United States District Court, D. Maryland
Xinis United States District Judge
in this tort action is the Defendant's motion to exclude
Plaintiff's trial exhibits 11 and 15. (ECF No. 69). The
matter was discussed at the pretrial conference held on March
8, 2018. The Court has received briefing. Upon consideration,
the Court DENIES the motion.
automobile collision case has been pending since April 26,
2016. On March 6, 2018, Plaintiff Barbara Wolfe sent
Defendant her proposed trial exhibits. Exhibits 11 and 15 are
two single-page invoices for medical bills related to
Plaintiff's neck and carpal tunnel surgeries. One exhibit
reflects $91, 350.70 of expenses related to Plaintiff's
neck surgery on October 2, 2015. The other shows $12, 533.04
related to Plaintiff's bilateral carpal tunnel surgery of
December 9, 2016. (ECF Nos. 70, 70-2, 72).
moved to suppress these exhibits because Plaintiff failed to
properly disclose them during discovery. (ECF No. 70).
Plaintiff argues that both exhibits should be allowed because
the discovery failure was inadvertent, any prejudice could be
cured, and Defendant was on notice as to the surgeries. (ECF
No. 73). Defendant argues that the exhibits should be
excluded because Plaintiff failed to disclose these invoices
in a timely fashion despite the obligation to do so, that the
costs reflected in these new bills adds over $100, 000 in
total medical expenses, and Defendant's expert
neurosurgeon is unavailable for a follow-up de bene
esse deposition to opine on these bills before trial set
to begin March 20, 2018. Defendant contends that any other
form of evidence or testimony as to the fairness or
reasonableness of these charges would not cure the prejudice
and so exclusion is warranted. (ECF No. 74).
to Federal Rule of Civil Procedure 37(c)(1), “[i]f a
party fails to provide information or identify a witness as
required . . . 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.” To determine whether
nondisclosure was substantially justified or harmless, courts
look to five factors:
(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.
S. States Rack And Fixture, Inc. v. Sherwin-Williams
Co., 318 F.3d 592, 597 (4th Cir. 2003).“The first
four factors . . . relate primarily to the harmlessness
exception, while the last factor . . . relates mainly to the
substantial justification exception.” Bresler v.
Wilmington Trust Co., 855 F.3d 178, 190 (4th Cir. 2017).
“The burden of establishing these factors lies with the
nondisclosing party[.]” Wilkins v. Montgomery,
751 F.3d 214, 222 (4th Cir. 2014).
Medical bill related to neck surgery
knew of Plaintiff's neck surgery and the surgeon's
fees, and had received supporting medical records well within
the discovery period. Defense expert neurosurgeon, Dr. Donald
G. Hope, viewed these records prior to testifying at his
de bene esse deposition, and specifically opined
that based on his thirty years of experience, and having
performed hundreds of similar surgeries annually,
Plaintiff's surgery was not causally connected to the car
collision. Thus, although Defendant lacked specific notice of
the particular single page of charges related to this
surgery, she knew and had been given all underlying
documentation regarding the nature and extent of the surgery,
as well as the facility in which the surgery was performed.
In this context, the additional page of surgery-related
charges from the facility may be new to Defendant but not
has asserted prejudice arising from Dr. Hope's
unavailability to supplement his de bene esse
deposition before trial. Plaintiff, however, has responded
that should Defendant wish for Dr. Hope to opine on the
fairness and reasonableness of the charges included within
the single page exhibit, Plaintiff would not object to
reading into the record an affidavit prepared by Dr. Hope
should he have any opinions in this regard. Alternatively,
Plaintiff has offered to supplement Dr. Hope's testimony
by phone deposition or in any other manner chosen by
Defendant and at Plaintiff's expense.
claims this concession would not cure her prejudice but has
not explained why. Nor has Defendant addressed whether Dr.
Hope could be available for testimony by phone at any
point between now and the conclusion of trial, roughly
two weeks' time. Given that the related bill is a single
page, involves surgery which Dr. Hope has performed countless
times, and Dr. Hope has previously reviewed and relied upon
all of Plaintiff's related surgery records, the Court
finds it difficult to believe that Dr. Hope is simply unable
to opine before the conclusion of trial on the narrow
question of the fairness and reasonableness of the charges.
during the pretrial conference, Plaintiff's counsel
pointed out that, due to technical difficulties, not all of
the expert's de bene esse deposition was
recorded, meaning that Defendant's counsel already will
have to read parts of Dr. Hope's testimony into the
record. Thus, the additional prejudice of reading Dr.
Hope's supplemental opinion on the fairness or
reasonableness of these charges is minimal. It also does not
appear that this additional evidence would ...