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Wolfe v. Reed

United States District Court, D. Maryland

March 12, 2018



          Paula Xinis United States District Judge

         I. Background

         Pending 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.

         This 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).

         Defendant 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[1] 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).

         II. Analysis

         Pursuant 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).

         A. Medical bill related to neck surgery

         Defendant 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 unforeseeable.

         Defendant 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.[2]

         Defendant 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.

         Moreover, 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 ...

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