Fuller v. Carilion Clinic

Filing 53

ORDER denying 42 Motion to Strike 36 Expert Discovery Report. Signed by Judge Frederick P. Stamp, Jr on 4/16/19. (sas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Roanoke Division
ROGER S. FULLER, JR.,
Plaintiff,

v.

Civil Action No. 7:17CV564
(STAMP)

CARILION CLINIC,
Defendant.

ORDER DENYING DEFENDANT’S MOTION TO STRIKE
PLAINTIFF’S EXPERT DISCOVERY REPORTS
On January 18, 2019, the plaintiff, Roger S. Fuller, Jr.
(“Fuller”), filed an expert discovery report. ECF No. 36. In that
report, plaintiff disclosed the following expert witnesses: (1) Mr.
Philip S. Hayden (“Mr. Hayden”) (expert in police procedures); (2)
Ms. Christy Taylor (“Ms. Taylor”) (non-expert who would testify as
to observations of plaintiff before and after alleged events that
led to plaintiff’s injuries); (3) Dr. Nathan B. Fountain (“Dr.
Fountain”) (expert in treating epilepsy, seizure disorders); (4)
Dr. Stephanie Bajo (“Dr. Bajo”) (expert in psychiatry).
1-2.

Id. at

The disclosure then contains a written report of Mr. Hayden.

Id. at 3-5.

Plaintiff did not provide a written report from Dr.

Fountain

Dr.

or

Bajo,

indicating

that

the

doctors

diagnosed

plaintiff on January 18, 2019, the date that the expert witness
disclosure was due (see ECF No. 31 at 3), but that he would
supplement the disclosures as soon as practicable.
at 2.

ECF No. 36

After filing its own expert discovery report (see ECF No. 39),
the defendant Carilion Clinic filed a motion to strike plaintiff’s
expert discovery report (ECF No. 36).

ECF No. 42.

The defendant

Carilion Clinic first stated that Mr. Hayden’s report does not
contain any discussion of the reasoning behind his conclusions, and
the data he relied on to reach his conclusions may not be complete
since Mr. Hayden indicated that such data may include information
that has not yet been produced by Carilion Clinic; therefore, Mr.
Hayden’s report should be excluded.

Id. at 2-4.

Defendant

Carilion Clinic then indicated that Dr. Fountain’s and Dr. Bajo’s
reports do not contain the required written reports signed by the
witnesses. Id. at 2, 4. Defendant Carilion Clinic stated that the
plaintiff should have at least provided copies of medical records.
Id. at 4.
The plaintiff then submitted a supplemental expert witness
disclosure (ECF No. 44), stating that in the absence of a written
report, Dr. Fountain is a treating physician, incorporating the
disclosure of Dr. Fountain as set forth in the previous expert
disclosure (ECF No. 36).

ECF No. 44 at 1.

Plaintiff then filed a

response to defendant Carilion Clinic’s motion to strike.
No. 47.

ECF

In that response, plaintiff withdrew Dr. Bajo and Dr.

Fountain as retained expert witnesses, but indicated that Dr.
Fountain was deposed by both parties.

Id. at 2.

Plaintiff then

asserted that Mr. Hayden’s report stated the information he relied
upon to reach his conclusions, and that the report listed his

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credentials to reach such conclusions.

Id.

Plaintiff contends

that an extensive rationale is not necessary, and that under the
balancing

test:

(1)

there

is

no

surprise

to

defendant;

(2)

plaintiff cured whatever surprise there may be because he has
attached a supplemental expert report by Mr. Hayden (see ECF
No. 48); (3) Mr. Hayden did not change his opinion, but only
provided additional rationale for reaching his conclusions; and (4)
the additional rationale is not additional evidence.

Id. at 2-4.

Plaintiff then concluded by stating that he would agree to any
extension of the discovery deadline should defendant choose to
depose Mr. Hayden after reviewing the supplemental report.

Id.

at 4.
Defendant

Carilion

Clinic

did

not

file

a

reply

to

the

plaintiff’s response.
After consideration of the parties’ contentions, this Court
finds that defendant Carilion Clinic’s motion to strike (ECF No.
42) should be DENIED.
information

in

accord

26(a)(2)(A) and (B).
defect

in

supplemental

his

Plaintiff Fuller has provided sufficient
with

Rule

of

Civil

Procedure

Plaintiff Fuller has remedied any potential

initial

report

Federal

(ECF

expert
No.

disclosures
47-1)

further

by

providing
detailing

information Mr. Hayden relied upon to reach his conclusions.

a
the
As

mentioned previously, defendant Carilion Clinic has not filed a
reply to plaintiff Fuller’s response.

Moreover, plaintiff Fuller

has withdrawn both Dr. Fountain and Dr. Bajo as retained expert

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witnesses, while noting that Dr. Fountain has been deposed by both
parties.

Dr. Fountain is designated as a treating physician under

Federal Rule of Civil Procedure 26(a)(2)(C).

Lastly, there seems

to have been no objection based on Federal Rule of Evidence 701 as
to plaintiff Fuller’s intent to have Ms. Taylor provide non-expert
testimony.
Accordingly, for the reasons stated above, the defendant’s
motion to strike plaintiff’s expert discovery reports (ECF No. 42)
is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this order to
counsel of record herein.
DATED:

April 16, 2019

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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