Devereux et al v. Knox County, Tennessee, et al (JRG1)
Filing
135
MEMORANDUM OPINION AND ORDER: Plaintiffs fail to satisfy their burden of showing that Judge Guyton clearly erred or acted contrary to law. Plaintiffs' objections [Doc. 130 ] are therefore OVERRULED, and Judge Guyton's report and recommendation [Doc. 127] is ACCEPTED IN WHOLE. Defendants' Renewed Motion to Strike and Exclude Dr. Gaines' Opinions [Doc. 99 ] is GRANTED. Signed by District Judge J Ronnie Greer on 09/11/2019. (AMP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
BRIAN B. DEVEREUX and RENEE
DEVEREUX,
Plaintiffs,
v.
KNOX COUNTY, TENNESSEE, PAUL
MOBLEY, SHAKER NASSER, HANNA FRYE,
and GREG MOORE,
Defendants.
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No. 3:17-CV-00197-JRG-HBG
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Objections and Renewed Motion to Strike
and Exclude Dr. Gaines’ Expert Opinions [Doc. 99], Chief United States Magistrate Judge H.
Bruce Guyton’s Report and Recommendation [Doc. 127], Plaintiffs’ Objections to the Report and
Recommendation [Doc. 130], and Defendants’ Response to Plaintiffs’ Objections to Report and
Recommendation [Doc. 131]. For the reasons herein, the Court will overrule Plaintiffs’ objections
and grant Defendants’ motion.
I.
BACKGROUND
On May 15, 2018, Plaintiffs served their disclosure of expert testimony under Federal
Rule of Civil Procedure 26(a)(2), listing various medical providers, including Dr. Gaines. [Pls.’
Expert Disclosure, Doc. 67-5, at 5]. Plaintiffs’ disclosure as to Dr. Gaines states:
Dr. Gaines is Mr. Devereaux’s [sic] treating neurologist. Dr. Gaines has not
been retained or specifically employed to provide expert testimony in this case.
However, Dr. Gaines is expected to present evidence under Federal Rule of
Evidence 702, 703, or 705 concerning the identity, history, nature, scope, treatment,
and prognosis of Plaintiff’s neurological disorders stemming from the stroke and
events giving rise to this action. The facts and opinions to which Dr. Gaines is
expected to testify include diagnosis, cause, and treatment, as well as the opinions
of other health care providers with which he consulted.
[Id. at 5]. After receiving Plaintiffs’ disclosure, Defendants moved to exclude Dr. Gaines from
testifying as an expert, contending that the disclosure violated Rule 26(a)(2)(B). [Defs.’ Mot.
Exclude, Doc. 67]. On November 13, 2018, Judge Guyton determined that the disclosure—as it
pertained to Dr. Gaines—was “wholly inadequate” under Rule 26(a)(2)(B) because it “fail[ed] to
include any summary of facts and opinions and simply constitutes a statement of the topics.” [J.
Guyton’s Mem. Op., Doc. 91, at 10–11]. Judge Guyton, however, concluded that Plaintiffs’
transgressions under Rule 26(a)(2)(B) were harmless, and he therefore declined to exclude Dr.
Gaines’s testimony and allowed Plaintiffs to take corrective action by filing a supplemental
disclosure containing the information that was missing under Rule 26(a)(2)(B). [Id. at 15].
A few days later, Plaintiffs filed their supplemental disclosure, which consisted of a
declaration from Dr. Gaines; a copy of Dr. Gaines’ curriculum vitae, which includes a list of his
publications; a list of all other cases in which Dr. Gaines participated as an expert witness; and a
statement of compensation. [Pls.’ Suppl. Disclosure, Doc. 92, at 1]. In the declaration, Dr. Gaines
states:
I was asked to evaluate Brian Devereaux [sic] as a treating and evaluating
physician in my Vanderbilt Clinic Office on September 2, 2016 with subsequent
visits on November 11, 2016, January 13, 2017, May 5, 2017, September 15, 2017,
and February 9, 2018. . . . My notes from those visits as well as the autonomic and
neuropsychological evaluations performed under my direction in addition to his
records from the University of Tennessee Hospital and his Primary Care Physician
are the source documents that I have reviewed and relied upon in providing my
opinions in this case which are offered to a reasonable degree of medical certainty.
....
The initial history was obtained from the patient and his wife and extensive
medical records were reviewed. They reported an incarceration for June 3, 2016 at
the Knox County Jail in Knoxville. Early in that incarceration he suffered a major
neurological change with decrease in level of consciousness. It was not until some
2
5 hours later that he was taken to the University of Tennessee Hospital in Knoxville.
Initially it was unclear the nature of his diagnosis. He was subsequently found to
have a cerebral infarction. Upon review of his radiological studies it was clear that
he had in fact suffered a brainstem and cerebellar infarction.
....
It is my opinion to a reasonable degree of medical certainty that Mr.
Devereux suffered a cerebral infarction while incarcerated in Knox County jail in
Knoxville at approximately 1700 on June 3, 2016. Because of the failure of
personnel at that jail facility to recognize his stroke symptoms, he was not
transported in a timely manner that would have allowed him the opportunity to
receive appropriate therapy such as tissue plasminogen activator.
[Dr. Gaines’ Decl., Doc. 92-1, ¶¶ 4, 6, 7].
Defendants maintained that Dr. Gaines’ supplemental disclosure—namely, Dr. Gaines’
declaration—was insufficient under Rule 26(a)(2)(B). See [Order, Doc. 94]. Judge Guyton
however, rejected their argument, determining that “Dr. Gaines’s disclosure is sufficient under
Rule 26(a)(2)(B).” [Id.]. Defendants then objected to Judge Guyton’s decision and renewed their
motion to exclude Dr. Gaines’ testimony. [Defs.’ Objs. & Renewed Mot., Doc. 99]. In raising
their objections, Defendants argued that “Plaintiffs should have been required to comply with
Rule 26(a)(2)(B)(i)–(iii)” in light of Judge Guyton’s “earlier . . . conclu[sion] that Dr. Gaines’
Declaration was . . . . insufficient.” [Id. at 12]. To support this argument, Defendants claimed
that Plaintiffs did not show that their violation of Rule 26(a)(2)(B) was harmless. [Id. at 8–13].
As for their renewed motion, Defendants contended that Dr. Gaines’ supplemental
disclosure violated Rule 26(a)(2)(B)(ii)–(iii) because Dr. Gaines, during his deposition, revealed
for the first time that he had relied on a CT scan to form his opinion that Mr. Devereux suffered
a stroke on June 3, 2016, at 1700 hours, while incarcerated in the Knox County Jail. [Id. at 9–10];
see [Dr. Gaines’ Dep., Doc. 100-1, at 21:14–22]. According to Defendants, the absence of any
3
mention of the CT scan in Dr. Gaines’ declaration renders it deficient under Rule 26(a)(2)(B)(ii)–
(iii). [Defs.’ Objs. & Renewed Mot. at 12].
This Court sustained Defendants’ objections to Judge Guyton’s memorandum opinion
and order from November 13, 2018, finding clear error because Plaintiffs had not been held to
their burden to show that their violation of Rule 26(a)(2)(B) was harmless. [Mem. Op. & Order,
Doc. 120, at 4–7]. The Court did not address the propriety of Judge Guyton’s determination that
Plaintiffs’ initial disclosure was insufficient under Rule 26(a)(2)(B). Instead, the Court, based on
Judge Guyton’s conclusion that the disclosure was insufficient, sustained Defendants’ objections
because Plaintiffs had been permitted to supplement the disclosure without first making a proper
showing of harmlessness under Federal Rule of Civil Procedure 37(c)(1). [Id.]. The Court then
referred Defendants’ renewed motion to Judge Guyton for a report and recommendation. [Id. at
7].
In considering Defendants’ renewed motion, Judge Guyton concluded that Dr. Gaines’
supplemental disclosure was insufficient under Rule 26(a)(2)(B)(i)–(iii). [R. & R., Doc. 127, at
18]. He reasoned that Dr. Gaines did not adequately express the “basis and reasons for [his]
opinion” that Mr. Devereux suffered a stroke on June 3, 2016, at 1700 hours, while in the
Knox County Jail. [Id. at 18–19]. Also, Judge Guyton declined to view Dr. Gaines’ insufficient
supplemental disclosure as harmless because Plaintiffs—as the party with the burden to show
harmlessness—never responded to Defendants’ renewed motion. [Id. at 19]. In sum, he
recommended that this Court, in response to Plaintiffs’ violation of Rule 26(a)(2)(B), grant
Defendants’ renewed motion and exclude Dr. Gaines’ testimony. [Id. at 26]. Plaintiffs timely
objected to Judge Guyton’s report and recommendation, and the Court, having carefully reviewed
their objections, is now prepared to rule on them.
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II.
STANDARD OF REVIEW
A federal magistrate judge has “broad discretion to regulate nondispositive matters.”
Diorio v. TMI Hosp., No. 4:15-cv-1710, 2017 WL 1399869, at *2 (N.D. Ohio Apr. 19, 2017)
(quotation omitted). When reviewing a magistrate judge’s recommendation on a non-dispositive
issue, the Court must accept it unless it is clearly erroneous or contrary to law. 28 U.S.C.
§ 636(b)(1)(A); Fed. R. Civ. P. 72(a). 1 This standard of review is “highly deferential” to the
magistrate judge’s decision-making authority, Diorio, 2017 WL 1399869 at *2 (quotation
omitted), and a magistrate judge’s recommendation is clearly erroneous or contrary to law only
if it “leaves the reviewing court with ‘a definite and firm conviction that a mistake has been
committed,’” Tri-Star Airlines, Inc. v. Willis Careen Corp. of L.A., 75 F. Supp. 2d 835, 839 (W.D.
Tenn. 1999) (quoting Heights Cmty. Congress v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir.
1985)). The Court may “modify or set aside any part of the order that is clearly erroneous or is
contrary to law.” Fed. R. Civ. P. 72(a).
III. ANALYSIS
Rule 26(a)(2)(b) contains various requirements for the disclosure of expert testimony, and
the rule, in full, states:
Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or
ordered by the court, this 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 as the party’s
employee regularly involve giving expert testimony. The report must contain:
(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;
1
Plaintiffs concede that clear error constitutes the appropriate standard of review. See [Pls.’ Objs. at 1–3].
5
(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.
These requirements are “mandatory,” and compliance with them has to be “absolute.” Roberts ex
rel. Johnson v Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003). Rule 37(c)(1) “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.” Id. (quotation and citation omitted); see Howe v. City
of Akron, 801 F.3d 718, 747 (6th Cir. 2015) (recognizing that a noncompliant party may avoid
sanctions under Rule 37(c)(1) only if “there is a reasonable explanation of why Rule 26 was not
complied with or the mistake was harmless” (quotation omitted)).
If a party violates Rule 26(a) by failing to disclose necessary information or a witness,
and that violation is not harmless or substantially justified, “the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial.” Fed. R. Civ. P.
37(c)(1). The party subject to potential sanctions has the burden to prove harmlessness or
substantial justification. Roberts, 325 F.3d at 782; Banerjee v. Univ. of Tenn., No. 3:17-CV-526HSM-HGB, 2019 WL 1532865, at *2 (E.D. Tenn. Apr. 9, 2019).
A. The Sufficiency of Dr. Gaines’ Supplemental Disclosure
Plaintiffs contend that Judge Guyton committed clear error in concluding that Dr. Gaines
did not properly explain the basis for his opinion that Mr. Devereux suffered a stroke on June 3,
2016, at 1700 hours, while in the Knox County Jail. [Pls.’ Objs. at 1]. According to Plaintiffs,
“[t]his is clearly erroneous[] because Dr. Gaines’s declaration clearly states that he relied on the
entire panoply of medical records from UT, which obviously included the CT Scans.” [Id.].
6
Plaintiffs also contend that Dr. Gaines is a treating physician and therefore Judge Guyton clearly
erred by applying Rule 26(a)(2)(B) rather than Rule 26(a)(2)(C), whose requirements are laxer
than Rule 26(a)(2)(B)’s. [Id.]. In response, Defendants discredit Plaintiffs’ arguments by noting
that they have not cited any case law to support them. [Defs.’ Resp. at 2]. Defendants also
maintain that Plaintiffs have waived many of their arguments because they never raised them
before Judge Guyton; instead they raise them before this Court for the first time. [Id. at 5, 9].
1. The Applicability of Rule 26(a)(2)(C)
The Court begins by emphasizing—as Judge Guyton did—the importance of Dr. Gaines’
testimony about the timing of the stroke. Dr. Gaines is Plaintiffs’ only expert witness, so his
testimony that Mr. Devereux suffered a stroke in the Knox County Jail is, by every appearance,
necessary to establish a violation under 42 U.S.C. § 1983—specifically, to establish that a delay
in medical treatment resulted in a constitutional violation. See Napier v. Madison County, 238
F.3d 739, 742 (6th Cir. 2001) (“[W]e adopt the holding . . . that ‘[a]n inmate who complains that
delay in medical treatment rose to a constitutional violation must place verifying medical
evidence in the record to establish the detrimental effect of the delay in medical treatment to
succeed.’” (quotation omitted)); see also Blackmore v. Kalamazoo County, 390 F.3d 890, 895
(6th Cir. 2004) (“Napier applies where . . . the prisoner’s affliction is seemingly minor or nonobvious. In such circumstances, medical proof is necessary to assess whether the delay caused a
serious medical injury.” (citation omitted)); cf. Burgess v. Fischer, 735 F.3d 462, 476–77 (6th Cir.
2013) (“Plaintiffs do not assert that [the] facial and head fractures were obvious to a lay person.
Indeed, the record suggests that these injuries were discovered only after CT scans were taken at
the hospital. [T]hese injuries thus were latent medical injuries, which require a showing that the
delay in treatment itself caused a serious medical injury.” (citation omitted)).
7
Despite the enormous importance of Dr. Gaines’ testimony to this case’s outcome—
again, his declaration is the sole source of verifying medical evidence in the record—Plaintiffs
never responded to Defendants’ renewed motion. So their view that Rule 26(a)(2)(C) “govern[s]
the analysis” is not an argument that Judge Guyton had the opportunity to consider when
recommending how this Court ought to rule on the renewed motion. [Pls.’ Objs. at 1]. Under
these circumstances, when a party objects to a report and recommendation by raising arguments
that he did not present to the magistrate judge, the Sixth Circuit has routinely declined to consider
those arguments. See AES-Apex Emp’r Servs., Inc. v. Rotondo, 924 F.3d 857, 867 (6th Cir. 2019)
(“[A] district court never abuses its discretion when it holds that an issue not actually presented
to a magistrate judge is forfeited.” (emphasis added) (citation omitted)); Murr v. United States,
200 F.3d 895, 902 n.1 (6th Cir. 2000) (“[A]bsent compelling reasons, [the Magistrate Judge Act]
does not allow parties to raise at the district court stage new arguments or issues that were not
presented to the magistrate. Hence, Petitioner’s failure to raise this claim before the magistrate
constitutes waiver.” (citations omitted)); see also Steele v. Jenkins, No. 17-4171, 2018 WL
2144073, at *4 (6th Cir. Mar. 5, 2018) (“But [the plaintiff] did not raise this claim in his petition;
rather, he presented it for the first time in his objections to the magistrate judge’s report and
recommendation. He therefore has waived review of this claim.” (citation omitted)); Becker v.
Clermont Cty. Prosecutor, 450 F. App’x 438, 439 (6th Cir. 2011) (“Although [the plaintiff]
requested the amount of $376,000,000, this request was not made until he filed objections to the
magistrate judge’s report and recommendation, and need not be considered by this court because
it was not first presented to the magistrate judge for consideration.” (citing Murr, 200 F.3d at 902
n.1)).
8
Plaintiffs offer this Court no reason, much less a compelling one, as to why it should
consider their newfound argument that Rule 26(a)(2)(C) governs the analysis of Dr. Gaines’
disclosure. In fact, the Court would be remiss if it did not mention that Judge Guyton long ago
specifically ruled, in his memorandum opinion and order from November 13, 2018, that Rule
26(a)(2)(B) and not Rule 26(a)(2)(C) applies to Dr. Gaines’ disclosure. [J. Guyton’s Mem. Op at
11–14]. Plaintiffs never objected to Judge Guyton’s determination that Rule 26(a)(2)(C) was not
germane, providing this Court with no occasion to disturb his opinion. The Court will therefore
adhere to precedent and summarily reject Plaintiffs’ postmortem argument as to the applicability
of Rule 26(a)(2)(C) to Dr. Gaines’ disclosure. AES-Apex Emp’r Servs., 924 F.3d at 867; Steele,
2018 WL 2144073 at *4; Becker, 450 F. App’x at 439; Murr, 200 F.3d at 902 n.1.
2. The Basis and Reasons for Dr. Gaines’ Conclusion
In contending that Dr. Gaines stated sufficient bases and reasons for his conclusion that
Mr. Devereux suffered a stroke on June 3, 2016, at 1700 hours, while in the Knox County Jail,
Plaintiffs highlight the fact that his disclosure “clearly states that he relied on the entire panoply
of medical records from UT, which obviously included the CT Scans.” [Pls.’ Objs. at 1]. In doing
so, Plaintiffs appear to argue that an expert’s reference to medical records in a disclosure is
sufficient to satisfy Rule 26(a)(2)(B)(i)–(iii). The Court, in addressing this argument, begins with
Defendants’ counterargument that Plaintiffs cite no legal authority to support their position.
Indeed, Plaintiffs cite not a single case anywhere in their roughly two-page objection to Judge
Guyton’s report and recommendation.
Several months ago, when the Court overruled Plaintiffs’ objections to Judge Guyton’s
order from September 15, 2018, it did so partly because they cited no case law to support
their cause. The Court, at that time, wrote that “[w]ithout some effort on the Devereuxs’ part to
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show—with developed legal argument—that Judge Guyton clearly erred or acted contrary to law,
the Court . . . cannot hold that his decision is anything but presumptively reasonable[.]” [Mem.
Op. & Order, Doc. 119, at 4]. The Court explained to Plaintiffs then—and it explains to them
here again—that the critical inquiry in determining whether a federal magistrate judge has
committed clear legal error is “whether case law does or does not support a magistrate judge’s
decision.” [Id. at 3–4 (citing Diorio, 2017 WL 1399869 at *2)].
The Court cannot possibly conclude that Judge Guyton clearly erred or acted contrary to
law without a showing on Plaintiffs’ part that his decision is in fact contrary to the case law that
governs Rule 26(a)(2)(B)—and the Court is under no obligation to conduct research on their
behalf. See Fairfield v. Wacha, No. 1:07-cv-948, 2008 WL 584940, at *2 (W.D. Mich. Feb. 28,
2008) (stating that a party’s failure to cite any case law rendered his “purported objection the
same as no objection at all” (citations omitted)); see also McPherson v. Kelsey, 125 F.3d 989,
995–96 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention
a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”
(quotation omitted)); E.D. Tenn. L.R. 7.1(b) (“Briefs shall include. . . [the] legal grounds which
justify the ruling sought from the Court.”).
Plaintiffs’ objection, without legal authority to back it, reads merely as a request for the
Court to substitute its own judgment for Judge Guyton’s, but the Court lacks license to disturb
Judge Guyton’s decision even if it disagrees with his assessment of Dr. Gaines’ disclosure. See
Nisus Corp. v. Perma-Chink Sys., Inc., 327 F. Supp. 2d 844, 851 (E.D. Tenn. 2003) (“[T]his
standard does not permit the reviewing court to substitute its own conclusion for that of the
magistrate judge.”); see also Diorio, 2017 WL 1399869 at *2 (observing that the “nondispositive
10
review standard is highly deferential” to the magistrate judge’s decision-making authority
(quotation omitted)). Again, Plaintiffs must rely on precedent to establish that Judge Guyton’s
decision is clearly erroneous or contrary to law before the Court can act, but they have not done
so, having, frankly, ignored the Court’s previous guidance and specifications as to this legal
standard.
In any event, the Court’s review of case law does not leave it with a firm and definite
conviction that Judge Guyton committed clear error or acted contrary to law. As Judge Guyton
recognized in his report and recommendation, the Sixth Circuit has acknowledged that expert
reports under Rule 26(a) “must include ‘how’ and ‘why’ the expert reached a particular result,
not merely the expert’s conclusory opinions.” R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d
262, 271 (6th Cir. 2010) (quotation omitted). Dr. Gaines does not state in his disclosure that he
relied on the CT scan to reach the crucial conclusion that Mr. Devereux suffered a stroke on June
3, 2016, at 1700 hours, in the Knox County Jail. See generally Fielden v. CSX Transp., Inc., 482
F.3d 866, 871 (6th Cir. 2007) (“Rule 26(a) generally serves to ‘allow[] both sides to prepare their
cases adequately and efficiently and to prevent the tactic of surprise from affecting the outcome
of the case.’” (quoting Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000))). While Dr. Gaines
did inform Defendants during his deposition that he drew this conclusion from the CT scan,
Judge Guyton pointed out that case law does not support the proposition that a party can cure
a deficient Rule 26(a)(2) disclosure through an expert’s deposition testimony. [R. & R. at 20];
see generally Roberts, 325 F.3d at 782 (stating that compliance with Rule 26(a)’s requirements
must be “absolute”).
And despite Plaintiffs’ contention otherwise, Dr. Gaines’ mere reference to “medical
records,” as Plaintiffs phrase it, is not a specific enough articulation of how Dr. Gaines reached
11
his conclusion—that is, not specific enough to enable the Court to conclude that Judge Guyton
clearly erred in finding Dr. Gaines’ disclosure to be inadequate under Rule 26(a)(2)(B). See Tate
v. Bionx-Linvatec, No. 06-69-DLB, 2009 WL 10676044, at *7 (E.D. Ky. Mar. 4, 2009) (“Rule
26(a)(2)(B) requires disclosures of very specific and detailed information.”); see also Tyler v.
Pacific Indem. Co., No. 10-cv-13782, 2013 WL 183931, at * (E.D. Mich. Jan. 17, 2013) (“Rule
26(a)(2)(B) requires that the parties provide an extensive expert witness report for each such
witness[.]”); cf. R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp. 2d 905, 911 (N.D. Ohio.
2008) (“[The expert’s] report requires Defendants to trudge through 197 pages to find for
themselves which page(s) support each [of the expert’s] conclusions. Rule 26(a)(2)(B) requires
far more than the lackluster effort put forward by [the expert] in this report.”), affirmed R.C.
Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262 (6th Cir. 2010); see Arneson v. Mich. Tissue
Bank, No. CV 05-189-M-JCL, 2007 WL 4698986, at *5 (D. Mont. Mar. 26, 2007) (“[T]he
absence of a statement of how the medical records support the conclusions[] do[es] not satisfy
the Rule 26(a)(2)(B) requirements.” (emphasis added) (citing Giladi v. Strauch, No. 94 Civ. 3976
RMBHBP, 2001 WL 388052, at *4–5 (S.D.N.Y. Apr. 16, 2001))).
In fact, Dr. Gaines’ reference to “medical records” as the basis for his opinion about the
timing of Mr. Devereux’s stroke would arguably not even satisfy Rule 26(a)(2)(C)’s relatively
pliant requirements, see Fed. R. Civ. P. 26 advisory committee’s note to 2010 amendment (noting
that Rule 26(a)(2)(C) requires a disclosure that is “considerably less extensive than the report
required by Rule 26(a)(2)(B)”), let alone Rule 26(a)(2)(B)’s rigid requirements, see Branes v.
CSXT Transp., Inc., No. 3:13-CV-00525-DJH, 2017 WL 1334303, at *10 (W.D. Ky. Apr. 7,
2017) (observing that a “plaintiff’s reference to voluminous medical records does not qualify as
an adequate summary of facts and opinions” under Rule 26(a)(2)(C)); Ingram v. Novartis Pharms.
12
Corp., 282 F.R.D. 563, 564–65 (W.D. Okla. 2012) (determining that the plaintiff’s treating
physicians’ reference to unspecified testimony “in accordance with” plaintiff’s medical records
was insufficient under Rule 26(a)(2)(C)); Anderson v. Bristol, Inc., 936 F. Supp. 2d 1039, 1059
(S.D. Iowa 2003) (recognizing that “a mere reference to medical records,” without more, violates
Rule 26(a)(2)(C) (citation omitted)). In sum, the Court is unable to conclude that Judge Guyton
clearly erred or acted contrary to law by finding that Dr. Gaines’ disclosure is insufficient under
Rule 26(a)(2)(B).
B. Harmlessness or Substantial Justification
Plaintiffs next argue that “even assuming that Dr. Gaines’s report is deficient,” Judge
Guyton erred by concluding that their failure to comply with Rule 26(a)(2)(B) is not substantially
justified. [Pls.’ Objs. at 1–2]. In response, Defendants’ contend that Plaintiffs raise this argument
of substantial justification “for the first time” and have therefore “waived [it] because it was never
presented to the Magistrate Judge.” [Defs.’ Resp. at 4–5].
Judge Guyton expressly stated that Plaintiffs never raised an argument of substantial
justification in response to Defendants’ renewed motion, and he therefore declined to find that
Plaintiffs’ violation of Rule 26(a)(2)(B) was substantially justified: “Given that Plaintiffs did not
respond to Defendants’ Renewed Motion, the Court cannot find that the insufficient disclosure
is harmless or substantially justified.” [R. & R. at 19]. This Court can identify no clear error in
Judge Guyton’s reasoning or his conclusion—again, the burden rests on Plaintiffs, as the party
subject to potential sanctions under Rule 37(c)(1), to raise and show substantial justification.
Roberts, 325 F.3d at 782; Banerjee, 2019 WL 1532865 at *2. Having failed to argue substantial
justification before Judge Guyton, they cannot attempt to do so now before this Court for the first
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time. AES-Apex, 924 F.3d at 867; Murr, 200 F.3d at 902 n.1; Steele, 2018 WL 2144073 at *4;
Becker, 450 F. App’x at 439.
And even if Plaintiffs had not waived this argument, it would still falter because, again,
they cite no legal authority to undergird it. See McPherson, 125 F.3d at 995–96; Fairfield, 2008
WL 584940 at *2; E.D. Tenn. L.R. 7.1(b). The Sixth Circuit has adopted a five-factor test to
determine whether a party’s deficient disclosure is substantially justified:
(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
nondisclosing party’s explanation for its failure to disclose the evidence.
Howe, 801 F.3d at 747. 2 Plaintiffs do not cite or address any one of these five factors. Instead,
they fault Judge Guyton for retracting his “earlier ruling” that Dr. Gaines’ disclosure, after its
supplementation, was sufficient, and they insist that they “were lucky to even get the declaration
in the first place, which Dr. Gaines was under no obligation to provide.” [Pls.’ Objs. at 2]. But
against the spirit of the five-factor test, Plaintiffs do not address, with either of these arguments,
the effect of their own failure to properly supplement Dr. Gaines’ disclosure after Judge Guyton
originally found it to be deficient, on November 13, 2018. Besides, if anything, this Court’s
determination that Judge Guyton erred on November 13, 2018—by allowing Plaintiffs to file the
supplemental disclosure without first making a proper showing of harmlessness—vitiates the
supplemental disclosure and leaves intact only the initial disclosure. See Howe, 801 F.3d at 747
(stating that a noncompliant party may avoid sanctions under Rule 37(c)(1) only if “there is a
2
Citing Rule 37’s Advisory Committee Notes, the Sixth Circuit has also applied a bipartite test for
harmlessness, which requires “[1] an honest mistake on the part of [the party subject to potential sanctions] [2] coupled
with sufficient knowledge on the part of the other party.” Roberts, 325 F.3d at 783 (quotation omitted); see Sommer
v. Davis, 317 F.3d 686, 692 (6th Cir. 2003) (“Nothing in the present case suggests that the failure to disclose Dr.
Loomis in a timely manner was the result of an honest mistake. Nor did the defendants have sufficient knowledge of
him or his opinions, since the first hint that he might have some involvement in the case came . . . months after the
expert-disclosure deadline.”).
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reasonable explanation of why Rule 26 was not complied with or the mistake was harmless”
(quotation omitted)). As to this initial disclosure, Judge Guyton determined that it was “wholly
inadequate.” [J. Guyton’s Mem. Op. at 10].
In sum, the Court cannot conclude that Judge Guyton clearly erred or acted contrary to
law by recommending that it grant Defendants’ renewed motion and exclude Dr. Gaines’
testimony, including his declaration. See Fed. R. Civ. P. 37(c)(1) (“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 trial, unless the
failure was substantially justified or is harmless.”); Roberts, 325 F.3d at 782 (stating that Rule
37(c)(1) “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” (quotation omitted)); see
also R.C. Olmstead, 606 F.3d at 277 (“I join the court’s opinion, and write briefly to emphasize
that it was not only permissible, but salutary that the district court chose to enforce
Rule 26(a)(2)(B) by striking [the plaintiff’s] expert report. The report was patently noncompliant
with the Rule.” (Kethledge, J., concurring)); Hunt v. Hadden, 127 F. Supp. 3d 780, 789 (E.D.
Mich. 2015) (“Exclusion of expert testimony is the ‘standard sanction’ for a violation of Rule
26.’” (quotation omitted)). The Court will therefore not consider Dr. Gaines’ declaration as
evidence at the summary-judgment stage. Fed. R. Civ. P. 37(c)(1).
IV.
CONCLUSION
Plaintiffs fail to satisfy their burden of showing that Judge Guyton clearly erred or acted
contrary to law. Plaintiffs’ objections [Doc. 130] are therefore OVERRULED, and Judge
Guyton’s report and recommendation [Doc. 127] is ACCEPTED IN WHOLE. Defendants’
Renewed Motion to Strike and Exclude Dr. Gaines’ Opinions [Doc. 99] is GRANTED.
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So ordered.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
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