United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS'
MOTIONS TO STRIKE PLAINTIFF'S EXPERT REPORTS
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendants' concurrent
motions to strike the expert reports of John R. Reid, M.D.
(doc. 128) and Farhan Taghizadeh, M.D. (doc.
130). Defendants ask the Court to strike both reports
pursuant to Fed.R.Civ.P. 37(c), for their failure to meet the
requirements of Fed.R.Civ.P. 26(a). Having reviewed the
parties' briefing (docs. 134, 135, 140, 142) and the
expert reports (docs. 125-6, 125-7), and
having heard oral argument from the parties (doc.
157), the Court finds that both contested expert reports
are deficient in fulfilling the requirements of Rule 26(a).
However, the Court finds that the deficiencies in the
reports, except where otherwise noted below, are harmless and
do not compel striking of the expert reports or preclusion of
the experts' testimony. Defendants' motions to strike
will accordingly be denied.
filed the currently operative Third Amended Complaint in this
action on May 24, 2019. Doc. 90. At the time of all
relevant events Plaintiff was incarcerated in Doña Ana
County, New Mexico, at the Southern New Mexico Correctional
Facility (“SNMCF”). Id. at 1 ¶ 1,
11 ¶ 69. On May 31, 2016, Plaintiff was punched in the
face by a fellow inmate. Id. at 11 ¶ 70. He was
taken to the SNCMF infirmary and, the following day, was
transported to Memorial Medical Center in Las Cruces for
x-rays of his facial bones. Id. at 12 ¶ 71, 75.
On June 3, 2016, SNMCF medical staff received the
radiologist's report, which noted “[d]iastases of
the frontozygomatic suture” and recommended that a CT
scan be performed for further evaluation. See doc.
133-1 at 4, 26:11-14. On June 7, 2016, Defendant Klinger
requested approval for the recommended CT scan from Defendant
Centurion Correctional Healthcare of New Mexico
(“CCH”). Doc. 90 at 14 ¶ 88. The
request was marked “routine” rather than
“urgent.” Id. On June 24, 2016,
approximately three weeks after SNMCF staff received the
results of the x-ray, a maxillofacial CT scan was performed
on Plaintiff. Id. at 14 ¶ 93. It revealed,
inter alia, a “quadripod fracture” of
the left orbit and “associated severe deformity of the
orbit.” Id. However, the report noted that the
extraocular muscles, optic globe, and optic nerve appeared
timeline of events following Plaintiff's first CT scan is
to some degree disputed, and the exact details are
unimportant for purposes of the instant motions. However,
both parties agree that on September 29, 2016, Plaintiff met
for the first time with surgical specialist Dr. Liat Shama.
Doc. 125 at 5 ¶ 21; doc. 133 at 10-11.
Upon request by Dr. Shama, Plaintiff received a second CT
scan on October 20, 2016, which confirmed the results of the
first. Doc. 90 at 19 ¶ 122; doc.
125-4. Plaintiff met again with Dr. Shama on December 1,
2016. Doc. 125 at 6 ¶ 24; doc. 133 at
11. At that time, options for repair included refracture of
the bones in Plaintiff's face or placement of an implant.
Doc. 125 at 6 ¶ 24; doc. 133 at 11.
Both options involved substantial risk of complications.
See doc. 125 at 6 ¶ 27; doc. 133 at
12. Plaintiff elected against further treatment because he
was concerned about undergoing surgery while still
incarcerated and was due for release in several months.
Doc. 125 at 6 ¶ 28; doc. 133 at 13.
initiated suit in this Court on August 3, 2018. In his Third
Amended Complaint, Plaintiff alleges that his facial injuries
were inadequately treated by SNMCF medical staff, resulting
in, inter alia, pain, disfigurement, and loss of
chance for a better outcome. See generally doc. 90.
Following commencement of discovery, Plaintiff disclosed the
expert report of Dr. John Reid to Defendants on February 7,
2019. See doc. 128 at 3-4; doc. 65.
Plaintiff disclosed Dr. Farhan Taghizadeh's expert report
on June 5, 2019, the disclosure deadline for Plaintiff's
experts. See doc. 130 at 4; doc. 94;
doc. 75. Defendants deposed Dr. Taghizadeh on
September 13, 2019, doc. 150, and Dr. Reid on
September 14, 2019, doc. 149.
filed the instant motions to strike on October 15, 2019.
Docs. 128, 130. Though the arguments differ
slightly between the two motions, Defendants' essential
contentions are that both expert witnesses (1) failed to
fully state the opinions that would be revealed on direct
examination, (2) failed to state the bases or reasons for
those opinions, (3) failed to specify the facts or data used
in forming those opinions, and (4) are not qualified to
testify as experts regarding Plaintiff's medical care.
See generally docs. 128, 130. Plaintiff
responded on October 28, 2019, arguing that their
experts' reports are adequate under Rule 26(a) and, in
the alternative, that any error is harmless because
Defendants had the opportunity to fully develop the
experts' opinions during their depositions. See
generally docs. 134, 135. The Court held a
hearing on the motions on November 25, 2019. Doc.
157. The motions to strike are now before the Court.
Fed. R. Civ. P. 26(a)(2)
witnesses “retained or specially employed to provide
expert testimony, ” the Federal Rules of Civil
Procedure require a party's Rule 26(a)(1) disclosures to
be accompanied by a written report. Fed.R.Civ.P. 26(a)(2)(B).
The written report must be prepared and signed by the witness
and must contain the following:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). The general purpose of these
requirements is “to allow the opposing party ‘a
reasonable opportunity to prepare for effective cross
examination and perhaps arrange for expert testimony from
other witnesses.'” Henderson v. Amtrak,
412 Fed.Appx. 74, 80-81 (10th Cir. 2011) (unpublished)
(quoting Jacobsen v. Deseret Book Co., 287 F.3d 936,
953 (10th Cir. 2002)). In other words, an adequate Rule
26(a)(2) report should “avoid unfair surprise to the
opposing party.” Heller v. Dist. of Columbia,
801 F.3d 264, 270 (D.C. Cir. 2015) (quotation and citation
Fed. R. Civ. P. 37(c)
Rule of Civil Procedure 37 governs sanctions for failure to
make disclosures or cooperate in discovery. Germane to
Defendants' motions, the rule states:
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 a trial, unless the failure was
substantially justified or is harmless. In addition to or
instead of this sanction, the court, on motion and after
giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and (C)
may impose other appropriate sanctions[.]
Fed. R. Civ. P. 37(c)(1). “The determination of whether
a Rule 26(a) violation is justified or harmless is entrusted
to the broad discretion of the district court.”
Woodworker's Supply, Inc. v. Principal Mut. Life Ins.
Co., 170 F.3d 985, 993 (10th Cir. 1999) (quoting
Mid- America Tablewares, Inc. v. Mogi Trading Co.,
100 F.3d 1353, 1363 (7th Cir. 1996)). Though a district court
need not make “explicit findings” concerning
substantial justification or harmlessness, it should consider
the following factors in exercising its broad discretion:
“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.” Id.
(citing United States v. $9, 041, 598.68, 163 F.3d
238, 252 (5th Cir. 1998) and Newman v. GHS Osteopathic
Inc., 60 F.3d 153 (3d Cir. 1995)).
Fed. R. Evid. 702
Defendants do not explicitly reference Rule 702 or
Daubert in their original motions to strike,
some of the issues raised fall properly within the province
of Fed.R.Evid. 702, rather than Fed.R.Civ.P. 26(a). In
particular, Defendants allege that the medical expertise of
Dr. Reid and Dr. Taghizadeh does not qualify them to testify
as experts about the medical care received by Plaintiff in
the correctional setting.See doc. 128 at 10; doc.
130 at 10. Because the only requirement of Rule 26(a)
relating to qualification is the requirement that a witness
disclose his qualifications-something that neither
party disputes Dr. Reid and Dr. Taghizadeh have done, by
attaching their respective curricula vitae to their
reports-the Court construes Defendants' overall argument
regarding qualification as one based on Rule ...