UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Lynette Maryea
v. Civil No. 13-cv-318-LM Opinion No. 2015 DNH 217 Warren Dowaliby, et al.
O R D E R
Plaintiff, Lynette Maryea, is a former inmate at the
Strafford County House of Corrections. Maryea brings state and
federal claims arising from injuries she sustained when another
inmate assaulted her. Before the court is defendants’ motion to
exclude two expert witnesses Maryea disclosed after the deadline
for doing so had passed. Maryea objects.
Discussion
Defendants move to exclude the opinions of two of Maryea’s
experts: Dr. Mark Koris and Stephen Powers. Defendants state
that both experts and their reports were not disclosed until
September 17, 2015, more than three months after the deadline in
the scheduling order. In response, Maryea concedes that she did
not disclose either expert or provide their reports until after
the deadline in the scheduling order, but she argues that her
failure to do so is substantially justified and harmless. Federal Rule of Civil Procedure 26 requires a party to
“disclose to the other parties the identity of any witness it
may use at trial to present [expert opinion testimony].” Fed.
R. Civ. P. 26(a)(2)(A). “If a party fails to provide
information or identify a witness as required by Rule 26(a)
. . ., 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).
Thus, under Rule 37, “the baseline rule is that the
required sanction in the ordinary case is mandatory preclusion”
of late-disclosed information. Harriman v. Hancock Cty., 627
F.3d 22, 29 (1st Cir. 2010) (alteration and quotation marks
omitted). In determining whether the court should impose that
sanction, the First Circuit has suggested considering several
factors, including “the sanctioned party’s justification for the
late disclosure; the opponent-party’s ability to overcome its
adverse effects (i.e., harmlessness); the history of the
litigation; the late disclosure’s impact on the district court’s
docket; and the sanctioned party’s need for the precluded
evidence.” Id. (citing Esposito v. Home Depot U.S.A., Inc., 590
F.3d 72, 79 (1st Cir. 2009) (further citations omitted)). “[I]t
is the obligation of the party facing sanctions for belated
2 disclosure to show that its failure to comply with the Rule was
either justified or harmless and therefore deserving of some
lesser sanction.” Wilson v. Bradlees of New England, Inc., 250
F.3d 10, 21 (1st Cir. 2001).
Here, none of these factors suggests that this court should
eschew the “baseline rule” and impose a remedy other than
precluding the challenged witnesses.
I. Justification
Maryea argues that her late disclosure is substantially
justified because: (1) her experts rely on information from her
deposition, the transcript of which was not available until
after her expert disclosure deadline, and (2) both of her
experts experienced medical issues, which “precluded them from
working during the months leading up to and following the
disclosure deadline.” Pl.’s Obj. (doc. no. 10) at ¶ 6. The
court finds both of these justifications unpersuasive.
Even assuming Maryea’s deposition transcript was
unavailable until after the deadline for the disclosure of
experts,1 the lack of access to the deposition transcript does
Defendants assert in their reply that their counsel 1
received Volume 1 of 2 of Maryea’s deposition transcript on March 25, 2015, several months prior to Maryea’s expert disclosure deadline, and that Volume 1 discussed both medical and liability issues. Defs.’ Reply (doc. no. 12) at ¶ 12.
3 not justify the late disclosure. Maryea does not state she was
unavailable to her experts or proffer reasons why her experts
could not interview her, rather than wait for her deposition
transcript.
With regard to the health of her experts, Maryea offers no
reason why, in light of her experts’ health issues, she did not
seek to amend the discovery plan to accommodate these delays.
See, e.g., Fortin v. Town of Wells, Civ. No. 09-179-P-S, 2009 WL
3327200, at *3 n.2 (D. Me. Oct. 13, 2009) (“If the party
legitimately needs more time [to designate expert witnesses], a
motion to amend the scheduling order must be submitted, before
the deadline set by the scheduling order.”). Indeed, Maryea did
not raise any issues concerning her expert disclosure until
three months after the deadline, and then disclosed her experts
and their undated reports only after a discussion between her
counsel and the defendants’ counsel. Therefore, Maryea has not
shown that her late disclosure of experts was justified.
II. Harmlessness
Maryea argues that her late disclosure is harmless because
“[a]ny perceived prejudicial effect of permitting Plaintiff’s
late expert disclosures can be avoided with a simple adjustment
of the current discovery plan and summary judgment deadlines to
allow the Defendants an opportunity to review the disclosures,
4 make any challenges they may have, and obtain their own
experts.” Doc. no. 10 at ¶ 13. The court disagrees. Late
disclosure of an expert is not harmless when it occurs after
“the deadline [for the other party] to designate his own
expert.” Westerdahl v. Williams, 276 F.R.D. 405, 410 (D.N.H.
2011); see also Goldenson v. Steffens, No. 2:10-cv-440-JAW, 2012
WL 1951833, at *6 (D. Me. May 30, 2012) (noting that when late
disclosure of an expert “require[s] an extension of remaining
scheduling order deadlines . . . .[the] impact, in itself,
constitutes a harm and weighs against the allowance of the late
designation”).
Further, even if postponement of certain discovery
deadlines would allow defendants to find an expert in response
to Maryea’s late disclosure, defendants should not be forced to
seek “additional discovery necessitated solely by [Maryea’s]
unjustifiably late disclosures.” Contour Design, Inc. v. Chance
Mold Steel Co., Ltd., No. 09-cv-451-JL, 2011 WL 4527404, at *8
(D.N.H. Sept. 28, 2011). “If continuances were granted as a
matter of course for violations of Rule 26[], the rule could
always be disregarded with impunity.” Id. (quoting Thibeault v.
Square D Co., 960 F.2d 239, 246 (1st Cir. 1992) (internal
quotation marks omitted)).
5 Therefore, Maryea has not demonstrated that her late
disclosure of her experts was harmless.
III. Other Factors
The remaining factors do not weigh in favor of deviating
from the “baseline rule” that late-disclosed experts be
precluded. Although defendants do not suggest that Maryea has
missed other discovery deadlines, the parties have already
amended the discovery plan to postpone certain deadlines,
including the deadline for Maryea to designate experts, on two
separate occasions.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Lynette Maryea
v. Civil No. 13-cv-318-LM Opinion No. 2015 DNH 217 Warren Dowaliby, et al.
O R D E R
Plaintiff, Lynette Maryea, is a former inmate at the
Strafford County House of Corrections. Maryea brings state and
federal claims arising from injuries she sustained when another
inmate assaulted her. Before the court is defendants’ motion to
exclude two expert witnesses Maryea disclosed after the deadline
for doing so had passed. Maryea objects.
Discussion
Defendants move to exclude the opinions of two of Maryea’s
experts: Dr. Mark Koris and Stephen Powers. Defendants state
that both experts and their reports were not disclosed until
September 17, 2015, more than three months after the deadline in
the scheduling order. In response, Maryea concedes that she did
not disclose either expert or provide their reports until after
the deadline in the scheduling order, but she argues that her
failure to do so is substantially justified and harmless. Federal Rule of Civil Procedure 26 requires a party to
“disclose to the other parties the identity of any witness it
may use at trial to present [expert opinion testimony].” Fed.
R. Civ. P. 26(a)(2)(A). “If a party fails to provide
information or identify a witness as required by Rule 26(a)
. . ., 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).
Thus, under Rule 37, “the baseline rule is that the
required sanction in the ordinary case is mandatory preclusion”
of late-disclosed information. Harriman v. Hancock Cty., 627
F.3d 22, 29 (1st Cir. 2010) (alteration and quotation marks
omitted). In determining whether the court should impose that
sanction, the First Circuit has suggested considering several
factors, including “the sanctioned party’s justification for the
late disclosure; the opponent-party’s ability to overcome its
adverse effects (i.e., harmlessness); the history of the
litigation; the late disclosure’s impact on the district court’s
docket; and the sanctioned party’s need for the precluded
evidence.” Id. (citing Esposito v. Home Depot U.S.A., Inc., 590
F.3d 72, 79 (1st Cir. 2009) (further citations omitted)). “[I]t
is the obligation of the party facing sanctions for belated
2 disclosure to show that its failure to comply with the Rule was
either justified or harmless and therefore deserving of some
lesser sanction.” Wilson v. Bradlees of New England, Inc., 250
F.3d 10, 21 (1st Cir. 2001).
Here, none of these factors suggests that this court should
eschew the “baseline rule” and impose a remedy other than
precluding the challenged witnesses.
I. Justification
Maryea argues that her late disclosure is substantially
justified because: (1) her experts rely on information from her
deposition, the transcript of which was not available until
after her expert disclosure deadline, and (2) both of her
experts experienced medical issues, which “precluded them from
working during the months leading up to and following the
disclosure deadline.” Pl.’s Obj. (doc. no. 10) at ¶ 6. The
court finds both of these justifications unpersuasive.
Even assuming Maryea’s deposition transcript was
unavailable until after the deadline for the disclosure of
experts,1 the lack of access to the deposition transcript does
Defendants assert in their reply that their counsel 1
received Volume 1 of 2 of Maryea’s deposition transcript on March 25, 2015, several months prior to Maryea’s expert disclosure deadline, and that Volume 1 discussed both medical and liability issues. Defs.’ Reply (doc. no. 12) at ¶ 12.
3 not justify the late disclosure. Maryea does not state she was
unavailable to her experts or proffer reasons why her experts
could not interview her, rather than wait for her deposition
transcript.
With regard to the health of her experts, Maryea offers no
reason why, in light of her experts’ health issues, she did not
seek to amend the discovery plan to accommodate these delays.
See, e.g., Fortin v. Town of Wells, Civ. No. 09-179-P-S, 2009 WL
3327200, at *3 n.2 (D. Me. Oct. 13, 2009) (“If the party
legitimately needs more time [to designate expert witnesses], a
motion to amend the scheduling order must be submitted, before
the deadline set by the scheduling order.”). Indeed, Maryea did
not raise any issues concerning her expert disclosure until
three months after the deadline, and then disclosed her experts
and their undated reports only after a discussion between her
counsel and the defendants’ counsel. Therefore, Maryea has not
shown that her late disclosure of experts was justified.
II. Harmlessness
Maryea argues that her late disclosure is harmless because
“[a]ny perceived prejudicial effect of permitting Plaintiff’s
late expert disclosures can be avoided with a simple adjustment
of the current discovery plan and summary judgment deadlines to
allow the Defendants an opportunity to review the disclosures,
4 make any challenges they may have, and obtain their own
experts.” Doc. no. 10 at ¶ 13. The court disagrees. Late
disclosure of an expert is not harmless when it occurs after
“the deadline [for the other party] to designate his own
expert.” Westerdahl v. Williams, 276 F.R.D. 405, 410 (D.N.H.
2011); see also Goldenson v. Steffens, No. 2:10-cv-440-JAW, 2012
WL 1951833, at *6 (D. Me. May 30, 2012) (noting that when late
disclosure of an expert “require[s] an extension of remaining
scheduling order deadlines . . . .[the] impact, in itself,
constitutes a harm and weighs against the allowance of the late
designation”).
Further, even if postponement of certain discovery
deadlines would allow defendants to find an expert in response
to Maryea’s late disclosure, defendants should not be forced to
seek “additional discovery necessitated solely by [Maryea’s]
unjustifiably late disclosures.” Contour Design, Inc. v. Chance
Mold Steel Co., Ltd., No. 09-cv-451-JL, 2011 WL 4527404, at *8
(D.N.H. Sept. 28, 2011). “If continuances were granted as a
matter of course for violations of Rule 26[], the rule could
always be disregarded with impunity.” Id. (quoting Thibeault v.
Square D Co., 960 F.2d 239, 246 (1st Cir. 1992) (internal
quotation marks omitted)).
5 Therefore, Maryea has not demonstrated that her late
disclosure of her experts was harmless.
III. Other Factors
The remaining factors do not weigh in favor of deviating
from the “baseline rule” that late-disclosed experts be
precluded. Although defendants do not suggest that Maryea has
missed other discovery deadlines, the parties have already
amended the discovery plan to postpone certain deadlines,
including the deadline for Maryea to designate experts, on two
separate occasions. The court has also granted the parties’ two
requests to continue the trial date. Thus, the history of the
litigation does not weigh in favor of imposing a lesser
sanction. See, e.g., AVX Corp. v. Cabot Corp., 252 F.R.D. 70,
80 (D. Mass. 2008) (noting that the history of the litigation
weighed in favor of preclusion where the “litigation includes
multiple extensions to complete discovery”); Alves v. Mazda
Motor of Am., Inc., 448 F. Supp. 2d 285, 296 (D. Mass. 2006).
Allowing Maryea to use her late-disclosed experts will also
likely have a substantial effect on the court’s docket.
Maryea’s disregard of the deadlines for expert disclosures by
itself has an effect on the court’s docket. See Santiago-Diaz
v. Laboratorio Clinico Y De Referencia Del Este, 456 F.3d 272,
277 (1st Cir. 2006) (“Whenever a party, without good cause,
6 neglects to comply with reasonable deadlines, the court’s
ability to manage its docket is compromised.”). Here, that
effect is amplified. Trial is scheduled for March 2016.
Defendants have asserted that they will likely need a
continuance of the trial to adequately prepare for trial should
Maryea’s two late-disclosed experts be permitted to testify.
The impact on the court’s docket is thus substantial. See
Contour Design, 2011 WL 4527404, at *8 (delaying discovery and
trial because of late-disclosed information has a substantial
effect on the court’s docket); see also Santiago-Lampón v. Real
Legacy Assur. Co., 293 F.R.D. 86, 91 (D.P.R. 2013).
Finally, Maryea has not shown her need for the late-
disclosed experts. Not only does Maryea fail to articulate her
need for the experts, she offers no details as to the content or
subject matter of their opinions. Thus, exclusion of the
experts will not “obviously or automatically result in
dismissal” of Maryea’s case, and this factor does not weigh in
favor of preclusion. See Harriman, 627 F.3d at 32.
After due consideration of the applicable factors, the
court finds that precluding Maryea from offering Dr. Mark Koris’
and Stephen Powers’ opinions is the appropriate remedy for her
late disclosure.
7 Conclusion
For the foregoing reasons, defendants’ motion to exclude
expert opinions (doc. no. 9) is GRANTED.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
December 1, 2015
cc: Tony F. Soltani, Esq. Corey M. Belobrow, Esq.