United States District Court, D. New Mexico
JOHN FAURE, as Personal Representative for the Wrongful Death Estate of GLORIA QUIMBEY, Deceased, Plaintiff,
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,
ACCOUNTABLE HEALTHCARE HOLDINGS CORPORATION, and ACCOUNTABLE HEALTHCARE STAFFING, INC., Cross Defendants.
MEMORANDUM OPINION AND ORDER
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.
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”).
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).
Standard of Review
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).
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.
Dr. Stein's Deposition Testimony
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
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)).
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).