United States District Court, D. Maryland
Prem Mathi (“Mathi”) filed this negligence action
against Federal Reserve Bank of Richmond, Baltimore Branch
(“FRBR”), for injuries he sustained while using a
revolving security door at FRBR's building. ECF 2. FRBR
impleaded third-party defendant Boon Edam, Inc., (“Boon
Edam”), the designer and installer of the door system.
ECF 16. This case has been referred to me for all
proceedings, by consent of the parties. ECF 12, 15, 20. Now
pending is Mathi's Motion in Limine to Preclude Testimony
from Dr. C.J. Abraham, ECF 72, Boon Edam's Opposition,
ECF 73, and Mathi's Reply, ECF 74. No hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). For the
reasons stated below, Mathi's Motion will be granted.
November 6, 2017, FRBR designated 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 had designed and
installed a defectively designed sensor and oral warning
system for the revolving door. 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 3. 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) may suffer
from an addiction to prescription drugs. See Abraham
Dep., pp. 57-61, ECF 64-2 at 15-16. Based on the conflicting,
as well as new, information offered by Dr. Abraham at his
deposition, Mathi filed a motion, citing Daubert v.
Merrell Dow Pharm., 509 U.S. 579 (1993), and moved to
strike all of Dr. Abraham's testimony on the grounds
that: (1) his opinions fail to satisfy the reliability
requirements of FRE 702; and/or (2) FRBR failed to supplement
his report pursuant to Rule 26(e). ECF 64 at 10-15. On July
17, 2018, I ordered FRBR to supplement Dr. Abraham's
report with specific information necessary for me to evaluate
the reliability of his opinions. ECF 69. Instead, on July 27,
2018, FRBR withdrew Dr. Abraham as a witness. ECF 70.
On July 30, 2018, counsel for Boon Edam emailed counsel for
the other parties, stating:
Hi all, please allow this to serve as notice that Boon Edam
intends to call Dr. Abraham as a witness at the time of
trial. He will not be asked any questions about the
ECF 72-1. On August 6, 2018, Mathi's counsel responded by
letter, notifying Boon Edam that its email “is not in
compliance with the Federal Rules of Civil Procedure, ”
and that if Boon Edam intended to call Dr. Abraham as an
expert, “a formal supplement in full compliance with
the Rules and Judge Gallagher's July 17, 2018 Letter
Order is hereby requested.” ECF 72-2. Boon Edam did not
respond to Mathi's letter, and did not supplement Dr.
Abraham's proposed testimony.
reasons I ordered supplementation of Dr. Abraham's report
persist, no matter which party seeks to use him as an expert
witness. Dr. Abraham changed his testimony from testimony
that would harm Boon Edam's case to testimony that favors
Boon Edam. As I stated in my July 17, 2018 Order, I am unable
to determine the reliability of Dr. Abraham's opinions
sufficiently to exercise my gatekeeping function,
“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.” ECF 69 (citing 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. v. Carmichael, 526 U.S. 137, 139 (1999) (“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.”)). In his original
motion, Mathi did not seek to exclude only some of Dr.
Abraham's testimony, but sought to exclude the testimony
in its entirety, in part because the unexplained and
unsubstantiated material change in his position suggested
that all of his testimony was unreliable. ECF 64 at 13. My
July 17, 2018 order required a supplement to provide the
“methodology and/or rationale for [Dr. Abraham's]
conclusions, ” without topical limitation. ECF 69. Boon
Edam neither properly and timely designated Dr. Abraham as an
expert witness, pursuant to Fed.R.Civ.P. 26(a)(2), nor
supplemented the report he had provided as a witness for
FRBR, in accordance with this Court's order. Accordingly,
Boon Edam will not be permitted to call Dr. Abraham as an
expert witness at trial. See Fed. R. Civ. P.
37(c)(1) (providing that a party who “fails to provide
information or identify a witness as required by Rule 26(a) .
. . is not allowed to use that information or witness to
supply evidence . . . at trial”).
these reasons, Mathi's Motion in Limine to Preclude
Testimony from Dr. C.J. Abraham, ECF 72, is granted. Despite
the informal nature of this letter, it will be flagged as an
Opinion and docketed as an Order.
Stephanie A. Gallagher United ...