[ing] expert testimony,” id., which, in
the “long run,” id., could “impose[] costs on the [C]ourt and
[other] parties,” id.; see also Walter Kidde Portable Equip., Inc.
v.

Universal

Sec.

Instruments,

Inc.,

No.

1:03CV537,

2005

WL

6043267, at *3 (M.D.N.C. July 7, 2005) (unpublished) (Dixon, M.J.)
(observing that “[t]he [C]ourt’s scheduling practice has proven to
be effective for the management of individual cases and for overall
docket control” and citing “this [C]ourt’s history of strict
adherence to discovery schedules”); Forstmann v. Culp, 114 F.R.D.
83, 85 (M.D.N.C. 1987) (Gordon, S.J.) (“[T]he scheduling order is
not

a

frivolous

piece

of

paper,
-42-

idly

entered,

which

can

be

cavalierly

disregarded

by

quotation marks omitted)).

counsel

without

peril.”

(internal

Taking account of both the absence of

any interference with the orderly disposition of this case at trial
as scheduled and the threat lax enforcement of deadlines poses to
broader docket control interests, the Court should treat this last
grouping of Akeva/Southern States factors as at equipoise.
In sum, Plaintiff has not presented an acceptable explanation
for

failing

However,

the

to

comply

belatedly

with

her

expert

disclosed

expert

disclosure
evidence

deadline.

holds

great

significance to this case and, without such evidence, Plaintiff may
not receive a merits-based determination of her claims, a result
that — under the public policy enshrined in the Federal Rules of
Civil

Procedure

Further,

(A)

Plaintiff’s

—

the
intent

the

Court

notice
to

generally

Defendants

rely

on

should

did

expert

timely

evidence

try

to

avoid.

receive
(both

about

in

the

Complaint and during discovery) undermines any claim of unfair
surprise, and (B) sanctions short of exclusion can off-set any
other prejudice to Defendants from Plaintiff’s late disclosure
without delaying the scheduled trial.

Finally, any possible long-

term negative impact on the Court’s interest in managing its docket
that may arise from the failure to strictly enforce scheduling
order deadlines in this case does not loom so large as to require
the striking of Plaintiff’s expert reports and the concomitant
potential for dismissal of her claims without regard to their
merits.

On balance, these considerations establish (A) that

striking Plaintiff’s untimely disclosed expert reports and opinions
-43-

would not constitute a “just order[],” Fed. R. Civ. P. 16(f), in
response to her failure to comply with the expert disclosure
deadline, and (B) that Plaintiff has carried her burden of showing
that “the failure . . . is harmless,” Fed. R. Civ. P. 37(c)(1),
such that she may “use that information [and those] witness[es] to
supply evidence on a motion . . . or at trial,” id.
Those conclusions also preclude the entry of summary judgment
for Defendants.

“The [C]ourt 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).
Summary

Judgment

Defendants based their instant Motion for

entirely

on

the

anticipated

exclusion

of

Plaintiff’s expert evidence pursuant to Federal Rules of Civil
Procedure 16(f)(1) and/or 37(c)(1).
Docket Entry 40 at 1-7.)

(See Docket Entry 38 at 1-7;

With that relief denied, their quest for

summary judgment likewise falls short.19

19

If the Court opts against striking/excluding Plaintiff’s expert
evidence, it need not resolve whether her claims could survive summary judgment
without such evidence (under the res ipsa loquitur exception). Should the Court
determine that it must answer that question, the undersigned Magistrate Judge
recommends that the Court rule that, at this point, Defendants have failed to
“show[] that there is no genuine dispute as to any material fact [pertaining to
that exception] and [that they are] entitled to judgment as a matter of law,”
Fed. R. Civ. P. 56(a). In particular, the Court should note that, although
“[North Carolina] courts have consistently found that res ipsa loquitur is
inappropriate in the usual medical malpractice case, where the question of injury
and the facts in evidence are peculiarly in the province of expert opinion,”
Robinson v. Duke Univ. Health Sys., Inc., 229 N.C. App. 215, 225 (2013) (internal
quotation marks and italics omitted), this case does not easily fit within the
parameters of what one would consider a “usual medical malpractice case,” id.,
with a “question of injury and [] facts in evidence [] peculiarly in the province
of expert opinion,” id., i.e., a case where a plaintiff chose to undergo a
particular treatment which carried known risks even if administered according to
(continued...)

-44-

CONCLUSION
The record does not warrant the striking of the untimely
disclosed expert reports of Nurse Practitioner Hill-O’Neill and
Medical Doctor Lowe under Federal Rule of Civil Procedure 16(f)(1)
or the exclusion of their opinions from the summary judgment record
or

at

trial

under

Federal

Rule

of

Civil

Procedure

37(c)(1).

Moreover, because Defendants have advanced no basis for summary
judgment absent the exclusion of the opinions of Nurse Practitioner
19

(...continued)
the proper standard of care, such that only a medical expert could differentiate
for a jury whether an injury accompanying that treatment occurred due to
negligence or despite its absence, see id. at 225-26 (“‘The precautions in
applying res ipsa [loquitur] to a medical malpractice action stem from an
awareness that the majority of medical treatment involves inherent risks which
even adherence to the appropriate standard of care cannot eliminate.
This,
coupled with the scientific and technical nature of medical treatment, renders
the average juror unfit to determine whether a plaintiff’s injury would rarely
occur in the absence of negligence.’” (internal brackets and italics omitted)
(quoting Schaffner, 77 N.C. App. at 692)). To the contrary, this case largely
turns on the issue of whether Defendants’ staff – armed with the knowledge that
Plaintiff took blood thinners – immediately should have sought emergency aid upon
finding her on the floor with possible head trauma (and resultant excessive brain
bleeding). Plaintiff thus did not solicit and elect for Defendants to provide
certain medical treatment which carried certain risks of harm, during the course
of which treatment she suffered one of those possible harms; rather, in the light
most favorable to Plaintiff, the record reflects that Defendants’ staff (while
providing her with separate care for a separate condition) encountered Plaintiff
in a situation indicating she may have suffered a head injury from a fall, but
neglected to obtain immediate emergency assistance, despite knowing that she used
blood thinners (and therefore faced a heightened risk of uncontrolled bleeding
from any trauma).
Viewing the case from that perspective and considering
Defendants’ failure (detailed earlier) to develop a proper argument about the
necessity of expert evidence to prove that prompt emergency intervention could
have counteracted the effect of Plaintiff’s blood thinners and could have
prevented her death), Defendants have not shown that the record forecloses, as
a matter of law, the possibility that “‘the common knowledge, experience and
sense of laymen qualifies them to conclude that [Plaintiff’s death from brain
bleeding was] not likely to occur if proper care and skill [wa]s used,’” id. at
225 (internal brackets omitted) (quoting Grigg v. Lester, 102 N.C. App. 332, 335
(1991)); see also id. at 226 (rejecting “argument that res ipsa [loquitur] is
inapplicable in [any] case [that] does not involve either a foreign object left
in the body following surgery or an injury to an area far away from and
completely unrelated to the zone of surgery” (italics omitted)).

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Hill-O’Neill and/or Medical Doctor Lowe, Defendants have failed to
demonstrate that “there is no genuine dispute as to any material
fact and [that they are] entitled to judgment as a matter of law,”
Fed. R. Civ. P. 56(a).
IT IS THEREFORE RECOMMENDED that the instant Motion to Strike
(Docket Entry 31) be denied, but that the following alternative
sanctions

for

Plaintiff’s

failure

to

comply

with

the

expert

disclosure deadline be imposed:
1) on or before February 2, 2024, Plaintiff shall make Nurse
Practitioner Hill-O’Neill and Medical Doctor Lowe available for
depositions on dates, at times, and at locations on which the
parties mutually agree;
2) on or before February 2, 2024, Defendants may serve any
expert disclosures required by Federal Rule of Civil Procedure
26(a)(2)(B) and (C); and
3) Plaintiff shall pay any premium Defendants reasonably incur
to obtain any expert report(s) on an expedited basis in time for
service by February 2, 2024.
IT IS FURTHER RECOMMENDED that the instant Motion for Summary
Judgment (Docket Entry 37) be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 14, 2023

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