United States District Court, D. Maryland
Xinis United States District Judge
in this medical malpractice action is Plaintiff Edward
Harmon's Motion to Strike the Supplemental Expert Reports
of Defense nephropathologist, Dr. Cinthia Drachenberg (in its
entirety) and Defense nephrologist D. Richard Ugarte (in
part). (ECF No. 63). The matter was discussed during the
recorded status conference held on March 15, 2018. The Court
has received briefing. Upon consideration, the Court GRANTS
case has been pending since September 2015,
with formal discovery having closed fifteen months ago, on
December 9, 2016. After the Court resolved
the parties' cross motions for summary judgment by
written memorandum opinion and order dated September
15, 2017, the Court permitted limited additional
discovery on damages only. Specifically,
although the Court denied the Government's motion to
exclude Plaintiff's expert nephrologist, Dr. Gehr,
regarding his opinion on Harmon's prognosis for reaching
end stage renal failure (and thus when he would need a kidney
transplant), the Court permitted Dr. Gehr to update and
refine his opinion on the timeline for such necessary
follow-up care. See ECF No. 65, Hearing Tr. pps.
96-100. In fact, at the end of the motions hearing, the
Government expressly confirmed for the Court that it
understood the contemplated “supplemental
discovery” to be “on the plaintiff's damages
expert.” Id. at 107.
in pleadings and in another recorded status conference with
this Court, the Government reaffirmed that it understood the
supplemental discovery to be limited to the Plaintiff's
damages profile only. On October 31, 2017, for example, the
Government urged this Court to amend the pretrial scheduling
order so that its experts could fully respond to
Plaintiff's damages report. The Government wrote,
“Defense counsel also advised that she would provide
this updated expert information to her damages
experts, who may also wish to revise their opinions
in light of both Mr. Harmon's new lab results and the
updated damages opinions of Plaintiff's
experts.” ECF No. 51 (emphasis added). The Government
again on November 3, 2017 persisted to this Court that it
needed more time to secure supplemental damages opinions
specifically because “[f]ull settlement authority
cannot be granted without analysis of Plaintiff's updated
damages analysis.” ECF No.
53, p. 2 (emphasis added). Then, on November 17, 2017, during
a recorded status conference with the Court, the Government
again pressed for additional time because its
“damages experts are still reviewing
Dr. Gehr's updated reports.” ECF No. 56, Rec. Conf.
11/17/2017 (emphasis added). At no point did the Government
ever communicate to Plaintiff's counsel or to this Court
that it was even contemplating a revision of opinions as to
causation in this matter.
now argues that this Court should strike Dr.
Drachenberg's supplemental expert report in toto
because she now offers a new opinion on causation based on
old evidence, namely her examination of pathology slides.
Harmon further urges that this Court strike Dr. Ugarte's
supplemental expert report to the extent his new opinion
relies on Dr. Drachenberg's new opinion. The Government
claims that the supplemental opinions are responsive to
Gehr's updated damages opinion, and that any surprise may
be cured between now and trial.
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 non-disclosing 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
non-disclosing party[.]” Wilkins v.
Montgomery, 751 F.3d 214, 222 (4th Cir. 2014).
Court agrees that Drs. Drachenberg and Ugarte offer new
opinions on causation based on old evidence, all of which
goes well beyond the narrow and limited damages discovery
flowing from Dr. Gehr's supplemental report. During the
discovery period, Dr. Drachenberg's made clear in
deposition that she did not intend to offer any
opinion on what caused Harmon's initial elevated
creatinine; she also confirmed that she had reviewed the
pathology slides in advance of her deposition. ECF No. 63-2,
well over a year after formal discovery has closed, and in
response to this Court's limited supplemental damages
discovery, Dr. Drachenberg's proffered opinion centers on
Harmon's “Crohn's disease itself” as
“an important cause of Mr. Harmon's chronic kidney
damage.” ECF No. 63-6. The supplemental report goes on
to opine as to the difference between “acute” and
“chronic” components of her review of the
pathology slides, concluding ultimately that “to a
reasonable degree of medical certainty, ” Harmon's
pathology “cannot be attributed purely to
Mesalamine, but can be attributed to Crohn's.”
Id. It is remarkable, and quite stunning, that
despite Dr. Drachenberg claiming her supplemental opinions
are “generated after evaluation” of Dr.
Gehr's supplemental damages report, not once
does she refer to Dr. Gehr's report in when setting out
her supplemental opinions. ECF No. 63-6. Dr. Gehr's
supplemental opinion, in short, appears irrelevant to Dr.
Drachenberg's supplemental report. As to Dr. Ugarte's
supplemental report, he relies exclusively on Dr.
Drachenberg's supplemental opinions on the significance
of the slide pathology to undergird the lion's share of
his new opinions. ECF No. 63-7.
the context in which limited damages discovery was permitted,
it is beyond dispute that the Plaintiff is surprised by these
new opinions. The very reason why experts are asked at
deposition to state expressly the limits of their
opinions is to provide fair notice of that which the
Plaintiff needs to contend at trial. Plaintiff did just that
here, only to be whipsawed with new opinions on causation
based on old evidence.
regard to curing the surprise, the Plaintiff's
opportunities are limited. Trial is a month away. Motions
in limine, trial exhibits and pretrial statements
are due tomorrow. These new opinions on causation -
essentially attempting to apportion Harmon's kidney
injury between Crohn's and the side effects of Mesalamine
- are new, complex and subject to robust challenge. It will
cost precious time and money to rebut these opinions, thus
rendering it difficult, if not impossible, to fashion any
equitable cure to the surprise. Nor will this Court continue
the trial that has been set for many months in a case of this
magnitude to ...