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Faure v. Las Cruces Medical Center, LLC

United States District Court, D. New Mexico

August 29, 2017

JOHN FAURE, as Personal Representative for the Wrongful Death Estate of GLORIA QUIMBEY, Deceased, Plaintiff,
v.
LAS CRUCES MEDICAL CENTER, LLC, doing business as Mountain View Regional Medical Center, ACCOUNTABLE HEALTHCARE STAFFING, INC., ACCOUNTABLE HEALTHCARE HOLDINGS CORPORATION, and RONALD LALONDE, Defendants, and LAS CRUCES MEDICAL CENTER, LLC, Cross Claimant,
v.
ACCOUNTABLE HEALTHCARE HOLDINGS CORPORATION, and ACCOUNTABLE HEALTHCARE STAFFING, INC., Cross Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court upon Defendant Accountable Healthcare Staffing, Inc., and Accountable Healthcare Holdings Corp.'s (“Accountable Defendants”) Motion to Exclude Portions of John C. Stein, Jr., M.D.'s Expert Testimony Related to Accountable (“Motion to Exclude”), filed on February 27, 2017. (Doc. 345). Plaintiff filed a response on March 16, 2017, and Accountable Defendants filed a reply on March 30, 2017. (Docs. 354, 364). Having read the Motion to Exclude, the accompanying briefs, and exhibits, the Court grants the Motion to Exclude.

         I. Background

         This is a wrongful death lawsuit concerning the death of Gloria Quimbey (“Ms. Quimbey”). Accountable Defendants move to exclude certain opinion evidence by Dr. John Stein, Jr. (“Dr. Stein”).

         Plaintiff intends to introduce the testimony of Dr. Stein to discuss the administration of tPA to Ms. Quimbey. tPA is a medication designed to dissolve blood clots. (Docs. 345-1, 345-2). In both his original and updated expert reports, Dr. Stein lists the evidence he considered in formulating his expert opinion. (Doc. 345-1) at 1, (Doc. 345-2) at 2-3. He next describes the chronology of events from the time Ms. Quimbey entered the Mountain View Regional Medical Center emergency room (“MVRMC ER”) on December 11, 2012, to her death on December 12, 2012. (Doc. 345-1) at 1-2, (Doc. 345-2) at 4-5. Dr. Stein then discusses the administration of tPA in general and the use of tPA in this case. (Doc. 345-1) at 2-3, (Doc. 345-2) at 5-6. Finally, Dr. Stein states his conclusions. (Doc. 345-1) at 3, (Doc. 345-2) at 6. With regard to Accountable Defendants, Dr. Stein did not disclose any opinions in the original or updated expert reports. (See Docs. 345-1, 345-2).

         II. Standard of Review

         Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity of expert witnesses. Expert witnesses must provide a report that contains, among other requirements, “(i) a complete statement of all opinions the witness will express and the basis and reason for them; [and] (ii) the facts or data considered by the witness in forming them.” Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii). Pursuant to Rule 26(a), a party may supplement expert reports, if the party discovers that a disclosure is “incomplete or incorrect” in a “material respect.” Id. at 26(e)(1)(A).

         III. Discussion

         Accountable Defendants now move the Court to exclude Dr. Stein's testimony in which he asserts an opinion regarding Accountable Defendants. (Doc. 345) at 1. Accountable Defendants contend that the testimony should be excluded because (1) the opinions were not timely disclosed and (2) Dr. Stein's opinions are not based on knowledge about Accountable Defendants. (Doc. 345) at 2.

         A. Dr. Stein's Deposition Testimony

         Supplementation of expert reports is required under the Federal Rules of Civil Procedure in certain circumstances. Specifically, supplementation is required when a “party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1)(A). With regard to the testimony of expert witnesses, this “duty to supplement extends both to information included in the report and to information given during the expert's deposition.” Id. at 26(e)(2). Although the Rule requires supplementation,

that provision does not give license to sandbag one's opponent with claims and issues which should have been included in the expert witness' report. To rule otherwise would create a system where preliminary reports could be followed by supplementary reports and there would be no finality to expert reports, as each side, in order to buttress its case or position, could ‘supplement' existing reports and modify opinions previously given. This practice would surely circumvent the full disclosure requirement implicit in Rule 26 and would interfere with the Court's ability to set case management deadlines, because new reports and opinions would warrant further consultation with one's own expert and virtually require new rounds of depositions.

Beller ex rel. Beller v. United States, 221 F.R.D. 689, 695 (D.N.M. 2003) (quoting Resolution Trust Corp. v. Gregory, No. CIV 94-0052 (D.N.M. 1995) (unpublished)).

         The timeliness of updates to expert reports depends on the purpose of the updates. Expert reports “intended solely to contradict or rebut evidence on the same subject matter identified by another party” must be disclosed “within 30 days after the other party's disclosure.” Fed.R.Civ.P. 26(a)(2)(D)(ii). Here, Plaintiff's expert disclosure deadline was March 17, 2016, and subsequently extended to March 24, 2016, at which time Plaintiff timely served Dr. Stein's original expert report. (Docs. 85, 117, 125). Expert disclosures for all Defendants were due on April 25, 2016. (Doc. 117). On September 27, 2016, Plaintiff served an updated expert report written by Dr. Stein. (Doc. 345-2). Neither the original nor the updated expert report contained any opinion regarding Accountable Defendants. In response to an inquiry from Accountable Defendants, Plaintiff's counsel stated that they did “not anticipate that Dr. Stein [would] be offering any additional opinions beyond those disclosed in his report.” (Doc. 345-3). However, during his deposition on January 10, 2017, Dr. Stein disclosed opinions regarding Accountable Defendants. (Doc. 345-4). Plaintiff admits that the Dr. Stein's opinion regarding Accountable Defendants was untimely and violated Rule 26(a)(2).

         B. Violation ...


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