R. Lacey Colligan, M.D. v. Mary Hitchcock Memorial Hospital and Dartmouth Hitchcock Clinic

2018 DNH 122

• Court: District Court, D. New Hampshire
• Decided: June 22, 2018
• Docket: 16-cv-513-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

R. Lacey Colligan, M.D.

v. Civil No. 16-cv-513-JD Opinion No. 2018 DNH 122 Mary Hitchcock Memorial Hospital and Dartmouth Hitchcock Clinic

O R D E R

The plaintiff, R. Lacey Colligan, M.D., brought suit

against Mary Hitchcock Memorial Hospital and Dartmouth Hitchcock

Clinic, alleging disability discrimination and infliction of

emotional distress that arose from an incident that caused the

defendants to terminate a business relationship with her and bar

her from their property. The plaintiff moves to exclude the

defendants’ expert witness, Bonnie Michelman, pursuant to

Federal Rule of Civil Procedure 37(c)(1). The defendants object

to the motion.

Standard of Review

Federal Rule of Civil Procedure 26(a)(2) governs disclosure

of expert witnesses and related information. For expert

witnesses who are required to provide a written report, the

report must include, among other things, “the facts or data considered by the witness in forming [the opinions stated in the

report],” the witness’s qualifications along with a list of all

publications over the past ten years, “a list of all other cases

in which, during the past 4 years, the witness testified as an

expert at trial or by deposition,” and a statement of the

compensation to be paid to the witness. Rule 26(e) requires

timely supplementation of disclosures made under Rule 26(a).

Rule 37(c)(1) provides: “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.”

Rule 37(c)(1) provides additional or alternative sanctions of

ordering the party to pay reasonable expenses, informing the

jury of the party’s failure, and the sanctions listed in Rule

37(b)(2)(A). Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72,

77-78 (1st Cir. 2009). A party who fails to comply with Rule

26(a) or (e) bears the burden of showing that the failure was

substantially justified or harmless. Wilson v. Bradlees of New

England, Inc., 250 F.3d 10, 21 (1st Cir. 2001).

2 Background1

The plaintiff alleges that the defendants hired her,

through a contract with her company, Sharp End Advisory, LLC, as

a research consultant. As of January 1, 2015, the plaintiff

became an adjunct assistant professor in the department of

pediatrics at the Geisel School of Medicine at Dartmouth

College. She further alleges that she was a patient at

Dartmouth-Hitchcock and that she had a diagnosis of post-

traumatic stress disorder and depression.

During the time of the events pertinent to this case, Dr.

John Birkmeyer was an executive vice president of Darthmouth-

Hitchcock, chief academic officer, and program director for a

project funded by a grant from an agency within the United

States Department of Health and Human Services. The plaintiff

also contributed to the grant. During the summer of 2015, Dr.

Birkmeyer held meetings at Dartmouth-Hitchcock to announce new

and contentious plans to address budgetary concerns, which

included consolidation of the pediatrics department. The

1 The background information is summarized from the plaintiff’s amended complaint and the allegations in the motion to exclude and the objection. The summary provides a context for deciding the plaintiff’s motion to exclude and does not provide findings of fact or any conclusions based on alleged facts.

3 plaintiff opposed the budgetary restrictions and consolidation

plans.

About 8:00 on the morning of September 1, 2015, the

plaintiff was walking near her home when she alleges that she

saw someone in a car across from the Birkmeyers’ home taking

pictures and she thought she recognized the person as someone

who had recently been terminated by the defendants. The

Birkmeyers’ house was in the midst of a construction project,

and the plaintiff went to an open side door, where workers were

entering the house. A worker directed her to the front door.

Dr. Birkmeyer’s wife met her at the front door. The

plaintiff said to Mrs. Birkmeyer: “I want you to know that we

don’t like what Dr. Birkmeyer is doing and we all know where you

live.” Mrs. Birkmeyer was concerned and called her husband at

work to report the incident. Soon after the incident, the

plaintiff went back to the Birkmeyers’ house and left flowers

and a note of apology.

Dr. Birkmeyer contacted the head of human resources at

Dartmouth-Hitchcock to report the incident. He also reported

the incident to the Hanover police. The Birkmeyers secured

their home and took measures to protect their family.

Based on Dr. Birkmeyer’s report, the defendants immediately

decided to terminate their relationship with the plaintiff.

4 Later on September 1, the director of employee relations

notified the plaintiff of that decision. The defendants also

limited the plaintiff’s access to and use of the Dartmouth-

Hitchcock system, including barring her from the defendants’

property except in cases of medical emergency and to attend

scheduled medical appointments as a patient, in which case she

was required to contact security before she arrived.

The plaintiff brought this action on November 18, 2016.

The defendants disclosed Bonnie Michelman as their expert

witness on December 4, 2017, and provided the plaintiff with

Michelman’s report. Michelman is currently, and has been since

1991, “Executive Director of Police, Security, and Outside

Services” at Massachusetts General Hospital. Michelman did not

disclose in her report any publications, other cases where she

served as an expert, or the compensation she is being paid in

this case. She also did not supplement her report to list other

materials that she reviewed after her report was submitted and

before her deposition.

The plaintiff’s counsel deposed Michelman on April 6, 2018.

During the deposition, it became apparent that Michelman had

reviewed documents not disclosed in her report, had participated

in other cases, and had authored publications that were not

disclosed. In addition, Michelman refused to answer questions

5 about policies and procedures at Massachusetts General Hospital,

where she has worked for the past twenty-seven years. After the

deposition, counsel for the defendants provided information

about Michelman’s publications, prior case participation, and

compensation.

Discussion

The plaintiff moves to exclude Michelman as an expert in

this case because of the defendants’ failure to properly

disclose information related to her opinions and because of her

refusal to answer questions during her deposition. The

defendants object to the motion, arguing that their failures to

make timely disclosures were inadvertent and harmless. They

also argue that Michelman provided sufficient bases for her

opinions and was not required to disclose information about the

policies and procedures at Massachusetts General Hospital, which

they characterize as proprietary information.

A. Expert Report

The defendants acknowledge that Michelman’s report did not

disclose all of the information required under Rule 26(a)(2)(B).

They argue, however, they complied with the requirements because

some of the information was disclosed during Michelman’s

deposition, some was disclosed after the deposition, and other

6 information was not material to her opinions. They also contend

that any delay is harmless. The plaintiff disagrees.

1. Timely Disclosure

Rule 26(a)(2)(B) requires the listed information to be

disclosed as part of the expert report, that is the “report must

contain” the listed information. Supplementation, under Rule

26(e), must be timely and pertains to information learned after

the required initial disclosures have been made. See Downing v.

Select Rehabilitation, Inc., 2017 WL 3820946, at *7 (D. Me. Aug.

31, 2017). The purpose of Rule 26(a)(2)(B) and the disclosures

it requires is to allow counsel to prepare for depositions and

cross-examination and to determine whether to obtain expert

witnesses of their own. Rembrandt Vision Techs., L.P. v.

Johnson & Johnson Visioin Care, Inc., 725 F.3d 1377, 1381 (Fed.

Cir. 2013); Walsh v. Chez, 583 F.3d 990, 994 (7th Cir. 2009);

Laplace-Bayard v. Batile, 295 F.3d 157, 162 (1st Cir. 2002);

Williams v. Techtronic Indus. N. Am., Inc., 2014 WL 2865874, at

*4 (D. Mass. June 23 2014); AVX Corp. v. Cabot Corp., 252 F.R.D.

70, 78 (D. Mass. 2008).

To the extent the defendants contend that their disclosures

during Michelman’s deposition and after were timely, they are

mistaken. Michelman’s report was provided on December 4, 2017,

which is when all information required under Rule 26(a)(2)

7 should have been provided. She was deposed on April 6, 2018,

four months later. Generally, parties cannot cure a deficient

expert report with later deposition testimony, and the

defendants have not shown that a different standard should apply

here. MMG Ins. Co. v. Samsung Elecs. Am., Inc., 293 F.R.D. 58,

61 (D.N.H. 2013). Therefore, the missing information was not

timely disclosed under Rule 26(a)(2), and the defendant’s

failure to disclose invokes sanctions under Rule 37(c) unless

the defendants’ failure was substantially justified or harmless.

2. Justified or Harmless

The defendants do not argue that their failure to comply

with the requirements of Rule 26(a)(2)(B) is substantially

justified. They offer no reasons or justification for the late

disclosures. Instead, they argue that their failure to disclose

the required information until Michelman’s deposition and after

the deposition is harmless.

In support, they contend that the plaintiff’s counsel was

able to ask Michelman about some of the information when it was

disclosed during the deposition. They also suggest that

“nothing prevents her from deposing Ms. Michelman again or

seeking additional information.” The court is not persuaded.

As is noted above, the purpose of the disclosure

requirements in Rule 26(a)(2)(B) is to allow counsel to prepare

8 to depose the expert witness and to decide whether to engage an

expert. That purpose is thwarted when the proponent of the

expert fails to provide the required information with the

report, which is disclosed long before the expert’s deposition.

The appropriate sanction for the violation is discussed below.

B. Deposition

The plaintiff also seeks sanctions against the defendants

based on Michelman’s refusal to answer certain questions during

her deposition. The plaintiff argues that the failure to

provide that deposition testimony violates the requirement that

an expert provide “a complete statement of all opinions the

witness will express and the basis and reasons for them.” Fed.

R. Civ. P. 26(a)(2)(B)(i). As noted above, however, the

information required by Rule 26(a)(2)(B)(i) must be provided

with the expert’s report, not in a deposition. As a result,

Michelman’s refusal to answer certain deposition questions does

not appear to implicate Rule 26(a)(2)(B)(i).2

2 To be clear, the plaintiff does not challenge Michelman’s qualifications as an expert under Federal Rule of Evidence 702 or move to compel Michelman to answer the refused questions under Federal Rule of Civil Procedure 37(a)(3)(i).

9 C. Sanction

The appropriate sanction under Rule 37(c) for violation of

Rule 26(a)(2)(B) is determined based on five factors that assess

the impact of the violation and the sanction. Paolino v. JF

Realty, LLC, 830 F.3d 8, 13 (1st Cir. 2016). The five factors

are: “(1) the history of the litigation; (2) the sanctioned

party’s need for the precluded evidence; (3) the sanctioned

party’s justification for its late disclosure; (4) the opponent-

party’s ability to overcome the late disclosure’s adverse

effects; and (5) the late disclosure’s impact on the district

court’s docket.” Id. “When preclusion of expert testimony

would have “serious consequences to the disposition of the case,

‘the justification for it must be comparatively more robust.’”

Andrews v. Target Pharmacy, 714 Fed. Appx. 4, 6 (1st Cir. 2017)

(quoting Esposito, 590 F.3d at 77-78).

The defendants assert that Michelman is a significant

witness in this case because her testimony is expected to

corroborate the defendants’ determination that the plaintiff was

a security risk and the defendants’ actions taken based on that

determination. See Paolino, 830 F.3d at 14 (citing Esposito and

discussing the need for serious consequences in disposition of

the case to avoid exclusion). While the defendants offer no

justification for waiting six months to complete the disclosures

10 required under Rule 26(a)(2)(B), they apparently have now

provided the required disclosures. Of note, the deadlines for

disclosing expert witnesses and their reports is long past, as

is the deadline for challenging expert testimony. Fact

discovery is complete.

Ordinarily, under these circumstances, exclusion of the

witness would be the appropriate sanction. Fed. R. Civ. P.

37(c)(1). The defendants suggest that the plaintiff could

redepose Michelman to cure any harm their failures have caused.

Because of the restrictions on the sanction of exclusion imposed

by Esposito, the court orders an alternative sanction pursuant

to Rule 37(c)(1)(A), as provided below.

Conclusion

For the foregoing reasons, the plaintiff’s motion to

exclude the defendants’ proposed expert witness (document no.

22) is granted to the extent that a sanction is ordered against

the defendants as follows:

(1) The defendants shall make Michelman available for a

second deposition at the convenience of the plaintiff’s counsel.

(2) The defendants shall provide all of the information

and disclosures that are required under Rule 26(a)(2)(B), in

writing and in a single package, even if the some or all of the

same information has been produced previously. The disclosure

11 package shall be provided to the plaintiff’s counsel on or

before June 22, 2018.

(3) The defendants shall pay all costs associated with the

second deposition of Michelman, including all of the plaintiff’s

attorneys’ fees and costs that are incurred in preparation for

the deposition, in conducting the deposition, and, if necessary

and successful, in compelling her deposition testimony.

(4) Because of the delay that the second deposition will

cause, the deadline for challenging the defendants’ expert

witness will be extended to a date after the deposition is held.

That date shall be submitted by the defendants in an assented-to

motion to amend the discovery order.

(5) If the defendants choose not to comply with the

requirements of this sanction, Michelman will be excluded from

this case and will not testify or provide evidence for any

purpose.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

June 14, 2018 cc: William E. Christie, Esq. Natalie J. Laflamme, Esq. Timothy John McLaughlin, Esq. William D. Pandolph, Esq. Christopher James Pyles, Esq.