United States District Court, D. New Mexico
ANDREW J. THOMSON, Plaintiff,
NATIONAL RAILROAD PASSENGER CORPORATION, doing business as AMTRAK, Defendant.
MEMORANDUM OPINION AND ORDER
National Railroad Passenger Corporation d/b/a Amtrak moves to
strike a late filed report by Plaintiff's expert, Dr.
Michael Roback. See ECF No. 123.
personal injury case, Mr. Thomson sues Amtrak for injuries he
sustained in 2014 when the train he was riding in violently
jolted. At the time, Mr. Thomson was using the restroom in
his private sleeper cabin. Because the toilet was poorly
attached, the jolt ripped it apart from the floor, projecting
Mr. Thomson into the metal cabin door. He sustained serious
injuries to his head, neck, back, and hands.
August 2017, the Court created a case schedule, which - after
some agreed upon extensions - included a February 28, 2018
deadline for Mr. Weathers to identify his expert witnesses.
Mr. Thomson met this deadline, and identified Dr. Roback, a
licensed physician and orthopedic surgeon, to provide
opinions about orthopedic injuries to Mr. Thomson's head,
neck, shoulder, and wrist. Dr. Roback conducted an orthopedic
evaluation of Mr. Thomson on January 4, 2018. Based on that
evaluation, Dr. Roback concluded in his expert report that
Mr. Thomson is “100% permanently disabled” and
that the Amtrak related injury prevented him from doing
activities required for gainful employment, such as standing,
walking or sitting for a normal duration. ECF No. 97-2 at 33.
He reported that before the train incident, Mr. Thomson was
fully and independently able to clean his home, cook, do
laundry, shop for groceries, and do home repairs and yard
work. Id. at 11. Since the accident, though, Mr.
Thomson cannot perform any of those activities without help.
See id. Although Dr. Roback did identify Mr.
Thomson's injuries and life limitations in light of the
injuries, nowhere in Dr. Roback's report did he quantify
Mr. Thomson's medical damages. A few months later, in
June 2018, Amtrak deposed Dr. Roback in California about the
content of his expert report.
throughout the summer of 2018, the discovery deadline was
pushed back numerous times, with a final deadline of November
8, 2018. The Court imposed a mid-November 2018 deadline for
filing discovery-related and dispositive motions. Amtrak met
those deadlines and moved to exclude two of Mr. Thomson's
expert witnesses under Daubert (one of which was Dr.
Roback) and moved for summary judgment.
forward to August 7, 2019, the Court vacated the October 21,
2019 jury trial setting. Fourteen days later, on August 21,
2019 - roughly a year and a half after the expert witness
disclosure deadline - Mr. Thomson served Amtrak with a
supplemental orthopedic report by Dr. Roback. In that report,
Dr. Roback, for the first time, came up with hard numbers of
Mr. Thomson's future medical damages. Mr. Thomson says
that he disclosed these medical damages as part of his
ongoing duty under the Federal Rules of Civil Procedure to
“supplement or correct its disclosure … if the
party learns that in some material respect the disclosure
… is incomplete or incorrect, and if the additional or
corrective information has not otherwise been known to the
other parties during the discovery process or in
writing.” Fed.R.Civ.P. 26(e)(1)(A). On September 10,
2019, Amtrak responded by moving to strike the supplement.
Amtrak argues that Dr. Roback's medical damages are
entirely new opinions on Amtrak's damages exposure.
Amtrak concedes that Dr. Roback did give a “prior
opinion that [Mr. Thomson] will incure [sic] future medical
expenses, ” ECF No. 123, but argues that his new
calculations “bolster an existing opinion or introduce
a new opinion.” ECF No. 132. If his calculations are
admitted into evidence, Amtrak says it will have to get a
rebuttal expert, do another deposition, and amend its already
filed Daubert motion.
Standard of Review
Rule of Civil Procedure 26(a)(2)(B) provides that an expert
witness's report should contain “a complete
statement of all opinions” the expert will express.
Fed.R.Civ.P. 26(a)(2)(B). “The purpose of rule 26(a)
expert disclosures is ‘not only to identify the expert
witness, but also ‘to set forth the substance of the
direct examination.'” Guidance Endodontics, LLC
v. Dentsply Int'l, Inc., No. CIV 08-1101 JB/RLP,
2009 WL 3672502, at *3-4 (D.N.M. Sept. 29, 2009) (quoting
Jacobsen v. Deseret Book Co., 287 F.3d 936, 953
(10th Cir.2002)). “Such 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 at 953 (citation and internal
quotation marks omitted). “Pursuant to rule 26(e), a
party is under a duty to supplement a rule 26(a)(2)(B) expert
report ‘if the party learns that in some material
respect the information disclosed is incomplete and if the
additional or corrective information has not otherwise been
made known to the other parties....'” Guidance
Endodontics, LLC, 2009 WL 3672502, at *3 (quoting
Fed.R.Civ.P. 26(e)). “This duty extends to information
included in expert reports and given during expert
depositions.” In re Complaint of C.F. Bean
L.L.C., 841 F.3d 365, 371 (5th Cir. 2016) (citing
“a party may not use a supplemental report to disclose
information that should have been disclosed in the initial
expert report, thereby avoiding the requirement for a timely
and completely expert witness report.” 6 Moore's
Federal Practice § 26.131 (3d Ed.). Supplementation
“means correcting inaccuracies, or filling the
interstices of an incomplete report based on information that
was not available at the time of the initial
disclosure.” Reinsdorf v. Skechers U.S.A., 922
F.Supp.2d 866, 880 (C.D. Cal. 2013) (quotation omitted).
Hence, “[a] party may not use the pretext of
supplementation to reopen discovery, close gaps in their
evidence, and essentially generate new expert reports.”
Hall v. ConocoPhillips, 248 F.Supp.3d 1177, 1181
(W.D. Okla. 2017). “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.” Beller ex
rel. Beller v. United States, 221 F.R.D. 696, 701
(D.N.M. 2003). Moreover, in the context of experts
specifically, supplementation is not allowed “when the
party's motive is to wholly rework [a] damages claim or
change the substance of their contentions.” Capitol
Justice LLC v. Wachovia Bank, N.A., 706 F.Supp.2d 34, 39
(D.D.C. 2009) (citations and quotation marks omitted).
these standards, a comparison of Dr. Roback's second
report shows that it is not supplemental to his first one.
First of all, Mr. Thomson points to no
“incomplete” or “inaccurate”
information in Dr. Roback's first report that his second
one is meant to supplement. Of course, both reports share the
same basic subject matter - Mr. Thomson's injuries. But
their similarities end there. The second report's
introduces a damages calculation that, on the low-end, put
Amtrak's damages exposure in the
quarter-of-a-million-dollars range. Second, Dr. Roback
presumably based his damages conclusions on information he
knew about Mr. Thomson at the time he examined him in January
2018. This is therefore not a case of correcting
miscalculations, but instead introducing them for the first
time. Cf. Wachovia Bank, N.A., 706 F.Supp.2d at 39
(expert's second report was supplemental where it did not
“wholly rework” a damages claim, but only
produced a more accurate report.) Thus, Dr. Roback's
second report is not a supplement.
Mr. Thomson's failure to comply with Rule 26(e)'s
strictures does not automatically mean that Dr. Roback's
second report must be stricken, because courts focus on the
prejudicial effect of the late disclosure. Under Fed.R.Civ.P.
37, “[i]f 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 a trial,
unless the failure was substantially justified or is
harmless.” Fed.R.Civ.P. 37(c)(1). “[T]he
determination of whether a Rule 26(a) [or (e)] violation is
justified or harmless is entrusted to the broad discretion of
the district court.” HCG Platinum, LLC v. Preferred
Prod. Placement Corp., 873 F.3d 1191, 1200 (10th Cir.
2017) (citation omitted). The Rule 37(c)(1) inquiry
“depends upon several factors that a district court
should consider in exercising its discretion.”
Id. (citation omitted) (emphasis removed). These
factors include: “(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 Life Ins.
Co., 170 F.3d 985, 993 (10th Cir. 1999).
Mr. Thomson has not complied with the rules, he has disrupted
this case's efficient management, especially since Mr.
Thomson and his expert had numerous opportunities to disclose
the damages calculation during the extended periods for
discovery. Moreover, Amtrak is certainly right that the late
disclosure deprived Amtrak of its ability to prepare for
cross-examination and rebuttal of Dr. Roback and to decide
whether to designate its own expert. However, Amtrak's
request for the extreme sanction of excluding evidence is
unwarranted. The Tenth Circuit has instructed district courts
to consider an “array of other sanctions, ”
HCG Platinum, LLC, 873 F.3d at 1203, in their
arsenals before excluding evidence. An application of the
Woodworker's Supply factors shows that all four
factors weigh in favor of admitting the late report. First,
that Mr. Thomson would seek medical damages could not have
come as a surprise to Amtrak. His complaint put Amtrak on
notice that he sought compensation and past and future
medical expenses. Second, the prejudice to Amtrak from the
late disclosure can be cured. Amtrak can re-depose Dr.
Roback, submit its own expert report if necessary, and renew
its Daubert motion. Third, although re-opening
expert discovery will have the effect of disrupting this
case, no trial date is set, so the harm to Mr. Thomson of
excluding his evidence outweighs any disruption to Amtrak.
Fourth, the Court detects no bad-faith on Mr. Thomson's
or his expert's part.