United States District Court, D. New Mexico
DENNIS MURPHY, Guardian Ad Litem for N.E.D., an incapacitated minor; JACOB DOTSON; DOMINIQUE BILLY, individually and as next friend of I.C. and S.D., minors, Plaintiffs,
THE UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
28, 2018, Defendant United States of America
(“Defendant” or “United States”)
filed a Motion to Exclude Plaintiffs' Supplemental Expert
Report of Nurse Sharon Guerra (Motion) (Doc. 104). Plaintiffs
Dennis Murphy, Guardian Ad Litem for N.E.D., Jacob Dotson,
and Dominique Billy, individually and as next of friend of
minors I.C. and S.D. (Plaintiffs) filed their Third
Supplemental Expert Witness Disclosures and Reports on May,
11, 2018, which included a Supplemental Report authored by
expert witness Sharon Guerra, RN. See Third Supp.
Expert Witness Disclosures, Ex. A to Def. Mot. (Doc. 104-1);
Supplemental Report, Ex. B to Def. Mot. (Doc. 104-2). In its
Motion, Defendant asks the Court to exclude Ms. Guerra's
Supplemental Report and related testimony as
untimely. The Motion is fully briefed. The Court having
considered the parties' briefing, arguments, and relevant
law will deny the Motion, but will afford Defendant an
opportunity to depose Ms. Guerra about her Supplemental
filed suit against Defendant seeking damages for alleged
medical negligence, negligent training and supervision, and
personal injuries under the Federal Tort Claims Act (FTCA)
and New Mexico state law. See First Amended
Complaint (Doc. 51). Plaintiffs' claims arise out of
emergency medical treatment rendered to minor child N.E.D. in
February 2016 at the Gallup Indian Medical Center (GIMC), an
Indian Health Services facility in Gallup, New Mexico.
Plaintiffs allege, among other things, that Nurse Kelli J.
Coggins,  Respiratory Therapist Ella Begay, and
other GIMC medical personnel failed to properly protect and
monitor N.E.D.'s airway following a rapid sequence
induction and intubation. See Amended Complaint
¶ 36. Plaintiffs claim this ultimately led to
deprivation of oxygen for a period sufficient to cause N.E.D.
to suffer a permanent hypoxic brain injury. See id.
October 17, 2018, U.S. Magistrate Judge Jerry H. Ritter
entered a Scheduling Order setting the deadline for
completion of discovery as April 16, 2018 and the deadline
for Plaintiffs to submit expert witness disclosures and
reports by January 16, 2018. (Doc. 30). Plaintiffs timely
filed their Preliminary Expert Witness Disclosures in
accordance with the Scheduling Order. See
Certificate of Service (Doc. 52). Plaintiffs' preliminary
disclosure identified Nurse Sharon Guerra as an expert
witness, and provided Defendant with Ms. Guerra's expert
report dated December 20, 2017, in which she rendered
opinions about the conduct of Nurse Kelli Coggins and
respiratory therapist Ella Begay in their treatment of N.E.D.
See Plaintiffs' Preliminary Expert Witness
Disclosures, Ex. C to Def. Mot. (Doc. 104-3); Guerra Expert
Report 12/20/17, Ex. D to Def. Mot. (Doc. 104-4). Plaintiffs
included a footnote caveat based on the addition of two party
defendants, Nurse Coggins and Next Medical Staffing,
which they reserved the right to supplement the proffered
expert witness testimony, as necessary, based on “newly
discovered evidence.” See Ex. C to Def. Mot.
at n.1 (Doc. 104-3). There is no dispute that the initial
expert witness disclosure complied with the requirements of
Federal Rule of Civil Procedure 26(a)(2)(B).
deposed Kelli Coggins on February 20, 2018. See Mot.
at 3 (Doc. 104). And on March 13, 2018, the United States was
substituted for Nurse Coggins after the United States
determined that it would provide FTCA coverage over Ms.
Coggins' personal services contract. (Doc. 66). On March
19, 2018, the Court entered an order granting the
parties' stipulated motion to dismiss claims against Next
Medical Staffing, LLC. (Doc. 70), leaving the United States
as the only defendant.
March 1, 2018, the day Defendant was supposed to disclose its
own expert witnesses, Defendant instead filed a Motion to
Extend Pretrial Deadlines (Doc. 60), which included a request
to extend the deadline by which to file its expert witness
disclosures. Defendant requested the additional time in part
to “evaluate Ms. [Coggins'] testimony and to
evaluate the need for expert witness testimony to address the
issues raised in her deposition.” See Mot. to
Extend Deadlines at ¶ 8 (Doc. 60). U.S. Magistrate Judge
Ritter granted Defendant's request and entered an order
extending the deadline for Defendant to submit expert witness
disclosures until April 6, 2018 with expert reports due by
April 10, 2018. See Amended Scheduling Order (Doc.
79). Magistrate Judge Ritter also extended the discovery
deadline to May 7, 2018. See id.
March 15, 2018, counsel for both parties exchanged email
communications about setting a date for deposing Nurse Sharon
Guerra. See 03/15/18 Email, Ex. E to Def. Mot. (Doc.
104-5). The parties agreed to hold Ms. Guerra's
deposition on April 13, 2018 at 9:00 a.m.
filed their First Supplemental Expert Disclosure on March 30,
2018. See Certificate of Service (Doc. 76).
According to the United States, this disclosure included
additional testimony and opinions from Plaintiffs' Life
Care Planner. See Mot. at 3 (Doc. 104). On April 2,
2018, Plaintiffs filed a Second Supplemental Expert
Disclosure, see Certificate of Service (Doc. 80)
which, according to Defendant, included additional opinions
from Plaintiffs' expert economist. See Mot. at 4
accordance with the April 2, 2018 Amended Scheduling Order
the United States filed its Expert Witness Disclosures on
April 6, 2018, see Certificate of Service (Doc. 82)
and its expert reports on April 10, 2018, see
Certificate of Service (Doc. 83). On April 12, 2018, counsel
for both parties again exchanged email communications
regarding Ms. Guerra's deposition. See 04/12/18
Email, Ex. F to Def. Mot. (Doc. 104-6). Plaintiffs'
counsel informed counsel for the United States that Ms.
Guerra was no longer available the following day at 9:00 a.m.
due to a scheduling conflict with her new employment, and
asked if 3:00 p.m. would work instead. See Id.
Counsel for the United States responded that she was not
available at that time and cancelled the deposition. See
Id. The deposition was not rescheduled prior to the May
7, 2018 discovery deadline. See Mot. at 4 (Doc.
104). On May 11, 2018, Plaintiffs filed their Third
Supplemental Expert Witness Disclosures, which included Ms.
Guerra's Supplemental Report, the subject of
district court has wide discretion in its regulation of
pretrial matters.” Si-Flo, Inc. v. SFHC, Inc.,
917 F.2d 1507, 1514 (10th Cir. 1990). Federal Rule of Civil
Procedure 26(a)(2)(B)(i) requires the disclosure of an expert
report, which “must contain… a complete
statement of all opinions the witness will express and the
basis and reasons for them.” Under Rule 26(a)(2)(D) the
Court may, as it did in this case, set a time by which the
parties must submit their experts' reports. The Tenth
Circuit has noted that “[s]uch disclosure is necessary
to allow the opposing party a reasonable opportunity to
prepare for effective cross examination and perhaps arrange
for expert testimony from other witnesses.”
Jacobsen v. Deseret Book Co., 287 F.3d 936, 953
(10th Cir. 2002) (internal quotation marks and citation
are under an ongoing obligation to supplement a Rule
26(a)(2)(B) expert report “if the 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…” Fed.R.Civ.P. 26(e). Any supplemental
information must be disclosed “at least 30 days before
trial” unless the Court orders otherwise. See
Fed. R. Civ. P. 26(a)(3) and 26(e). “If a party fails
to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at trial, unless the failure was substantially
justified or is harmless.” Fed.R.Civ.P. 37(c)(1).
Although a court need not make explicit findings regarding
the existence of a substantial justification or the
harmlessness of a Rule 26(a) violation, courts generally
consider four factors: “(1) the prejudice or surprise
to the party against whom the testimony is offered; (2) the
ability of the party to cure the prejudice; (3) the extent to
which introducing such testimony would disrupt the trial; and
(4) the moving party's bad faith or willfulness.”
Woodworker's Supply, Inc. v. Principal Mut. Life Ins.
Co., 170 F.3d 985, 993 (10th Cir. 1999).
argues that the Court should exclude Nurse Guerra's
Supplemental Report and any opinion associated with that
report, claiming it is prejudiced by the late disclosure,
after the discovery deadline passed, thereby foreclosing the
opportunity to depose Nurse Guerra about these additional
opinions. See Mot. at 4 (Doc. 104). The United
States argues that because of scheduling restraints and a
belief that all of Nurse Guerra's opinions were set forth
in Plaintiffs' prior disclosure and Nurse Guerra's
initial expert report, it did not seek to reschedule Nurse
Guerra's deposition after it was cancelled. Id.
Defendant argues that Plaintiffs' failure to make Nurse
Guerra available for deposition at the agreed upon date and
time, followed by late disclosure of her Supplemental Report
after the close of discovery when the United States could no
longer schedule a deposition, demonstrates that Plaintiffs
acted in bad faith. Id. at 8. Defendant notes that
the report was dated March 26, 2018,  and yet Plaintiffs offered
no justification ...