Casillas et al v. Triple S Vida et al

Filing 40

MEMORANDUM AND ORDER: Granting 19 "Motion to Quash." The motion to quash the summary judgment request at Docket No. 25 is DENIED. Nevertheless, insofar as the motion at Docket No. 21 is predicated at least in part on t he excluded report, it is DENIED WITHOUT PREJUDICE. The motion may be refiled not later than July 25, 2018, as filed, without any reference in its text or supporting materials to the quashed rebuttal report. Signed by Judge Pedro A. Delgado-Hernandez on 7/11/2018. (LMR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DAVID CASILLAS, et al.,
Plaintiffs,
v.
CIVIL NO. 16- 2564 (PAD)
TRIPLE-S VIDA, INC., et al.,
Defendants.

MEMORANDUM AND ORDER
Delgado-Hernández, District Judge.
Plaintiffs David Casillas, his wife, April Casillas, and their conjugal partnership initiated
this action against Triple-S Vida (“Triple-S”), claiming to have suffered damages as a result of
Triple-S’s breach of the terms of the long-term disability policy David had with Triple-S (Docket
No. 1). Before the court are plaintiffs’ “Motion to Quash Defendant’s Lately Notified Response
to Independent Medical Re-Evaluations Report Issued by Dr. Carlos Grovas” (Docket No. 19) and
“Motion to Quash Defendant’s Motion for Summary Judgment Because of Unauthorized Use of
Lately Notified Response to Independent Medical Re-Evaluation Report Issued by Dr. Carlos
Grovas” (Docket No. 25). Triple-S opposed both motions (Docket No. 29). Plaintiffs replied
(Docket No. 30), and Triple-S surreplied (Docket No. 34). For the reasons stated below, plaintiffs’
motion to quash report is GRANTED, and the motion to quash the summary judgment request is
DENIED.
I.

BACKGROUND

On February 9, 2017, the court issued a Case Management Order (“CMO”), setting August
7, 2017, as the discovery cutoff date, and September 8, 2017, as the deadline to move for summary

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judgment (Docket No. 10). As part of the discovery, Triple-S’s expert, Dr. Dwight Santiago,
conducted an Independent Medical Evaluation (“IME”) of plaintiff, notifying his expert report on
October 11, 2017 (Docket No. 15 at ¶ 4). On October 17, 2017, Triple-S requested a 30-day
extension of the deadlines to conclude discovery and file motions for summary judgment, pointing
out that Dr. Santiago had become ill, and his sickness delayed the preparation of the report (Docket
No. 11). Although the request for extension was filed after the discovery deadline expired, the
court granted the motion, extending discovery until November 20, 2017, and the deadline to file
motions for summary judgment until December 21, 2017 (Docket No. 14).
On December 4, 2017, following the lapse of the extended discovery deadline, plaintiffs
moved for an extension to conclude expert discovery and file motions for summary judgment
(Docket No. 15). They reiterated that Dr. Santiago had notified his expert report on October 11,
2017, which prompted the immediate scheduling of a second IME by their expert, Dr. Carlos
Grovas-Badrena, which was going to take place the same day the motion was filed.

Id.

Furthermore, the parties wished to conduct expert depositions once Dr. Grovas issued the updated
medical report. Id. The court granted the requested extension; extended the expert discovery
cutoff date to January 19, 2018; authorized filing of motions for summary judgment up to February
19, 2018; and warned the parties that it was not inclined to grant additional extensions of time
considering that the CMO had been modified three times (Docket No. 16).
On February 16, 2016, Triple-S asked for an extension to move for summary judgment
(Docket No. 17), which the court granted until February 20, 2018 (Docket No. 18). The day before
the deadline, February 19, 2018, Triple-S notified plaintiffs of Dr. Santiago’s “Response to
Independent Medical Re-Evaluation Report by Dr. Carlos Grovas” (Docket Nos. 19, p. 4; 29, p.
1); and on February 20, 2018, moved for summary judgment (Docket No. 21). The same day,

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Civil No. 16-2564 (PAD)
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plaintiffs moved to quash Triple-S’s expert’s response to Dr. Carlos Grovas’s IME, claiming that
(i) it was notified the last day for expert discovery, and was thus untimely; (ii) Triple-S never
reserved the right or announced any intentions to produce an amended expert report following Dr.
Grovas’s evaluation; and (iii) the untimely production of the report precluded plaintiffs from
properly responding to the same and undertaking any test, examination or discovery necessary to
counteract the effects of Dr. Santiago’s response (Docket No. 19). Additionally, they asked that
Triple-S’s motion for summary judgment be quashed because it is based on the untimely report
(Docket No. 25). Triple-S opposed, alleging, in essence, that Dr. Santiago’s response does not
constitute discovery, for it does not amend its report or prior conclusion, but serves to reaffirm
them (Docket No. 29).
II.

DISCUSSION

At the outset of his response to Dr. Grovas’ IME, Dr. Santiago declared his intention to
respond directly to the opinions and conclusions of Dr. Grovas, specifically those in which Dr.
Grovas disagreed with him. Under Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure,
an expert report qualifies as a rebuttal report if it is “intended solely to contradict or rebut evidence
on the same subject matter identified by the other party” and disclosure of such report must be
made within 30 days after the other party’s expert report disclosure. See, Fed. R. Civ. P.
26(a)(2)(D)(ii). And Dr. Santiago’s “response” falls squarely within the scope of proper rebuttal.
In particular, it engages in a point-by-point rebuttal of Dr. Grovas’ December 4 IME, analyzes
medical records that had not been previously mentioned in his original IME report, and includes
additional literature to support his own conclusions opposing those of Dr. Santiago’s. Thus,
despite Triple-S’s attempt to characterize it otherwise, Dr. Santiago’s “response” is, in substance
and effect, a rebuttal report.

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Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure states that a party must provide
its expert disclosures at the time and in the sequence that the court orders; and that absent a
stipulation or a court order, the disclosures must be made: (i) at least 90 days before the date set
for trial or for the case to be ready for trial; or (ii) if the evidence is intended solely to contradict
or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or
(C), within 30 days after the other party’s disclosure. See, Fed. R. Civ. P. 26(a)(2)(D). These
provisions are enforced through Rule 37(c)(1), according to which:
[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, unless the failure was substantially justified or is
harmless.
Fed.R.Civ.P. 37(c)(1). The baseline for non-compliance is mandatory preclusion unless the record
shows substantial justification or harmlessness. See, Lohnes v. Level 3 Communications, 272 F.3d
49, 59-60 (1st Cir. 2001)(discussing issue). The party seeking to avoid preclusion bears the burden
of showing that its failure to comply satisfies those criteria. See, Wilson v. Bradlees of New
England, Inc., 250 F.3d 10, 21 (1st Cir. 2001)(applying test).
Triple-S had the obligation to timely disclose the rebuttal report in strict compliance with
Rule 26, within the discovery deadline that the court set. Instead, it notified the rebuttal report on
February 19, a month after the expert discovery deadline had expired, one before motions for
summary judgment were due. The failure to comply with the deadline was neither substantially
justified nor harmless. It compromised plaintiff’s ability to carry out complete expert discovery
or undertake any action necessary to counteract the effects of the untimely report.
Little does it matter that Dr. Santiago’s factual conclusion remained unchanged. What
matters is that it used evidence not considered in his initial IME Report to sustain his conclusion

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and to contradict the other party’s expert report. And given that Rule 37(c)’s “substantially
justified or harmless” escape hatch does not apply, Triple-S’s untimely disclosure warrants
exclusion of Dr. Santiago’s rebuttal report. See, Lohnes, 272 F.3d at 59-61 (disregarding belatedly
proffered expert affidavit); Berio-Ramos v. Flores-Garcia, 2016 WL 268804 (D.P.R. March 7,
2016)(exclusion warranted under Rule 37 after plaintiff failed to disclose expert witness material
as required by Rule 26). The preclusion, however, does not reach the motion for summary
judgment, which was filed within the deadline.
III.

CONCLUSION

Considering the totality of circumstances, untimeliness was neither justified nor harmless.
Therefore, plaintiffs’ motions to quash Triple-S’s untimely discovery response at Docket No. 19
is GRANTED. The motion to quash the summary judgment request at Docket No. 25 is DENIED.
Nevertheless, insofar as the motion at Docket No. 21 is predicated at least in part on the excluded
report, it is DENIED WITHOUT PREJUDICE. The motion may be refiled not later than July 25,
2018, as filed, without reference in its text or supporting materials to the quashed rebuttal report.
SO ORDERED.
In San Juan, Puerto Rico, this 11th day of July, 2018.
s/Pedro A. Delgado-Hernández
PEDRO A. DELGADO-HERNÁNDEZ
United States District Judge