United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate Judge
Prem Mathi (“Mathi”) filed this negligence action
against Federal Reserve Bank of Richmond, Baltimore Branch
(“FRBR”). ECF 2. FRBR impleaded third-party
defendant Boon Edam, Inc. (“Boon Edam”). ECF 16.
Pending before this Court is Mathi's Motion to Strike
FRBR's expert witness, Dr. C.J. Abraham, ECF 64, Boon
Edam's Opposition, ECF 67, and Mathi's Reply, ECF 68.
No. hearing is necessary. See Loc. R. 105.6 (D. Md.
2016). For the reasons stated below, Mathi's Motion will
be denied without prejudice.
background, Mathi's negligence claim centers around a
revolving security door, which allegedly caused him injury as
he attempted to enter FRBR's building on June 4, 2013.
ECF 2 ¶¶ 9, 12. Presently at issue is FRBR's
November 6, 2017 designation of Dr. C.J. Abraham, P.E. as its
expert on liability. See ECF 67-1 (FRBR's Rule
26(a)(2) Expert Designation). In his November 1, 2017 report,
Dr. Abraham opined that Boon Edam designed and installed a
defectively designed sensor and oral warning system for the
revolving door in issue. ECF 67-1 ¶ 11. At his
deposition on February 15, 2018, however, Dr. Abraham
reversed his opinion as to the appropriateness of the
revolving door's design, stating: “Boon Edam
designed and installed a sensor system that was correctly
installed at the time of the incident and that there was
nothing wrong with the system; it was not defective.”
Abraham Dep., pp. 29-31, ECF 64-2 at 8-9. According to Dr.
Abraham, the receipt of “additional documents”
caused him to reverse his initial opinion. See
Abraham Dep., p. 7, ECF 64-2 at 8. Dr. Abraham also opined at
his deposition that Mathi: (1) walked unreasonably close to
the revolving door prior to its stopping, with the specific
goal of intentionally injuring himself; and (2) suffers from
an addiction to prescription drugs. Based on the conflicting,
as well as new, information offered by Dr. Abraham at his
deposition, Mathi has moved to strike all of Dr.
Abraham's testimony on the grounds that: (1) Dr.
Abraham's opinions fail to satisfy the reliability
requirements of FRE 702; and/or (2) FRBR failed to supplement
Dr. Abraham's report pursuant to Rule 26(e). ECF 64 at
current posture, I am unable to decide Mathi's Motion.
Pursuant to FRE 702, expert testimony must rest on a reliable
foundation and must be relevant. Daubert v. Merrell Dow
Pharm., 509 U.S. 579, 597 (1993); see also Kumho
Tire Co. v. Carmichael, 526 U.S. 137 (1999) (extending
Daubert to “the testimony of . . . other
experts who are not scientists”). Several factors may
be relevant to the Court's determination of reliability,
including: (1) whether the expert's theory or technique
has been tested, (2) whether it has been subjected to peer
review and publication, (3) the known or potential rate of
error, and (4) whether the theory or technique is generally
accepted within a relevant scientific community. Cooper
v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir.
2001). Here, however, I cannot determine the reliability of
Dr. Abraham's opinions, because I have not been provided
with the documents he relied upon to reach his conclusions,
nor an explanation as to how these documents reversed
portions of his original opinions. See Abraham Dep.,
p. 7, ECF 64-2 at 3 (“Yes. There are additional
documents that I received after I rendered my
report.”); Kumho Tire Co., 526 U.S. at 139
(“In determining whether particular expert testimony is
reliable, the trial court should consider the specific
Daubert factors where they are reasonable measures
of reliability.”); United States v. Horn, 185
F.Supp.2d 530, 552 n. 39 (D. Md. 2002)
(“Daubert requires analysis of the methodology
used, its reliability and validity.”). Neither Mathi
nor Boon Edam asked Dr. Abraham for that information during
without knowing when Dr. Abraham received the additional
documents and when he revised his opinions, I am unable to
determine whether FRBR has failed to adhere to Rule 26(e).
See S. States Rack And Fixture, Inc. v. Sherwin-Williams
Co., 318 F.3d 592, 595-96 (4th Cir. 2003) (“Of
importance here, Rule 26(e)(1) requires a party to supplement
its experts' reports and deposition testimony when the
party learns of new information.”); Jackson v.
Teamsters Local Union 922, 312 F.R.D. 235, 236 (D.D.C.
2015) (“Rule 26(e)(1)(A) concerns any disclosures
(related to experts or not) under Rule 26(a) and requires a
party to ‘supplement or correct its disclosure or
response . . . in a timely manner if the party learns that in
some material respect the disclosure or response is
incomplete or incorrect . . . .'”) (citation
omitted); Mitchell v. Volkswagen Grp. of Am., Inc.,
No. 1:10-CV-0944-SCJ, 2013 WL 12108248, at *1 (N.D.Ga. July
10, 2013) (Rule 26(e) requires “a party to supplement
or correct its expert's report or deposition testimony
‘in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or
Mathi's Motion to Strike, ECF 64, is denied. FRBR is
ordered to supplement Dr. Abraham's report on or before
July 31, 2018. In the supplement, Dr. Abraham should provide:
(1) the date(s) he received the additional documents and
revised his opinion(s); (2) his methodology and/or rationale
for his conclusions; and (3) the documents he relied upon in
forming his revised opinions. Thereafter, on or before August
14, 2018, Mathi may re-file his Motion to Strike on the
grounds that Dr. Abraham's opinions fail to satisfy FRE