Nissen et al v. Johnson
Filing
63
ORDER denying 52 Motion to Strike. Signed by Chief Judge Karen E. Schreier on 10/20/2011. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
BRENDA J. NISSEN, and
THOMAS NISSEN,
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Plaintiffs,
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vs.
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MATTHEW R. JOHNSON, M.D., M.P.H., )
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Defendant.
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CIV. 09-4166-KES
ORDER DENYING PLAINTIFFS’
MOTION TO STRIKE DEFENDANT’S
SUPPLEMENTAL AND SECOND
SUPPLEMENTAL DISCLOSURE OF
EXPERT WITNESSES
Plaintiffs, Brenda J. Nissen and Thomas Nissen, move to strike defendant’s,
Dr. Matthew R. Johnson, M.D., M.P.H., supplemental and second supplemental
disclosures of his expert witnesses’ reports. Docket 52. Pursuant to Nissens’
request, the court ordered expedited briefing on the motion. Docket 53.
BACKGROUND
The pertinent facts to this order are as follows: Nissens brought a medical
malpractice suit against Dr. Johnson after Brenda developed severe pain and
numbness in her right arm after Dr. Johnson performed surgery on Brenda on
February 7, 2008. The parties and their experts dispute what caused Brenda’s
injury.
The court’s scheduling order provided that expert reports were due by
December 13, 2010, all discovery, including expert discovery, would be complete
by May 16, 2011, and that any supplementations to expert reports “under Rule
26(e) shall be due twenty days prior to trial.” Docket 15.
Nissens admit that Dr. Johnson timely provided them with copies of his
initial expert reports. Docket 52. On September 23, 2011, Nissens received
Dr. Johnson’s supplemental and second supplemental disclosures of expert
witnesses.
DISCUSSION
Dr. Johnson argues that the court should strike Nissens’ motion because
they failed to provide a brief in support as required by the local rules. Nissens
filed a brief in response to Dr. Johnson’s opposition. Docket 60-1. The local rules
require parties to attach a written brief with every motion. D.S.D. Civ. LR 7.1(B).
While parties should timely comply with the local rules without prompting,
striking a motion on a technicality this close to trial would work an injustice.
Dr. Johnson also argues that it is unclear what testimony or reports
Nissens want to strike. Nissens attached to their motion to strike Dr. Johnson’s
“Supplemental Disclosures of Expert Witnesses Pursuant to F.R.C.P.
26(a)(2)(B)” and “Defendant’s Second Supplemental Disclosures of Expert
Witnesses Pursuant to F.R.C.P. 26(a)(2)(B).” Dockets 52-5, 52-6. These reports
will hereinafter be referred to collectively as the September reports. Nissens
move to strike these September reports, which impliedly means that they
request that the experts be precluded from testifying regarding the matters
newly disclosed in the September reports. It is sufficiently clear that Nissens
are requesting that the court strike Dr. Richard Fessler’s, Dr. Daniel Riew’s,
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Dr. David Kispert’s, and Dr. Matthew Howard’s September reports and their
opinions that had not previously been disclosed.
Dr. Johnson contends that because he has not violated the court’s
scheduling order, the motion to strike should be denied. In conducting
discovery, parties are required to comply with the court’s scheduling order.
Fed. R. Civ. P. 26(a)(2)(D). A district court “ ‘may exclude from evidence at trial
any matter which was not properly disclosed in compliance with the Court’s
pretrial order.’ ” Life Plus Int’l v. Brown, 317 F.3d 799, 803 (8th Cir. 2003)
(quoting Dabney v. Montgomery Ward & Co., 692 F.2d 49, 51 (8th Cir. 1982)).
The scheduling order states that, pursuant to Rule 26(e), supplemental
expert disclosures must be made 20 days prior to trial. Trial is currently
scheduled for November 14, 2011, and Nissens received Dr. Johnson’s
September reports on September 23, 2011. While Dr. Johnson’s September
reports were disclosed within the scheduling order’s time frame for
supplemental reports, that does not automatically mean that the reports are in
fact supplemental reports under Rule 26(e).
Rule 26(e) requires a party to supplement an expert report to include
information later acquired if the initial disclosure is incomplete or incorrect.
Fed. R. Civ. P. 26(e)(1)(A); see also Minebea Co. v. Papst, 231 F.R.D. 3, 6 (D.D.C.
2005) (“Rule 26(e) only permits supplemental reports for the narrow purpose of
correcting inaccuracies or adding information that was not available at the time
of the initial report.”). The purpose of a supplemental report is to “inform the
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opposing party of any changes or alterations,” Tenbarge v. Ames Taping Tool
Sys., Inc., 190 F.3d 862, 865 (8th Cir. 1999), not “to provide an extension of
the deadline by which a party must deliver the lion's share of its expert
information.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546,
571 (5th Cir. 1996). If a report “does not correct inaccuracies or add
information that was unavailable to [the expert] at the time of the initial
report,” then the report is “more like a rebuttal report offered solely to
contradict or rebut expert testimony offered by” the other party. Sancom, Inc. v.
Qwest Commc’ns Corp., 683 F. Supp. 2d 1043, 1063 (D.S.D. 2010) (discussing
Fed. R. Civ. P. 26(a)(2)(C)(ii)).1
Nissens submitted a supplemental brief in response to Dr. Johnson’s
resistance to their motion to strike detailing the differences between
Dr. Johnson’s experts’ initial and September reports. Docket 61. The court has
reviewed the brief’s comparisons between the initial and September reports and
independently reviewed Dr. Johnson’s September reports for Dr. Fessler,
Dr. Riew, Dr. Kispert, and Dr. Howard and compared them to these experts’
initial reports.
Dr. Johnson’s September reports contain numerous new opinions. For
example, the initial reports conclude that Brenda’s injury was caused by a
1
Pursuant to Rule 26(a)(2)(D)(ii), defendant's rebuttal reports were due
30 days after the disclosure of plaintiffs' expert witness disclosures. According
to the scheduling order, this would have been by November 12, 2010. Docket
15.
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vascular event.2 The September reports contain new opinions on what caused
the vascular injury leading to Brenda’s permanent right arm injury.3 The
September reports also discuss other issues that were not contained in the
initial reports, including the efficacy of the procedure that Dr. Johnson used on
Brenda, the METRx tubular retractor system, and opinions concerning whether
Dr. Johnson’s tools could have penetrated Brenda’s spinal cord. See Docket 61.
While the experts’ initial disclosures contained an outline of the experts’
opinions, the lion’s share of their opinions, which are new opinions, are
contained in the September reports.
Dr. Johnson does not argue that any of the September reports correct
inaccuracies contained in the initial reports. He also does not contend that the
2
Docket 52-2 at 2 (“In Dr. Riew’s opinion, the signal change on the right
side of the spinal cord was more likely than not caused by a vascular event and
less likely caused from surgical trauma.”); Docket 52-3 at 1 (“In Dr. Kispert’s
opinion, it is more probable than not that the signal change . . . was caused by
a spinal cord infarct.”); Docket 52-4 at 2-3 (“In Dr. Howard’s opinion, the cause
of this spinal cord signal change is unknown, but possible etiologies would
include a vascular event, inflammatory response of the patient, or some type of
demyelinating processes.”); Docket 52-1 at 3 (“In Dr. Fessler’s opinion, the
signal change on the right side of the spinal cord was more likely than not
caused by a vascular event.”).
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Docket 52-5 at 2 (“In Dr. Fessler’s opinion, Mrs. Nissen experienced an
interruption in the blood supply to an area of her spinal cord at or about the
time of the surgical procedure . . . contributing factors include: fluctuations in
Mrs. Nissen’s blood pressure during the surgery; movement or occlusion of her
right posterior spinal artery . . . ; the development of a blood clot; . . . or the
inflammation, bleeding, and/or swelling that is an unavoidable component of
undergoing surgery.”); Docket 52-6 at 8-9 (containing a similar explanation by
Dr. Howard); Docket 52-6 at 3 (containing a similar explanation by Dr. Riew);
Docket 52-5 at 7-8 (containing a similar, but less extensive, explanation by
Dr. Kispert).
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September reports are offered for the purpose of adding new information that
was not available at the time of the initial reports. All four experts reviewed
Brenda’s medical files before they authored their initial reports. See Dockets
52-1 at 3-4 (stating that Dr. Fessler reviewed Brenda’s medical records); 52-2 at
3 (stating that Dr. Riew reviewed Brenda’s medical records); 52-3 at 1 (stating
that Dr. Kispert reviewed Brenda’s MRI scans); 52-4 at 3 (stating that
Dr. Howard reviewed Brenda’s medical records). The record reflects that
Dr. Johnson deposed all of Nissens’ experts prior to the deadline imposed by
the court on Dr. Johnson for disclosure of his expert reports. Because
Dr. Johnson has not shown that the September reports correct inaccuracies or
add information that was not available at the time of the experts’ initial reports,
the reports are not supplemental reports under Rule 26(e).
Dr. Johnson, citing Thompson v. Doane Pet Care Co., 470 F.3d 1201 (6th
Cir. 2006), contends that his experts’ opinions are not new opinions because the
“experts merely expounded on the opinions that they had previously disclosed,
which is not prohibited under Rule 26.” Docket 55 at 3. In Thompson, the Sixth
Circuit reasoned that Rule 26(a)(2)(B) “does not limit an expert’s testimony
simply to reading his report . . . . The rule contemplates that the expert will
supplement, elaborate upon, explain and subject himself to cross-examination
upon his report.” 470 F.3d at 1203 (emphasis added). Thompson is not persuasive
because it addresses an expert’s testimony, not an expert’s supplemental report.
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The expert reports are not supplemental reports under Rule 26(e), and
therefore, they are untimely because they were disclosed ten months after the
deadline for disclosure of expert reports. Id. “Untimely disclosure of an expert
opinion triggers Rule 37(c)(1) sanctions, including the exclusion at trial of
testimony on undisclosed opinions, unless ‘the failure was substantially justified
or is harmless.’ ” Id. (quoting Fed. R. Civ. P. 37(c)(1)).
The court considers four factors in determining whether exclusion is a
proper sanction for an untimely expert report: (1) the excluded material's
importance; (2) the party's explanation for failing to comply with the discovery
rules; (3) potential prejudice if the evidence were to be used at trial; and (4) the
availability of a continuance to cure any prejudice. Citizens Bank of Batesville,
Ark. v. Ford Motor Co., 16 F.3d 965, 967 (8th Cir. 1994) (applying the test to
excluding witnesses at trial); see also Sancom, 683 F. Supp. 2d at 1063 (applying
this test to exclude an expert's supplemental report). The district court has great
discretion to strike expert testimony that is disclosed in contravention of the
court's scheduling order. See Anderson v. Raymond Corp., 340 F.3d 520, 523 (8th
Cir. 2003) (“ ‘Decisions concerning the admission of expert testimony lie within
the broad discretion of the trial court, and these decisions will not be disturbed
on appeal absent an abuse of that discretion.’ ” (quoting Peitzmeier v. Hennessy
Indus., Inc., 97 F.3d 293, 296 (8th Cir. 1996))).
Under the first factor, the material’s importance, Dr. Johnson does not
argue that the untimely reports are material for him to adequately defend his
case. While all of the September reports provide expanded explanations for
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Brenda’s injury, they do not change Dr. Johnson’s basic theory for Brenda’s
injury, namely that a vascular event caused her injury. Regarding the second
factor, Dr. Johnson offers no explanation for failing to comply with the discovery
rules. The untimely reports are not based on any new information except for
Brenda’s updated medical records from her physician who treats her pain
symptoms. The first and second factors weigh in favor of finding that the
untimely reports are not substantially justified.
Under the third factor, the court evaluates what prejudice Nissens will
experience if the untimely reports are admitted. Nissens argue that “[t]hese new
supplemental opinions were foreseeable and should have been disclosed.
Plaintiffs’ experts do not have sufficient amount of time prior to the start of the
trial to review Defendant’s supplemental opinions and to respond and to
prepare their own supplemental opinion reports.” Docket 52 at 2. As an
example of prejudice, Nissens state that they “are going to have to refocus their
case, devise new exhibits and prepare for the defense experts cross
examinations in a totally different manner . . . .” Docket 60-1 at 2. Nissens’
experts will also have to explain their lack of response to the supplemental
reports: “Plaintiffs’ experts will have to defend against the charge that they did
not have written reports responding to the defense supplements and the
defense will have the advantage to put their expert reports into evidence and
the Plaintiffs won’t have a written exhibit in response.” Docket 60-1 at 2.
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The prejudice articulated by Nissens is minimal. They have scheduled
the depositions of their experts for use at trial on October 24, 2011,
October 25, 2011, and November 2, 2011. Because these depositions were not
scheduled to commence until four weeks after Nissens received the September
reports, Nissens have had adequate time to provide the reports to their experts
and have them address any new expert opinions in their deposition testimony.
Under the circumstances of this late disclosure, the court will waive the
requirement for rebuttal reports under Rule 26(a)(2)(D)(ii) and allow Nissens’
experts to testify, without preparing a report in advance, in rebuttal to the new
opinions set forth in the September reports. Furthermore, Nissens will not be
prejudiced because of their failure to have a written rebuttal report to respond
to the September reports because neither side’s reports will be admitted into
evidence. Such reports are cumulative and not admissible. Thus, factor three
weighs in favor of denying the motion to strike.
The fourth factor examines whether the prejudice can be cured with a
continuance. This case has been pending since November 16, 2009, and trial is
scheduled for November 14, 2011. Neither party has asked for a continuance,
but a continuance is available if requested. Factor four weighs in favor of
denying the motion to strike.
After weighing all of the factors, the court finds that Nissens have not
shown prejudice. Thus, Nissens’ motion to strike is denied.
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CONCLUSION
Nissens move to strike Dr. Johnson’s supplemental and second
supplemental disclosure of expert witnesses. Because the supplemental expert
reports did not correct an inaccuracy in the initial reports and were not based
on information that was unavailable to the experts when they wrote their initial
reports, the disclosures are not supplemental reports under Rule 26(e).
Because Nissens have not shown prejudice, however, the court will not impose
sanctions. Accordingly, it is
ORDERED that plaintiffs’ motion to strike defendant’s supplemental and
second supplemental expert disclosures (Docket 52) is denied.
Dated October 20, 2011.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
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