Doe v. Russell County School Board et al

Filing 130

OPINION and ORDER granting in part and denying in part 92 Motion in Limine and Brief in Support to Exclude New Expert Reports and Testimony. Signed by Judge James P. Jones on 3/1/18. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
JOHN DOE, AN INFANT, BY HIS NEXT )
)
FRIEND, REELIA WATSON,
)
Plaintiff,
)
)
v.
)
)
RUSSELL COUNTY SCHOOL BOARD )
)
D/B/A RUSSELL COUNTY PUBLIC
)
SCHOOLS, ET AL.,
)
Defendants.
)

Case No. 1:16CV00045
OPINION AND ORDER
By: James P. Jones
United States District Judge

Monica H. Beck and Douglas E. Fierberg, The Fierberg National Law
Group, PLLC, Traverse City, Michigan, and Paul R. Thomson, III, The Thomson
Law Firm, PLLC, Roanoke, Virginia, for Plaintiff; Christopher S. Dadak and Jim
H. Guynn, Jr., Guynn & Waddell, P.C., Salem, Virginia, and Mary Katherine
Patton, Chafin Law Firm P.C., Lebanon, Virginia, for Defendant Russell County
School Board d/b/a Russell County Public Schools
In this action under Title IX and 42 U.S.C. § 1983 against a local school
board (“School Board”) as a result of molestation of a young student by a school
custodian, the plaintiff John Doe has filed a motion in limine to exclude new
disclosures of two experts retained to testify at trial for the School Board. Doe also
requests that I order the School Board to pay reasonable expenses associated with
filing the motion to exclude. The motion has been fully briefed and orally argued
and is ripe for decision.

In his motion, Doe argues that any new testimony by either expert —
Elisabeth Counselman-Carpenter, Ph.D., and Alex Redcay, Ph.D. — should be
excluded from trial because the new disclosures of this testimony are untimely and
not truly supplemental. For the reasons that follow, I will grant in part and deny in
part Doe’s motion.
I will take up each expert’s new disclosure separately.
DR. COUNSELMAN-CARPENTER.
Dr. Counselman-Carpenter’s original expert report was disclosed to Doe on
October 20, 2017, a deadline date informally stipulated to by the parties, although
some months after the expert disclosure date set forth in the court’s Scheduling
Order entered March 20, 2017. 1

Doe’s counsel deposed Dr. Counselman-

Carpenter based on this report on November 27, 2017. On December 12, 2017, the
School Board provided the new report in question.
Both Dr. Counselman-Carpenter’s original and new reports set forth her
opinions on Doe’s projected mental health outcome and future treatment needs.
Her original report concluded that “solely based on the symptoms Dr. Epstein
[plaintiff’s expert] reports, the diagnosis of [“Posttraumatic Stress Disorder] is

1

The Rules do not allow the parties to stipulate a change in the court’s order
governing the time for expert disclosures, although they may stipulate a deadline
different from the default deadline set forth in the Rules. See Fed. R. Civ. P. 26
(a)(2)(D). Thus, the stipulation here was improper, since the court’s Scheduling Order
fixed the date for expert disclosures.
2

likely accurate, but remains inconclusive.” Mot. Lim. Exclude Expert Reports Ex.
8, at 2-3, ECF No. 92-8.

Dr. Counselman-Carpenter similarly testified in this

regard during her deposition:
A. It is my opinion that Dr. Epstein’s diagnosis of PTSD is inconclusive.
Q. Okay. So you have no opinion as to whether Doe is suffering from PTSD
or not?
A. My opinion is that Dr. Epstein’s opinion does not provide enough
information for that diagnosis to stand.
Q. So you have no opinion as to whether Doe has PTSD or not?
A. I don’t have enough information to make - - to share an opinion either
way.
Q. Okay. Your report says that the diagnosis of PTSD is likely accurate.
So are you now - - are you now trashing your own statement?
A. No.
Q. So you still agree that the diagnosis of PTSD is likely accurate?
A. Correct. But as also stated in my report, it is inconclusive at this time.
Id. at Ex. 15, at 57, ECF No. 92-15.
In her new report, Dr. Counselman-Carpenter opines that “[l]imited access
to diagnostic information from John Doe’s mental health treatment history
demonstrates a diagnosis of Adjustment Disorder with mixed anxiety and
depression . . . not PTSD.” Id. at Ex. 12, at 1, ECF No. 92-12. Dr. CounselmanCarpenter’s new report also includes an additional conclusion that the reports made
3

by DSS do not support Dr. Epstein’s claims regarding projected mental health
outcomes and needed treatment. Accordingly, the differences between her original
and new reports are as follows, with significant differences highlighted:

Original Report (10/20/17)

New Report (12/10/17)

“Dr. Epstein’s estimated lifetime cost
of treatment for John Doe’s future
medical care is not supported strongly
by the presenting clinical evidence or
reasonable and customarily accepted
models of treatment for PTSD.”

“Multiple reports made by the
Virginia Department of Social
Services throughout 2016 & 2017 do
not support Dr. Epstein’s claims
regarding projected mental health
outcomes and projected levels of care.
Treatment history indicates a far less
significant need than the treatment
model projected by Dr. Epstein.”

--------------

--------------

“While it is difficult to diagnose
someone without having conducted a
formal in-person evaluation, solely
based on the symptoms Dr. Epstein
reports, the diagnosis of PTSD is
likely accurate, but remains
inconclusive.”

“Limited access to diagnostic
information from John Doe’s mental
health treatment history demonstrates
a diagnosis of Adjustment Disorder
with
mixed
anxiety
and
depression . . . not PTSD.”
--------------

--------------

“Multiple reports support John
Doe’s
capacity
for
and
demonstration of continued factors
of resilience.”

No opinion re: John Doe’s capacity
for and demonstration of resilience.

Id. at Ex. 8, at 2-3; Ex. 12, at 2, ECF No. 92-8, 92-12.
According to the School Board, the new opinions resulted from Dr.
Counselman-Carpenter’s review of additional documents, predominantly records
from the local Department of Social Services (“DSS”) and some foster care
4

records. 2 Also in her new report, Dr. Counselman-Carpenter highlights specific
opinions of Dr. Epstein that she feels are undermined by these documents. In
contrast, her original report questioned the basis of Dr. Epstein’s opinions and
stated that he did not provide enough “collateral” or “clinical” evidence to support
his claims, but otherwise offered no specific concerns.
This case is set for trial to begin on March 12, 2018. Absent a court order or
stipulation, disclosures of expert testimony must be made at least 90 days prior to
trial. Fed R. Civ. P. 26(a)(2)(D)(i). Supplemental expert disclosures must be made
at least 30 days prior to trial.

Fed. R. Civ. P. 26(e)(2).

Dr. Counselman-

Carpenter’s initial report was disclosed on October 20. After her deposition, the
School Board disclosed the new report on December 12, exactly 90 days prior to
trial. In this case, however, the parties agree that the magistrate judge verbally
ordered that the parties could not disclose new expert testimony after the expert’s
deposition. Moreover, the disclosure of new expert testimony would violate the
parties’ stipulation of a deadline for the School Board’s expert disclosure. Only if
2

The School Board issued a subpoena to the DSS on October 30, 2017,
requesting that certain DSS records be produced by November 27, 2017. This request
was made 10 days after Dr. Counselman-Carpenter’s initial expert report had been
submitted, and the School Board contends that Dr. Counselman-Carpenter did not have
an opportunity to review the DSS records before her deposition. However, Doe’s counsel
previously had disclosed to the School Board that Doe had been in counseling when in
foster care, and the School Board certainly was aware that the DSS investigation and
records were a critical component of this case. Therefore, the School Board should have
requested these records much sooner and cannot legitimately rely on not having them as
the reason the new expert opinions should be permitted.
5

the new report constituted a true supplemental disclosure would it be proper. I
agree with the plaintiff, however, that the new report and its opinions do not
constitute a true supplemental disclosure.
Rule 26 requires a party to “supplement or correct” its disclosures if it
“learns that in some material respect the disclosure or response is incomplete or
incorrect.” Fed. R. Civ. P. 26(e)(1). “But the rule is not a license to freely amend
expert reports to bolster a party’s position.” Bentley v. Highlands Hosp. Corp.,
Civ. No. 15-97-ART-EBA, 2016 WL 5867496, at *4 (E.D. Ky. Oct. 6, 2016).
Supplemental expert reports are limited to “correcting inaccuracies” or “filling . . .
interstices.” Munchkin, Inc. v. Playtex Prods., LLC, 600 F. App’x 537, 538 (9th
Cir. 2015) (unpublished) (internal quotation marks and citations omitted).

A

party’s “clear obligation to disclose and supplement expert witness information in
a timely fashion . . . does not permit a party to make an end-run around the normal
timetable for conducting discovery.” East West, LLC v. Rahman, No. 1:11CV1380
(JCC/TCB), 2012 WL 4105129, at *6 (E.D. Va. Sept. 17, 2012) (quoting Colony
Apartments v. Abacus Project Mgmt., Inc., 197 F. App’x 217, 223 (4th Cir. 2006)
(unpublished) (internal quotation marks omitted). Accordingly, “[c]ourts
distinguish true supplementation (e.g., correcting inadvertent errors or omissions)
from gamesmanship, and have therefore repeatedly rejected attempts to avert
summary judgment by supplementing an expert report with a new and improved
6

expert report.” Disney Enters., Inc. v. Kappos, 923 F. Supp. 2d 788, 795 (E.D. Va.
2013) (citations omitted). I find that the new report by Dr. Counselman-Carpenter
was not a true supplemental disclosure but contained new opinions, not previously
disclosed, and those new opinions are untimely.
Expert testimony produced after the disclosure deadline should be excluded
at trial “unless the failure [to disclose as required by Rule 26(a) or (e)] was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). This court has
broad discretion in determining whether a party’s untimely disclosure is
substantially justified or harmless. Bresler v. Wilmington Tr. Co., 855 F.3d 178,
90 (4th Cir. 2017).

The following factors are instructive when making this

determination:
The surprise to the party against whom the evidence would be
offered;
The ability of that party to cure the surprise;
The extent to which allowing the evidence would disrupt the trial;
The importance of the evidence; and
The non-disclosing party’s explanation for its failure to disclose
the evidence.
S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.
2003). The party failing to disclose bears the burden of establishing that the

7

nondisclosure or untimely disclosure was substantially justified or harmless.
Bresler, 855 F.3d at 190.
In this case, Doe’s counsel could have sought to depose Dr. CounselmanCarpenter again once her new report was disclosed. However, Doe’s counsel was
reasonably under the impression that the magistrate judge’s verbal order nullified
any supplemental expert reports after deposition and therefore, did not follow up
on Dr. Counselman-Carpenter’s new report or the opinions contained therein. As a
result, the ability to cure at this stage of litigation seems limited to a continuance,
which would be greatly disruptive.
Furthermore, with respect to the fourth Southern States factor, Doe’s
diagnosis is a vital part of this case, particularly in informing any award of
damages.
For all of these reasons, any evidence or testimony by Dr. CounselmanCarpenter regarding her diagnosis of Doe will be excluded from trial.
Finally, Dr. Counselman-Carpenter’s opinion concerning Doe’s capacity for
and demonstration of continued factors of resilience is also a new opinion. Her
initial report is silent on this issue, except to the extent she states that Dr. Epstein’s
opinions about Doe’s future treatment needs are not supported. This also impacts a
potential damages award, and thus important at trial. Certainly Doe’s counsel was
surprised by this new opinion. Additionally, for the same reasons discussed above,
8

counsel has not had the reasonable opportunity to depose Dr. CounselmanCarpenter or prepare rebuttal testimony from their own expert, neither of which is
likely to be possible at this late stage. For these reasons, I will also exclude
evidence or testimony by Dr. Counselman-Carpenter on this issue.
DR. REDCAY.
Dr. Redcay’s initial expert report was disclosed to Doe’s counsel on October
20, 2017. Doe’s counsel chose not to depose Dr. Redcay, “preferring to simply
cross-examine her at trial” and reveal “the many factual errors and omissions in her
report, and her improperly provided legal conclusions.” Mot. Lim. 16, ECF No.
92.

On February 12, 2018, less than 30 days prior to trial, the defendants

disclosed Dr. Redcay’s new report.
The differences between Dr. Redcay’s original and new reports are
illustrated as follows:
Original Report (10/19/17)

New Report (2/12/18)

“John Doe’s grandmother gave
permission for him to live with BG.”

“John
Doe’s
guardians,
his
grandparents and his mother, gave
permission for John to have
unrestricted contact with BG. John
frequently requested to spend time
with BG.
Teachers and staff
provided John, as well as other
children at the school, items such as
clothing because . . . he had
financial need. BG showed an
interest in improving John’s grades
and as John spent more time with
BG, his grades improved or at least
9

remained constant. As a professed
Christian and like many school
staff and teachers, BG showed a
genuine interest in helping John.”

--------------

--------------

“As soon as a [Lebanon Elementary
School-Russell County Public School
System] staff member became aware
of suspected child abuse/neglect, they
followed the rules according to the
Code of Virginia 63.2-1509 and the
policy of the Virginia Department of
Social Services, Child Protective
Services, based on the Children &
Family Services Manual (July 2017).”

“Staff, teachers and administrators at
Russell School District followed
Code of Virginia 63.2-1509, Title IX
requirements and DSS policy.”

Id. at Ex. 9, at 1, 2; Ex. 13, at 4, ECF No. 92-9, 92-13.
These new opinions are based on Dr. Redcay’s later review of all
depositions taken in the matter and the DSS Child and Family Services Manual
dated July 2017. The documents she relied upon in her initial report were limited
to the Complaint, Plaintiff’s Objections and Answers, and the plaintiff’s expert
reports.
With respect to the first conclusion of the new report, Dr. Redcay does not
propose a new opinion, but rather expands upon her original information that
Doe’s grandmother gave permission for him to live with Gobble. However, she
does include opinions about Doe’s financial status and grades, as well as Gobble’s
“genuine interest” in Doe’s well-being. Regardless, this opinion is not a true
supplement to her initial report because it “contains new information and expert
10

opinion, intended both as an expansion of [her] earlier expert report as well as a
means to impermissibly broaden the scope” of her opinion. East West, 2012 WL
4105129, at *7 (“The mere fact that [an expert’s] [f]irst [r]eport does not state all
of the opinions [the defendants] would now like to admit does not give them free
reign to submit those opinions under the guise of supplementation.”). Moreover,
Dr. Redcay’s new report also proposes to present opinions concerning Title IX,
which is an issue not previously addressed by her and for which Doe argues she is
unqualified. Her report is untimely whether the opinions contained therein are
considered supplemental or new.
Dr.

Redcay’s

new

disclosures

are

untimely,

whether

considered

supplemental or merely new. Unlike Dr. Counselman-Carpenter’s report, the
magistrate judge’s verbal order does not apply because Doe’s counsel chose not to
depose Dr. Redcay. However, the report was disclosed later than 90 days (new
disclosures) or 30 days (supplemental disclosures) prior to trial.
The School Board argues that the disclosure, assuming it was truly
supplemental, was timely because the 30th day fell on a Saturday, and the School
Board filed the disclosure the following Monday. Rule 6 provides that when
computing any time period that is stated in days, the last day of the period is
included, “but if the last day is a Saturday, Sunday, or legal holiday, the period
continues to run until the end of the next day that is not a Saturday, Sunday, or
11

legal holiday.” Fed. R. Civ. P. 6(a)(1)(C). The “next day” is determined by
“continuing to count forward when the period is measured after an event and
backward when measured before an event.” Fed. R. Civ. P. 6(a)(5). The 2009
amendment to Rule 6 provides that in determining what is the “next day” for
purposes of subdivision (a)(1)(C), “one should continue counting in the same
direction – that is, forward when computing a forward-looking period and
backward when computing a backward-looking period.” Fed. R. Civ. P. 6 advisory
committee’s note to 2009 amendment. In this case, pretrial disclosures had to be
made 30 days before trial. Therefore, this time period was backward-looking, and
the School Board’s disclosures were due the Friday before the 30th day, not the
Monday after. Accordingly, the School Board failed to timely disclose this report,
and I must determine whether such failure was substantially justified or is
harmless.
Applying the Southern States factors to Dr. Redcay’s supplemental report, I
will permit Dr. Redcay’s opinions regarding permission, but exclude any evidence
or testimony regarding Title IX.
With respect to Dr. Redcay’s opinion that Doe’s parent and guardian gave
permission for him to have unrestricted access to Gobble, Doe’s counsel really
should not be surprised by this. Permission by Doe’s parent and guardian is a
relevant issue in this case, and one that Doe’s counsel should be fully prepared to
12

address at trial. Counsel knew that permission was granted by not only Doe’s
grandmother, but also his mother. This is not new information. Certainly the
remainder of Dr. Redcay’s opinion about Doe’s financial need and grades, and
Gobble’s “genuine interest” in helping Doe was not included in her initial report,
which suggests this opinion is new and not merely supplemental. However, I
believe that Doe’s counsel will have adequate time to prepare cross-examination
on these opinions. Importantly, inclusion of these opinions in her initial report
likely still would not have necessitated a deposition. Indeed, as stated above, by
Doe’s counsel’s own admission, they “opted to not depose [Dr. Redcay], preferring
to simply cross-examine her at trial and reveal the faults of her supposed
opinions.”

Mot. Lim. 16, ECF No. 92.

Accordingly, Doe’s counsel can

adequately cure any surprise resulting from these opinions with cross-examination.
The opposite is true with respect to Dr. Redcay’s opinion that staff, teachers
and administrators at Russell County School District followed the requirements of
Title IX. There is likely significant surprise to Doe concerning this opinion. Dr.
Redcay’s initial report made no mention of Title IX. Doe also has very limited
ability to cure this surprise at this late stage. Doe argues that Dr. Redcay is
unqualified to testify as to Title IX and he would have filed a Daubert motion in
that regard had the time to do so not passed.

Doe also does not have time to

prepare his own expert to offer testimony in rebuttal. Moreover, whether the
13

defendants complied with Title IX is a significant issue in this case. Accordingly, I
will exclude any evidence or testimony by Dr. Redcay about Title IX.
PAYMENT OF REASONABLE EXPENSES.
Doe’s counsel also requests that the School Board be ordered to pay
reasonable expenses associated with filing Doe’s motion.

Rule 37(c)(1)(A)

provides that “in addition to or instead of” excluding evidence, a court “may order
payment of reasonable expenses, including attorney’s fees,” caused by a party’s
failure to provide information or identify a witness as required by Rule 26(a) or (e).
I find that partially granting Doe’s motion to exclude certain expert testimony is
sufficient under the circumstances and will deny Doe’s request for expenses.
CONCLUSION.
For the reasons stated, it is ORDERED as follows:
Plaintiff’s Motion in Limine and Brief in Support to Exclude New Expert
Reports and Testimony, ECF No. 92, is GRANTED IN PART AND DENIED IN
PART. It is GRANTED as to the following evidence, which shall be excluded at
trial:
(a)

Opinion testimony by Dr. Counselman-Carpenter regarding the

proper diagnosis for John Doe;

14

(b)

Opinion testimony by Dr. Counselman-Carpenter regarding

John Doe’s capacity for and demonstration of continued factors of
resilience; and
(c)

Opinion testimony by Dr. Redcay regarding Title IX.

ENTER: March 1, 2018
/s/ James P. Jones
United States District Judge

15