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Murphy v. United States

United States District Court, D. New Mexico

July 12, 2018

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,


         On May 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.[1] The Motion is fully briefed.[2] 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 Report.

         I. BACKGROUND

         Plaintiffs 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).[3] 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, [4] 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.

         On 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, [5] in 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).

         Plaintiffs 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.

         On 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.

         On 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.

         Plaintiffs 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 (Doc. 104).

         In 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 Defendant's Motion.


         “The 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 omitted).

         Parties 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).


         Defendant 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, [6] and yet Plaintiffs offered no justification ...

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