Ogle v. Koorsen Fire & Security, Inc. et al

Filing 65

ORDER AND ENTRY: (1) GRANTING DEFENDANTS MOTION TO STRIKE PLAINTIFFS DISCLOSURE OF EXPERT WITNESSES AND TO EXCLUDE PLAINTIFFS EXPERT WITNESSES (DOC. 58); (2) STRIKING PLAINTIFFS EXPERT DISCLOSURE (DOC. 57) WITH REGARD TO ALL EXPERTS EXCEPT NATHANIEL LEE AND EXCLUDING ALL OF PLAINTIFFS EXPERTS EXCEPT FOR MR. LEE; (3) DIRECTING PLAINTIFFS COUNSEL TO PROMPTLY FILE A MOTION TO AMEND THE CALENDAR REGARDING THE EXPERT DISCLOSURE OF MR. LEE ONLY; AND (4) ORDERING PLAINTIFFS COUNSEL TO SHOW CAUSE AS TO WHY HE SHOULD NOT BE SANCTIONED. Signed by Magistrate Judge Michael J. Newman on 9/26/2018. (dm) Modified on 9/26/2018 (dm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TIFFANY OGLE,
Plaintiff,

Case No. 3:17-cv-127

vs.
KOORSEN FIRE & SECURITY, INC., et al.,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendants.

______________________________________________________________________________
ORDER AND ENTRY: (1) GRANTING DEFENDANTS’ MOTION TO STRIKE
PLAINTIFF’S DISCLOSURE OF EXPERT WITNESSES AND TO EXCLUDE
PLAINTIFF’S EXPERT WITNESSES (DOC. 58); (2) STRIKING PLAINTIFF’S
EXPERT DISCLOSURE (DOC. 57) WITH REGARD TO ALL EXPERTS EXCEPT
NATHANIEL LEE AND EXCLUDING ALL OF PLAINTIFF’S EXPERTS EXCEPT
FOR MR. LEE; (3) DIRECTING PLAINTIFF’S COUNSEL TO PROMPTLY FILE A
MOTION TO AMEND THE CALENDAR REGARDING THE EXPERT DISCLOSURE
OF MR. LEE ONLY; AND (4) ORDERING PLAINTIFF’S COUNSEL TO SHOW
CAUSE AS TO WHY HE SHOULD NOT BE SANCTIONED
______________________________________________________________________________
This civil case is before the Court on the motion filed by Defendants Koorsen Fire &
Security, Inc. and Commercial Fire, LLC (hereinafter referred to as “Defendants”) requesting that
the Court strike Plaintiff’s expert witness disclosure and exclude Plaintiff’s expert witnesses in
this case. Doc. 58. Plaintiff failed to timely file a memorandum in opposition to Defendants’
motion and, therefore, the undersigned issued an Order to Show Cause directing Plaintiff to either
(1) show cause as to why Defendants’ motion should not be granted; or (2) file a memorandum in
opposition. Doc. 59. Thereafter, in response to the Court’s Order to Show Cause, Plaintiff filed a
memorandum in opposition. Doc. 60. Defendants promptly filed a reply. Doc. 61.
On September 24, 2018, the Court heard oral argument on the merits of Defendants’
motion. See doc. 64. Attorney Kenneth Ignozzi participated on behalf of Plaintiff. Attorney John
Wagner appeared on behalf of Defendants. Attorney Corie Marty participated on behalf of

McDonald’s Corporation, which is a party to this suit because of a subrogation interest. As is
made clear in the memorandum in opposition,1 and was further made clear from hearing counsels’
argument during the hearing, there is no dispute that Plaintiff’s counsel failed to timely identify
expert witnesses; that his subsequently-filed untimely disclosure fails to satisfy the requirements
of Rule 26(a)(2); and that the limited issue presently before the Court is whether the untimely and
inadequate disclosure was harmless so as to avoid the exclusion of Plaintiff’s expert witnesses
under Fed. R. Civ. P. 37(c)(1).
During the hearing, the Court heard extensive argument from counsel for Plaintiff and
Defendants concerning Defendants’ motion to strike and exclude experts. At the conclusion of
the hearing, the Court directed Plaintiff’s counsel, without objection, to email to the Court for in
camera review the reports and records produced in discovery that he contends satisfies Plaintiff’s
disclosure requirements under Rule 26(a)(2). The Court received those documents via email from
Plaintiff’s counsel and has reviewed them carefully in camera. The undersigned has carefully
considered all of the foregoing, and Defendants’ motion is now ripe for decision.
I.
At issue in Defendants’ motion is Plaintiff’s expert witness disclosure. See doc. 58. The
disclosure of expert witnesses is governed by Fed. R. Civ. P. 26(a)(2), which provides that, “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.”
In addition to the mere disclosure of each expert’s identity, the party’s expert 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 or one whose duties

1

The undersigned notes that the opposition memorandum contains not a single citation to the
applicable Rules of Civil Procedure or any case law supportive of counsel’s position. See doc. 60.
2

as the party’s employee regularly involve giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B).
Reports for such experts must contain certain specific information, namely: “(i) a complete
statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts
or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize
or support them; (iv) the witness’s qualifications, including a list of all publications authored in
the previous 10 years; (v) 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 (vi) a statement of the compensation to be paid
for the study and testimony in the case.” Id.
With regard to experts not retained or specially employed to provide expert testimony in a
case, e.g., treating doctors, the mere disclosure of the expert’s identity is insufficient. See Fed. R.
Civ. P. 26(a)(2)(C).

Instead, the disclosure of a non-retained expert’s identity must be

accompanied by a statement regarding: “(i) the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts
and opinions to which the witness is expected to testify.” Id.; Little Hocking Water Ass’n, Inc. v.
E.I. DuPont de Nemours & Co., No. 2:09-CV-1081, 2015 WL 1105840, at *7 (S.D. Ohio Mar. 11,
2015). While the disclosures required by Rule 26(a)(2)(C) are “considerably less extensive than
the report required by Rule 26(a)(2)(B)[,]” the Rule does “not permit a Plaintiff to ‘dump’ medical
records on the defendant, nor do they eliminate the requirement of providing summary
disclosures.” Gleed v. AT&T Servs., Inc., No. 13-12479, 2016 WL 1451532, at *2 (E.D. Mich.
Apr. 12, 2016); see also Cosby v. Claiborne Cnty. Bd. of Educ., No. 3:17-CV-278-RLJ-HBG, 2018
WL 3233336, at *3 (E.D. Tenn. July 2, 2018) (finding that identifying physicians in response to
interrogatories and the production of medical records in discovery “does not satisfy Rule
26(a)(2)(C)” and “does not constitute harmlessness under Rule 37(c)(1)”); Little Hocking Water

3

Ass’n, 2015 WL 1105840, at *8 (holding that a Rule 26(a)(2)(C) “summary is defined as a brief
account that states the main points of a larger body of information,” not “a prodigious volume of
material”; “it does not suffice to reference large bodies of material as sources of facts”).2
“If a party fails to provide information or identify a witness 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). In fact, Rule 37(c)(1) “requires absolute compliance with Rule 26(a), that is, it ‘mandates
that a trial court punish a party for discovery violations in connection with Rule 26 unless the
violation was harmless or is substantially justified.’” Roberts ex rel. Johnson v. Galen of Va., Inc.,
325 F.3d 776, 782 (6th Cir. 2003). In other words, “the sanction of exclusion [of experts] is
automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was
either justified or harmless[.]” Id. (citing Salgado v. General Motors Corp., 150 F.3d 735, 742
(7th Cir. 1998)). The burden of providing substantial justification or harmlessness is on the
offending party, i.e., Plaintiff in this case. Id.
II.
Here, pursuant to the Court’s Preliminary Pretrial Conference Order, Plaintiff’s Rule 26
expert disclosure was to be completed on or before July 30, 2018.3 Doc. 39 at PageID 243. That
Order, consistent with the requirements of Rule 26(a)(2), specifically requires that, in addition to

2

Further, the mere fact that witnesses may be available for deposition is insufficient to excuse
noncompliance with Rule 26(a)(2) because “obviat[ing] the need to provide Rule 26(a)(2) disclosures and
reports by simply making . . . experts available to be deposed would render the Rule meaningless[.]” Kassim
v. United Airlines, Inc., 320 F.R.D. 451, 454 (E.D. Mich. 2017) (quoting Rangel v. Anderson, 202 F.Supp.3d
1361, 1367 (S.D. Ga. 2016)).
3
The undersigned notes that the expert disclosure deadlines were dates suggested by counsel in the
Rule 26(f) report (doc. 36 at PageID 233), a deadline subsequently adopted by the Court (doc. 39 at PageID
243). Plaintiff’s counsel never sought to amend such deadline prior to the filing of his September 21, 2018
opposition memorandum (and even then, the extension of time referenced in the opposition memorandum
concerns Mr. Lee only, not other experts. See doc. 60 at PageID 332; see also fn.4, infra.
4

merely revealing the identity of each expert, the party must “provide a copy of the expert’s report
or the subject matter and summary of facts and opinions for experts not required to prepare
reports.” Doc. 39 at PageID 243 (internal citation of Rule 26(a) omitted). As stated in the Court’s
General Order, “[t]he purpose of this filing of witness lists is to permit timely completion of
discovery.” See Dayton General Order No. 12-01 (effective Feb. 2, 2012). There is no dispute
that Plaintiff’s counsel failed to make a Rule 26 expert disclosure on or before July 30, 2018. Doc.
58 at PageID 303.
On August 6, 2018 -- i.e., a week after Plaintiff’s expert disclosure deadline -- Plaintiff’s
counsel filed a document with the Court in which counsel identified eight individuals as experts.
Doc. 57. The experts specifically identified are: Nathaniel Lee4; John B. Gillen, M.D.; Sue Carter,
M.D.; Faiq Akhter, M.D.; David O. Wright, M.D.; Charles D. May, D.O.; Laura Matrka, M.D.;
and Jonathan Bernstein, M.D. Doc. 57 at PageID 299-300. In addition to these identified
individuals, Plaintiff also identifies an entire medical clinic -- namely James Voice & Swallowing5
-- and unidentified medical records custodians. Id. at PageID 300. Nowhere on the disclosure
does Plaintiff’s counsel indicate whether or not the experts identified were retained or specially

4

The parties, on their own and without leave of Court, agreed to extend only the deadline for
producing Nathaniel Lee’s expert report because of an unanticipated delay in deposing a particular fact
witness, and the unanticipated testimony from that witness regarding his lack of involvement in testing the
fire extinguisher at issue in Plaintiff’s product liability claim. See doc. 60 at PageID 331. Notably, there
has been no suggestion of any unanticipated delays or other substantial justification regard Plaintiff’s
counsel’s ability to obtain medical expert opinions in this case. While the extension of deadlines in federal
court generally cannot be extended solely upon stipulation of counsel, and instead typically require an Order
of the Court, the undersigned, acting in the interest of justice (and finding substantial justification for
Plaintiff’s counsel’s inability to make a production regarding Mr. Lee as well as finding a delay regarding
disclosure of Mr. Lee’s opinion harmless in light of Defendants’ agreement to delay such disclosure),
GRANTS an extension of Plaintiff’s expert disclosure with regard to Nathaniel Lee only. The parties shall
confer immediately and Plaintiff’s counsel shall file a motion for the Court’s which requests such an
extension and proposes an agreed upon specific date by which the full disclosure with regard to Nathaniel
Lee will occur.
5
It appears that Dr. Matrka practices at the James Voice & Swallowing Clinic at Ohio State
University.
5

employed. Id. at PageID 299-300. In other words, Defendants (and the Court) are left to speculate
as to whether Rule 26(a)(2)(B) or Rule 26(a)(2)(C) applies to each expert.

Plaintiff’s

memorandum in opposition offers no clarification on this issue, though counsel made a vague
reference during the September 24th hearing that some or all of these individuals are non-retained
experts who provided treatment to Plaintiff.
Nevertheless, without dispute, the document filed by Plaintiff’s counsel was
unaccompanied by any report authored by any of the experts identified. Id.; see also doc. 60 at
PageID 330 (wherein Plaintiff’s counsel admits that, “[w]hen experts were disclosed by Plaintiff,
[expert reports] were not provided at that time”). Thus, insofar as any of the experts identified
were retained or specially employed to provide expert testimony at trial, the disclosure, on its face,
fails to comply with Rule 26(a)(2)(B).
To the extent any of the identified experts were not retained or specially employed by
Plaintiff, the disclosure also fails to meet even the less extensive requirements of Rule 26(a)(2)(C),
i.e., there is no statement regarding the subject matter upon which expert is expected to testify or
present evidence. Nor does the disclosure set forth a summary of the facts and opinions of any
expert. Doc. 57. As note above, the mere identification of each expert’s name and contact
information fails to satisfy the disclosure requirements of Rule 26(a)(2)(C). See Little Hocking
Water Ass’n, 2015 WL 1105840, at *8 (stating that “Rule 26(a)(1)(i) already requires parties to
provide the name and contact information of each individual likely to have discoverable
information -- “along with the subjects of that information” and, therefore, providing such
information alone fails to satisfy the requirements of Rule 26(a)(2)(C)).
Based on the foregoing, the Court must conclude that -- even assuming arguendo Plaintiff’s
expert disclosure (doc. 57) was timely (which it was not) -- Plaintiff’s expert disclosures: fail to

6

comply with Rule 26(a)(2) and therefore, Plaintiff “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). Plaintiff’s counsel makes no
argument regarding justification for his failure to comply with Rule 26(a)(2). Instead, counsel
contends that his untimely identification of experts (and failure to produce Rule 26(a)(2)(B) reports
or Rule 26(a)(2)(C) statements) is harmless because “[c]ounsel for Defendants ha[d] all of the
exert witness records and reports long ago.” Doc. 60 at PageID 329.
Specifically, Plaintiff’s counsel argues that “reports” from the experts were among either
the “nine physical binders worth of records” produced by Plaintiff in discovery, or the “14,938
pages of medical records and reports” obtained by Defendants from Plaintiff’s medical providers.
Doc. 60 at PageID 330. As noted above, however, even assuming such information was otherwise
exchanged in discovery, such fact does not relieve Plaintiff’s counsel from making the required
expert disclosures and is insufficient to demonstrate harmlessness under Rule 37(c)(1). Accord
Cosby, 2018 WL 3233336, at *3 (holding that “Defendants’ access to the medical records does not
constitute harmlessness under Rule 37(c)(1)” because “[o]therwise, the requirement to provide a
disclosure . . . would be eviscerated”).
In the interest of justice, however, the Court felt compelled to review the information
exchanged in discovery that Plaintiff’s counsel represents has been “sitting in [Defendants’
counsels’] office” “for many months[.]” Doc. 60 at PageID 332. Unfortunately, Plaintiff’s counsel
did not specifically identify, reference, append, or otherwise allude to any of these reports in his
memorandum in opposition -- thus prompting the Court to request, sua sponte, that such
information be submitted to chambers for an in camera review. See doc. 60. Upon receiving such
information from Plaintiff’s counsel and reviewing it carefully, the undersigned finds it falls

7

woefully short of the information required to be disclosed under Rule 26(a)(2), and fails to show
that counsel’s untimely and insufficient disclosure was harmless.
The documents Plaintiff’s counsel describes as “all of the exert witness records and
reports” regarding Plaintiff’s identified experts (see doc. 60 at PageID 329) purportedly exchanged
during discovery are:
(1)

correspondence from Dr. May that appears to provide opinions relating to a
workers’ compensation claim filed by Plaintiff (i.e., statements that
Plaintiff’s condition is related to an injury sustained at work and that she
was temporarily and totally disabled for a period of time);

(2)

an independent medical examination (“IME”) report prepared by Dr.
Bernstein which, like the correspondence from Dr. May, includes opinions
directed to Plaintiff’s workers’ compensation claim (i.e., opinion as to
whether Plaintiff’s conditions have reached maximum medical
improvement);

(3)

medical records from the Ohio State Wexner Medical Center for treatment
provided by Dr. Matrka; and

(4)

a functional capacity evaluation prepared by Scott Secrest -- an
occupational therapist not even identified on Plaintiff’s untimely expert
disclosure filed with the Court.

Notably absent from the documents produced by counsel for in camera review is any information
concerning Drs. Gillen, Carter, Akhter, and Wright -- making counsel’s statement regarding “all
of the expert witness records and reports” disingenuous at best, if not an outright misrepresentation
to this United States District Court. As a result, Plaintiff’s counsel fails to make any showing -or even attempts to make a showing -- regarding harmlessness under Rule 37(c)(1) as it relates to
Drs. Gillen, Carter, Akhter and Wright. Therefore, any expert testimony by them must be excluded
by the plain terms of Fed. R. Civ. P. 37(c)(1).

8

The records related to Drs. May6 and Bernstein do not comply with Rule 26(a)(2)(B), in
that such records omit much, if not all, of the information required by that rule. Insofar as
Plaintiff’s counsel may argue that these doctors were not retained or specially employed as an
expert witness -- an argument not specifically advanced in the memorandum in opposition -- such
records, which appear to have been prepared in furtherance Plaintiff’s workers’ compensation
proceedings, also fail to satisfy counsel’s disclosure requirements under Rule 26(a)(2)(C). Again,
“simply identifying a witness . . . and/or producing medical records does not meet the disclosure
requirements of Rule 26(a)(2)(C).” Gleed, 2016 WL 1451532, at *4. Further, Defendants (and
the Court) are left to speculate as to the opinions to be provided by Drs. May and Bernstein,
especially since the documents exchanged in discovery appear related to workers’ compensation
issues, issues that may or may not entirely translate to those involved in this product liability
personal injury case. Cf. Little Hocking Water Ass’n, Inc., 2015 WL 1105840, at *9 (holding that
the opinions summarized in a Rule 26(a)(2)(C) disclosure “must state a view or judgment
regarding a matter that affects the outcome of the case”).
The records submitted in camera related to Dr. Matrka are just that -- medical records -not, inter alia, a report or summary of opinions as required by either Rule 26(a)(2)(B) or (C). With
regard to the functional capacity assessment authored by occupational therapist Scott Secrest, not
much need be said beyond simply noting that Mr. Secrest is not even identified on the untimely
expert witness disclosure prepared by Plaintiff’s counsel and filed in this case. See doc. 57.
Based on all of the foregoing, the undersigned finds Plaintiff’s counsel fails to meet his
burden of showing that his non-compliance with Rule 26(a)(2) was “substantially justified” or

6

The undersigned notes that at least half of the correspondence from Dr. May’s practice was not
even correspondence written by him. Instead, the packet of correspondence reviewed in camera includes
letters signed by Physician’s Assistants Hilary McCord, Courtney Roland, and Krislyn McFarland -- none
of whom are identified in Plaintiff’s purported expert disclosure.
9

“harmless.” There can be little doubt regarding the harmfulness of Plaintiff’s late and incomplete
disclosure. Pursuant to the Court’s Preliminary Pretrial Conference Order, Defendants are to make
their expert disclosures in just two days, i.e., on September 28, 2018. Doc. 39 at PageID 243.
Absent a sufficient Rule 26(a)(2) disclosure by Plaintiff’s counsel, Defendants cannot timely
provide reports from their experts to counter the unknown opinions of Plaintiff’s experts and the
unknown basis upon which the opinions of such experts rely.
Giving Plaintiff’s counsel another opportunity to make complete expert disclosures would
wholly “disrupt the orderly flow of litigation[,]” thus further harming Defendants. Kassim, supra
fn. 2, 320 F.R.D. at 454. It is not clear how long it would take for preparation of appropriate
disclosures and when those disclosures could be submitted. In fact, Plaintiff’s counsel has not
requested an extension of time to make appropriate disclosures, except as to Mr. Lee (doc. 60 at
PageID 332), and the Court had to issue a Show Cause Order in this instance to motivate Plaintiff’s
counsel to even file a memorandum in opposition to Defendants’ motion to strike and exclude
experts. Accordingly, Defendants’ motion is well-taken and must be granted.
III.
The Court understands the significant impact this decision will have on Plaintiff’s case.
Plaintiff’s counsel’s inadequate expert disclosures under Rule 26(a)(2), however, places the
undersigned in the position of having no choice but to prevent Plaintiff’s use of all experts but
Nathaniel Lee in this case. See Rule 37(c)(1) (stating that “[i]f a party fails to provide information
or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial”). Unfortunately,
“clients must be held accountable for the acts and omissions of their attorneys[,]” who they freely
select to represent them. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,

10

396 (1993). Courts must be mindful to not excuse counsel’s failures that disrupt the orderly flow
of litigation merely because “counsel’s unexcused conduct imposes an unjust penalty on the
client.” Id.
Thus, it being undisputed that Plaintiff’s counsel failed to comply with Rule 26(a)(2) and,
further, Plaintiff’s counsel having failed to show harmlessness or substantial justification under
Rule 37(c)(1), the undersigned ORDERS that:
(1)

Defendants’ motion to strike and exclude experts (doc. 58) is GRANTED;

(2)

Plaintiff’s expert disclosure (doc. 57) is STRICKEN with regard to John
B. Gillen, M.D.; Sue Carter, M.D.; Faiq Akhter, M.D.; David O. Wright,
M.D.; Charles D. May, D.O.; Laura Matrka, M.D.; James Voice &
Swallowing; and Jonathan Bernstein, M.D.;

(3)

John B. Gillen, M.D.; Sue Carter, M.D.; Faiq Akhter, M.D.; David O.
Wright, M.D.; Charles D. May, D.O.; Laura Matrka, M.D.; James Voice &
Swallowing; and Jonathan Bernstein, M.D. are EXCLUDED from
providing expert opinion testimony in this case. See Kassim, 320 F.R.D. at
455; and

(4)

Following consultation by counsel for all sides, Plaintiff’s counsel shall
promptly file a motion to amend the calendar -- setting forth a proposed
agreed upon date for the production of an expert report by Mr. Lee.

In addition, the undersigned ORDERS Plaintiff’s counsel to SHOW CAUSE, in writing and
within seven (7) days from the entry of this Order, as to why further sanctions should not issue
under Rule 37(c)(1) or for the apparent misrepresentations made by counsel in his memorandum
in opposition regarding the availability of reports as to the untimely and inadequately disclosed
experts. Defendants may file a response to counsel’s show cause filing within seven (7) days from
the filing of such response.
IT IS SO ORDERED.
Date:

September 26, 2018

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
11