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Jager v. Andrade-Barraza

United States District Court, D. New Mexico

December 18, 2019

TODD JAGER, Plaintiff,
JOSE G. ANDRADE-BARRAZA, et al., Defendants.



         THIS MATTER is before the Court on Defendants'[1] 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.

         I. Background

         Plaintiff 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”[2] 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 intact. Id.

         The 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.

         Plaintiff 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.

         Defendants 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.

         II. Legal Standards

         A. Fed. R. Civ. P. 26(a)(2)

         For all 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 them;
(iii) any exhibits that will be used to summarize or support them;
(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 deposition; and
(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 omitted).

         B. Fed. R. Civ. P. 37(c)

         Federal 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)).

         C. Fed. R. Evid. 702

         Although Defendants do not explicitly reference Rule 702 or Daubert in their original motions to strike, [3] 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.[4]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 ...

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