Expert Witness Profiler

Tag: Expert Disclosure

  • Palliative Care Expert’s New and Expanded Opinions on Facility Neglect Admitted

    Palliative Care Expert’s New and Expanded Opinions on Facility Neglect Admitted

    Plaintiffs are the estates of three decedents, Robert W. Petersen (“Mr. Petersen”), Mary Ann Simons, (“Ms. Simons”) and Charlotte Elaine Guilford (“Ms. Guilford”) (collectively, “Plaintiffs”). Plaintiffs were residents of Canyon Creek, an assisted living facility in Billings, Montana specializing in memory care, during the height of the COVID-19 pandemic in 2020. Plaintiffs alleged that Canyon Creek was negligent in the care of Mr. Petersen, Ms. Simons, and Ms. Guilford and that its negligent care caused their deaths.

    Defendants Koelsch Senior Communities, LLC (“Koelsch”), and Billings Partners, LLC d/b/a Canyon Creek (“Canyon Creek”) filed a motion in limine to exclude the Plaintiffs’ expert Scott Bolhack, M.D.’s undisclosed expert opinions and limit his testimony to only what was timely disclosed in his expert disclosure.

    Palliative Care Expert Witness

    Scott Matthew Bolhack, M.D. is board certified in internal medicine and hospice and palliative medicine with additional credentials as a Certified Wound Specialist Physician and a Certified Medical Director in long-term care. He has experience as a medical director for skilled nursing homes, assisted living facilities, hospices, home health agencies and wound centers. He has spoken on many topics nationally and has presented over 35 scientific posters in the areas of wound care, quality improvement, and post-hospital care.

    Want to know more about the challenges Scott Bolhack has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Defendants first sought to exclude three categories of material Bolhack relied on in forming his opinions, but did not disclose until his deposition. Those categories include: (1) documents available to Plaintiffs before the expert disclosure deadline but not provided to Bolhack until one week before his deposition; (2) documents available to Plaintiffs after the expert disclosure deadline but not provided to Bolhack until one week before his deposition; and (3) documents available to Bolhack before the expert disclosure deadline but only relied on after receiving the additional documents from Plaintiffs’ counsel one week before his deposition.

    Defendants next sought to exclude Bolhack from relying on the new opinions found in his Deposition Notes, which were provided to Defendants for the first time at his deposition.

    A. Federal Rule of Civil Procedure 26

    1. Documents Available to Plaintiffs Before the Expert Disclosure Deadline but not Provided to Bolhack Until One Week Before his Deposition

    All material in the first category, except for one employee declaration, was available to the parties before the expert disclosure deadline.

    Yet, Plaintiffs did not provide the material to Bolhack until approximately one week before his deposition. This means Bolhack received the material almost three months after his initial disclosure and one month after the close of discovery.

    Here, the Court found no reason justifying Plaintiffs’ decision to withhold the first category of material from Bolhack when that material was available before the expert disclosure deadline. Because Bolhack ultimately relied on the material to form his opinions, Plaintiffs failed to timely and adequately disclose under Rule 26(a).

    2. Documents Available to Plaintiffs After the Expert Disclosure Deadline but not Provided to Bolhack Until One Week Before his Deposition

    Here, the parties learned of the material in this second category after the initial disclosure deadline.

    Therefore, Plaintiffs duty to supplement arose under Rule 26(e) when they learned that Bolhack’s Initial Disclosure was either incomplete or incorrect based on the new information. Plaintiffs’ contention that they “need not supplement when information [was] made known in the discovery process” has no merit here because the information in this second category exceeds the scope of Rule 26(e), that is—”correcting inaccuracies or filling the interstices of an incomplete report.”

    As the Court has discussed, Bolhack used this second category of material to revise, add to, and create new opinions. Even if Plaintiffs are now conceding the Initial Disclosure was inaccurate or incomplete, they have failed to show what part of the Initial Disclosure needed to be corrected or filled in. As such, the Court found that the additional material in this category was not a proper supplementation as allowed under Rule 26(e)(1).

    3. Documents Available to Bolhack Before the Expert Disclosure Deadline but Only Relied on After Receiving the Additional Documents from Plaintiff’s’ Counsel One Week Before his Deposition

    The final category of material Defendants sought to exclude consisted of governmental regulations and medical literature Bolhack admitted to reviewing only after he received and reviewed the preceding two categories of material.

    The scientific articles were published between 1993 and 2022, and the governmental regulations were both publicly available and long-standing. Therefore, they would have been available for review before the expert disclosure deadline.

    Again, Bolhack did not disclose these regulations or articles in his Initial Disclosure and therefore they were untimely disclosed under Rule 26(a). And unless Plaintiffs now concede Bolhack’s Initial Disclosure was inaccurate or incomplete, the introduction of this new material was not proper supplementation as contemplated by Rule 26(e).

    4. Bolhack’s Deposition Notes and Opinions

    After receiving and reviewing the three categories of undisclosed material, Bolhack compiled his Deposition Notes. As a result, his Notes—by his own admission—contain “a host of opinions” not found in his Initial Disclosure.

    Bolhack’s new and expanded opinions pertain to causation of death, facility neglect and causality, expanded event timelines, COVID-19 response, pressure wound management and nutritional declines, hospice care initiation, and detailed rebuttal of other experts’ testimony.

    For example, as to causation and neglect, the Deposition Notes surpass the summary-level conclusions initially disclosed. At first, Bolhack detailed causation opinions regarding all three decedents, with references to multiple contributing factors beyond the primary disease listed on each death certificate, but with no specific references to Canyon Creek’s standard of care breach. By contrast, the Deposition Notes include more detailed and pointed attributions of death and decline to Canyon Creek’s failure in monitoring, intervention, and institutional processes, including explicit citations to regulatory standards.

    Likewise, Bolhack’s Notes introduced new criticisms of Canyon Creek’s pandemic response. His new opinions connect pandemic failures to patient outcomes in ways that were largely absent from his Initial Disclosure.

    Finally, unlike his Initial Disclosure, Bolhack’s Notes challenged opposing expert testimony with new opinions, stating he was not confident their COVID-19 severity assessment was correct, and critically questions whether appropriate processes were in place. His detailed critiques of the testimony and opinions of opposing experts, referencing both factual disagreements and regulatory mandates, are absent from the Initial Disclosure.

    It is obvious—by Bolhack’s own admission and after review of the two reports—that the Deposition Notes are different from, rather than supplemental to, the opinions contained in his Initial Disclosure.

    B. Federal Rule of Civil Procedure 37

    1. Substantially Justified and Harmless

    Plaintiffs first attempted to justify Bolhack’s late disclosure by claiming they complied with Defendants’ subpoena after the parties agreed expert notes were not discoverable.

    Plaintiffs further argued that the late disclosure was harmless because Defendants have now known about Bolhack’s opinions for over a year, declined to follow up, and never tried to re-open the deposition or supplement their own experts’ reports.

    The Court found that the late disclosure was neither substantially justified nor harmless. Initially, the late disclosure deprived Defendants of a meaningful opportunity to prepare for, examine, and respond to Bolhack’s new opinions at his deposition. True, Plaintiffs complied with Defendants’ subpoena. However, had Defendants not subpoenaed Bolhack, they may not have learned about the new materials Bolhack relied on or his new opinions until trial.

    The record showed the additional material Bolhack relied on was largely available before the disclosure deadline. Plaintiffs offered no reason why it was not provided to Bolhack before his Initial Disclosure, and therefore, the late disclosure of the documents and Bolhack’s new opinions was not justified.

    The Court next rejected Plaintiffs’ contentions that Defendants “sat on their hands” in bringing the instant motion. The procedural record reflected Defendants’ timely pursuit of relief consistent with the Court’s directive regarding the timing of motions in limine.

    2. Sanctions

    Here, Plaintiffs’ inadequate disclosure was neither substantially justified nor harmless. However, the Court ultimately concluded that the risk of any prejudice to Defendants at trial is mitigated by two factors. First, despite Plaintiffs’ procedural infraction, Defendants have had adequate time to prepare for trial since they learned of Bolhack’s late disclosure 14 months ago. Second, expert testimony is essential to litigating the parties’ case; as such, there are less drastic sanctions available than striking portions of Bolhack’s opinions.

    The jury should be allowed to weigh the entirety of Plaintiffs’ experts’ opinions.

    Therefore, the Court elected to impose the lesser sanction of allowing Plaintiffs to file Bolhack’s supplemental expert report and allowing Defendants to reopen Bolhack’s deposition. The parties may conduct this deposition by Zoom or other remote means, and Plaintiffs shall bear the reasonable costs of conducting this deposition.

    Held

    The Court denied Defendants’ motion in limine to exclude the Plaintiffs’ expert Scott Bolhack, M.D.’s undisclosed expert opinions and limit his testimony to only what was timely disclosed in his expert disclosure.

    Key Takeaway:

    Sanctions which interfere with the litigants’ claim or defenses violate due process when they are imposed merely for punishment of an infraction that did not threaten to interfere with the rightful decision of the case.

    Case Details:

    Case Caption: Estate Of Robert W. Petersen Et Al V. Koelsch Senior Communities LLC
    Docket Number: 1:22cv11
    Court Name: United States District Court, Montana
    Order Date: November 13, 2025
  • Toxicology Expert’s Report Exceeds the Bounds of Permissible Supplementation

    Toxicology Expert’s Report Exceeds the Bounds of Permissible Supplementation

    Michelle Young, the surviving spouse of Ernest James Young and Amanda Fries, the daughter and heir of Young filed the underlying lawsuit alleging that Young’s death from pancreatic cancer was caused by his exposure to radioactive contaminants that were released by the Defendants’ negligent operation of a uranium processing plant in Gore, Oklahoma, near where Young grew up.

    On December 6, 2024, Plaintiffs disclosed and provided the expert report of James Clark, Ph.D. On March 6, 2025, Plaintiffs submitted a report entitled ‘Supplemental Opinions’ of Clark, Ph.D. (“March Report”).

    Defendants filed a motion to strike the March Report pursuant to Fed. R. Civ. P. 37(c)(1), arguing it is an improper attempt to supplement the December Report because it is an unauthorized sur-rebuttal expert report.

    Toxicology Expert Witness 

    James Clark is a well-recognized toxicologist, air modeler, and health scientist specializing in dose reconstruction. He has 30 years of experience in tying together environmental contaminants measurements to human health impacts.

    Want to know more about the challenges James Clark has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Propriety of Clark’s March Supplemental Report

    Defendants argued that Clark’s March Report is an improper supplement because it did not correct any inaccuracies or complete an incomplete disclosure in his December Report. Instead, Defendants argued, Clark’s March report added a completely new analysis regarding Young’s radionuclide absorption and exposure and offered four or five new sweeping opinions.

    Plaintiffs first argued that Rule 26(a)(2)(D)(ii) expressly allowed rebuttal reports and that the March Report was Clark’s rebuttal response to criticisms set out in the opposing expert’s report. Plaintiffs next argued that Clark’s March Report was an appropriate supplement to his December Report because he simply filled in an incomplete aspect of his December Report – calculated the previously uncalculated radionuclide absorption in Young’s cremains. Finally, Plaintiffs argued that Clark’s March Report was timely because Rule 26(a)(3) provides for such supplement no later than the required pretrial disclosures.

    Analysis

    The Court noted that Plaintiffs sought neither to amend the schedule nor leave to file the March Report.

    Moreover, Clark’s March Report was not a proper supplement to his December Report. In the December Report, Clark opined that Young’s cremains contained from 2 to 4.5 times as much radiation when compared to the average value in cremains of other Colorado residents. In his March Report, Clark took the additional step of calculating the additional radiation exposure by year experienced by Young based on the analysis of radiation in Young’s cremains as compared to other Colorado residents.

    Since Clark merely attempted to “strengthen” or “deepen” his opinion expressed in the December Report by making calculations that he could have made in the December Report, the Court held that Clark’s March Report exceeded the bounds of permissible supplementation and is subject to exclusion under Fed. R. Civ. P. 37(c)(1).

    Whether a Rule 26(a) Violation is Justified or Harmless

    Defendants argued that they are prejudiced because of the late disclosure of Clark’s opinions in the March Report and because they will have to seek leave to file a sur-sur rebuttal report. Plaintiffs argued that Defendants will not suffer any prejudice or, to the extent they do, it is easily curable because the discovery deadline was extended by ninety days. While Plaintiffs are correct that the discovery and related deadlines were extended, the expert disclosure and rebuttal deadlines were not. It is apparent that permitting Clark’s March Report will likely disrupt the trial of this case.

    Moreover, Clark acted willfully in that he knew or should have known that his opinions regarding Young’s radiation exposure would be stronger if accompanied by a radionuclide absorption analysis. After all, Clark could have performed the radionuclide absorption analysis as part of his December Report.

    Held

    The Court granted the Defendants’ motion to strike the Plaintiffs’ purported supplemental expert report of James Clark.

    Key Takeaway:

    A supplemental expert report that states additional opinions or rationales or seeks to “strengthen” or “deepen” opinions expressed in the original expert report exceeds the bounds of permissible supplementation and is subject to exclusion under Rule 37(c)(1).

    Case Details:

    Case Caption: Young Et Al V. Sequoyah Fuels Corp. Et Al
    Docket Number: 6:22cv280
    Court Name: United States District Court, Oklahoma Eastern
    Order Date: June 02, 2025
  • Ex parte communications between an attorney and an opposing party’s expert witness is not prohibited under Connecticut law

    Ex parte communications between an attorney and an opposing party’s expert witness is not prohibited under Connecticut law

    Epright sought to recover underinsured motorist benefits from Liberty Mutual in connection with a motor vehicle collision. Epright allegedly sustained multiple injuries, including an injury to her left shoulder. During her deposition, Epright testified that she had experienced shoulder pain since the date of the accident.

    Liberty Mutual retained an orthopedic surgeon, James Depuy, to provide testimony regarding damages and causation. During the deposition, Depuy stated that he had reviewed all of Epright’s medical records and that they contained no indication that Epright complained of shoulder pain until well after the accident. Depuy’s opinion was that the medical treatment Epright received with respect to her left shoulder was not related to the motor vehicle accident.

    Kevin Brignole, an attorney working for the firm representing the Plaintiffs, asked Depuy whether it would change his opinion if Depuy learned that Epright in fact had been complaining of shoulder pain since the date of the accident, to which Depuy responded that such information might change his opinion.

    Subsequently, without informing counsel for Liberty Mutual, Timothy Brignole, another attorney at the firm, instructed his paralegal, Sandra H. Bryan, to contact Depuy’s office to schedule an appointment for Depuy to perform a medical examination on Epright for a fee. That same day, Kevin Brignole filed a detailed expert disclosure with the trial court, indicating that Epright intended to call Depuy as an expert witness.

    Thereafter, Depuy conducted the medical examination of Epright, and opined that Epright’s shoulder injury was causally related to the accident.

    This case requires us to consider whether, under Practice Book § 13-4, an attorney may be sanctioned for engaging in ex parte communications with an expert witness who has been retained and disclosed by the adverse party for the purpose of providing testimony in litigation.

    Discussion by the Court

    The trial court imposed monetary sanctions after finding that attorneys with the firm engaged in impermissible ex parte communications with Depuy. The trial court determined that the firm’s communication with Depuy was a clear violation of the rules of expert discovery set forth in § 13-4. The Appellate Court reversed the order of the trial court, concluding that § 13-4 does not clearly prohibit ex parte communication between an attorney and an opposing party’s disclosed expert witness.

    The firm representing the Plaintiffs argued that neither Connecticut case law nor the rules of practice limit or prohibit a Plaintiff from contacting and thereafter disclosing the Defendant’s disclosed expert witness as the Plaintiff’s own expert.

    In 2008, the judges of the Superior Court amended Practice Book § 13-4, which amendment became effective in 2009. Prior to that time, the rule expressly limited the procedure for communication with an opposing party’s expert to interrogatories to an opposing party and/or formally noticed depositions of the expert.

    In 2009, the rule was amended, and the language that limited the methods of communication with an opposing party’s expert was removed. The current rule did not include the language that existed in the rule before the 2009 amendments, which expressly confined communication with an opposing party’s disclosed expert to interrogatories served on the opposing party or depositions.

    To conclude, the Connecticut Supreme Court affirmed the judgment of the Appellate Court.

    Held

    The Connecticut Supreme Court agreed with the Appellate Court that the trial court improperly imposed sanctions on the firm for conducting ex parte communications with an expert witness previously disclosed by Liberty Mutual.

    Key Takeaway:

    This case requires us to consider whether, under Practice Book § 13-4, an attorney may be sanctioned for engaging in ex parte communications with an expert witness who has been retained and disclosed by the adverse party for the purpose of providing testimony in litigation. The trial court determined that the firm’s communication with Depuy was a clear violation of the rules of expert discovery set forth in § 13-4. The Appellate Court reversed the order of the trial court, concluding that § 13-4 does not clearly prohibit ex parte communications between an attorney and an opposing party’s disclosed expert witness. The Connecticut Supreme Court agreed and, accordingly, affirmed the judgment of the Appellate Court.

    Case Details:

    Case Caption: Epright v. Liberty Mutual Insurance Company
    Docket Number: SC 20751
    Court: Connecticut Supreme Court
    Order Date: July 11, 2024
  • Trucking Expert Witness Testimony on Negligent Operation of Vehicles Admitted

    Trucking Expert Witness Testimony on Negligent Operation of Vehicles Admitted

    Plaintiff Shawn Martin suffered serious injuries from the rear-end motor vehicle collision with Defendant Valenzuela’s trailer, which occurred on I-84 on Cabbage Hill outside Pendleton, Oregon, amid adverse weather conditions. Defendants Luis Valenzuela and Baljinder Singh were operating commercial motor vehicles, while Defendant Joel Hannu was driving a large pick-up truck. The Plaintiff, Shawn Martin, operated a pick-up truck and had a passenger, Dylan Smith, at the time of the incident.

    Defendants Valenzuela and Singh encountered a scene with multiple vehicles blocking the highway upon their arrival. As Defendant Valenzuela was slowing down for traffic, Defendant Singh, along with a Black Ford Escape, collided behind him, forcing Valenzuela out of his lane. Consequently, Valenzuela’s semi-truck was struck by Defendant Singh and/or the Ford Escape. Despite managing to bring his truck to a complete stop on the highway exit ramp without colliding with other vehicles, Valenzuela couldn’t proceed forward due to previous collisions blocking the road. Additionally, Defendant Singh’s tractor-trailer obstructed the exit. In a matter of seconds, the Plaintiff, Shawn Martin, collided with the rear of Valenzuela’s trailer.

    The Plaintiff entered the highway from the onramp immediately preceding the exit where the accident occurred. At that location, an Oregon Department of Transportation (ODOT) worker flagged down the Plaintiff, warning of an accident or a stalled vehicle in the fast lane about two miles down the road. Although the Plaintiff noticed some fog upon entering the highway, the weather conditions worsened just before the accident, reaching “zero visibility.” Despite being aware of the stalled vehicle ahead and facing poor visibility, multiple witnesses, including the Plaintiff’s passenger, had confirmed the Plaintiff’s speed at 45 miles per hour just before colliding with the back of Valenzuela’s stopped trailer. Plaintiff sustained serious injuries in the accident. Plaintiffs Shawn Martin and Karen Martin brought a negligence action against multiple Defendants, stemming from a multi-vehicle accident.

    The Plaintiff hired a trucking expert, Lew Grill, with the intention of obtaining testimony on Federal Motor Carrier Safety Administration (FMCSA) regulations. Grill’s evaluation focused on determining whether the Defendants’ drivers had violated FMCSA regulations. 

    The final deadline for expert disclosures had been known to the parties for months. By Order dated April 10, 2023, the Court reset the deadline for expert disclosures to July 18, 2023, and rebuttal expert disclosures to August 8, 2023. On July 18, 2023, the Plaintiffs disclosed and produced reports from their two purported primary experts, Lew Grill ( Trucking Expert)  and Sharla Paso (Medical Billing Expert). On August 8, 2023, the date for rebuttal reports, Plaintiffs submitted a four-page “rebuttal” report from Paso and newly disclosed expert Michele Cook (“Paso/Cook Report”) that contained the primary opinions alluded to but not included in the original Paso Report.

    Defendant Valenzuela moved to exclude the expert report of Plaintiffs’ trucking expert, Lew Grill (“Grill”), under Federal Rule of Evidence 702. The basis for Valenzuela’s motion was the assertion that Grill’s opinion, as presented in his expert report, lacked sufficient reliability, and his methodology was flawed due to a failure to consider adequate facts and data. Additionally, Defendant Singh joined in the motion. Defendant Singh also moved to strike the expert reports of Passo/Cook due to Plaintiffs’ failure to adhere to their expert discovery obligations under Fed. R. Civ. P. 26(a)(2)(B).

    Trucking Expert Witness

    Lew Grill, an expert witness in motor fleet safety, accident investigation, and traffic accident reconstruction, has a comprehensive background in the trucking industry. He has over 50 years’ experience as a truck driver, independent trucker, truck driver training instructor, and consultant for motor carriers and truck driving schools. Grill holds licenses, certifications, and qualifications as a Commercial Motor Vehicle (CMV) driver with endorsements for hazardous materials, tank truck, double & triple trailers, passenger carriage, and school bus. Currently, Grill is the Founder and Chief Visionary Officer (CVO) at The Legacy Corporation International, and since March 1990, he has been the Founder/CVO, Author, Publisher, A/V Producer, and trucking consultant at Atlantic Pacific Resource Group, Inc.

    Medical Billing Expert Witness

    Sharla Paso, DNP, RNC-OB, Women’s Health CNS, has a Doctorate in Nursing Practice (DNP) from the University of Washington, and has 25 years of experience in various nursing areas including ICU, medical surgical, dialysis, and all areas of obstetric/newborn nursing. Sharla holds certifications in obstetric nursing and as a Life Care Planner. Paso is currently the Owner of Medical Vocational Planning, LLC, and is the Founder of Listen Line Community Services. She obtained her Associate Degree from the College of St Catherine-MPLS and then earned her B.S.N. from Walden University. 

    Life Care Planning Expert Witness

    Michele Cook, RN, MA, ABVE has been a Registered Nurse, Medical Case Manager and Vocational Rehabilitation Counselor for over 30 years. She is also a Life Care Planner for over 15 years. She obtained her R.N. from Los Angeles County College of Nursing and Allied Health and then earned her M.A. from Marylhurst University. Cook is currently the Owner/Operator of Medical Vocational Planning, LLC, which serves the attorney clients in areas of medical negligence, personal injury, motor vehicle accidents, product liability, wrongful death, domestic relations, and workers’ compensation.

    Discussion by the Court

    Federal Rule of Evidence 702 outlines the criteria for admissibility of expert testimony, requiring qualification, reliability, and relevance. The proponent bears the burden of establishing these requirements by a preponderance of the evidence. The Court acts as a gatekeeper, ensuring the testimony is both relevant and reliable. The relevancy bar is low, demanding logical advancement of a material aspect of the case. Testimony is reliable if rooted in the knowledge and experience of the relevant discipline, with a flexible inquiry allowing broad discretion to trial Courts. The reliability test focuses on the methodology’s soundness, not the correctness of conclusions, and shaky but admissible evidence should be addressed through cross-examination and contrary evidence rather than exclusion.

    Lew Grill, a trucking expert retained by the Plaintiffs, provided an expert opinion where he formulated the opinion that both Defendants Singh and Valenzuela were negligent in their operation of their vehicles and failed to adhere to the Federal Motor Carrier Safety Administration (“FMCSA”) regulations. His opinion was based on the review of several documents, including the Oregon State Police Traffic Crash Report, Oregon State Police Incident Report, Driver Statements, Photos of the accident scene, and Deposition Transcripts for Plaintiff Shawn Martin, witness Dylan Smith, and Defendant Singh.

    In their motion to exclude Grill’s testimony, the Defendants pointed out that Grill had not reviewed testimony from witnesses Joel Hannu and Sam Glerup or Defendant Valenzuela, which would have provided information on the conditions immediately preceding the accident. Additionally, the Defendants noted that Grill did not consider testimony from multiple witnesses regarding the weather at the time of the accident or the conditions of the road. The Defendants argued that reviewing this evidence was crucial for any expert to form a reliable opinion. Due to Grill’s failure to examine this evidence, the Defendants asserted that his opinion was unreliable and should be excluded. In response, the Plaintiffs contended that “material facts (time and place of the accident, parties, etc.) are common and generally accepted among all expert reports” and that this case was “relatively simple,” requiring the review of only basic evidence.

    Arguments regarding whether Grill should have reviewed additional documents in formulating his opinion were considered by the Court to pertain to the weight, rather than the admissibility, of Grill’s testimony. The Court emphasized that the requirement for expert testimony to be based on “sufficient facts or data” involves a quantitative analysis rather than a qualitative one. The Court clarified that this requirement doesn’t authorize the exclusion of expert testimony based on the Court’s belief in one version of the facts over another. The Court cited Bluetooth SIG, Inc. v. FCA US LLC, 468 F. Supp. 3d 1342 (W.D. Wash. 2020), stating that the factual basis of an expert opinion goes to the credibility of the testimony, not its admissibility. Therefore, any issues concerning the materials deemed more appropriate for the expert to consult were deemed matters of weight, not admissibility, of the expert’s testimony.

    The Court concluded that Grill’s failure to review all available evidence, including what the Defendants deemed essential, did not render his decision unreliable, at least under Rule 702. While the Defendants presented persuasive arguments highlighting deficiencies in Grill’s analysis due to his limited review of the evidence, on the other hand the Defendants conceded that the basic facts of the accident were not in dispute. As such, the Court determined that Plaintiffs were entitled to have their expert formulate an opinion based on “relatively simple” facts without rendering the opinion inadmissible under Rule 702. Therefore, the Court denied the Defendants’ motions to exclude Grill’s testimony.

    Under Rule 37(c)(1), failure to disclose information required by Rule 26(a) may result in exclusion of evidence unless the failure is justified or harmless. To overcome Rule 37’s preclusive effect, a party must show substantial justification or harmlessness. The burden lies on the party facing sanctions to prove harmlessness. Factors guiding the Court in this determination include prejudice, the ability to cure the prejudice, trial disruption likelihood, and any bad faith or willfulness in nondisclosure. Exclusion of expert testimony is not appropriate if other less severe sanctions are available, especially when harm can be easily remedied.

    On the deadline for expert disclosures, which was July 18, 2023, the Plaintiffs submitted a purported expert report from medical billing expert Sharla Paso. The two-page report asserted that the cost of Plaintiff Martin’s medical treatment was reasonable and necessary. However, the report lacked a basis for this opinion and mentioned that Paso was recently hired and in the process of reviewing the records. Subsequently, on the deadline for rebuttal expert disclosures, which was August 8, 2023, the Plaintiffs submitted a combined rebuttal expert report from Paso and her associate, Michele Cook. This report contained the complete opinions regarding the reasonableness of Plaintiff Martin’s medical treatment.

    In their motion to strike, the Defendants argued that the reports should be excluded because the initial Paso report did not contain the required information under Fed. R. Civ. P. 26(a)(2)(B), and the Paso/Cook report was not an appropriate subject for rebuttal testimony. The Defendants sought to strike the Paso/Cook reports and prohibit the testimony of these experts at trial. During oral argument, the Plaintiffs conceded that Paso’s initial expert report did not contain the required information as per Rule 26(a)(2)(B), and the opinions in the Paso/Cook report were not a proper subject for rebuttal testimony. Citing Grove City Veterinary Serv. v. Charter Practice Int’l., 3:13-cv-2276-AC (D. Or. Apr. 19, 2016), in this case it was acknowledged that if the purpose of expert testimony is to contradict an expected portion of the other party’s case-in-chief, then the witness is not a rebuttal witness. Plaintiffs attributed this error to counsel’s unfamiliarity with Rule 26’s expert disclosure requirements. Thus, it is undisputed that Plaintiffs failed to comply with Rule 26.

    Exclusion of the experts was deemed unwarranted in this case. Any potential prejudice to the Defendants was considered easily curable by requiring Paso and/or Cook to undergo expert depositions, at the Plaintiffs’ expense. Additionally, Defendants were allowed to supplement their rebuttal reports if deemed necessary. Given that no trial date was set, both parties had ample opportunity to address and remedy any prejudice in advance of trial. Moreover, the Court noted that there is no evidence indicating bad faith or willfulness in the delayed disclosure of evidence. Consequently, the Defendants’ motion to strike the expert reports was denied, and instead, Plaintiffs were ordered to facilitate depositions for Paso and Cook, at their expense. Defendants were permitted to supplement their expert reports after these depositions.

    Held

    The Court denied the Defendants’ motions to exclude the testimony of Lew Grill and also denied the Defendant’s motion to strike the expert reports of Passo/Cook. The following orders were issued:

    1. Within fourteen (14) days from the date of the order, Plaintiffs were directed to submit separate and complete expert reports for either or both Paso and Cook.

    2. Defendants were granted permission to depose Paso and/or Cook, with Plaintiffs being responsible for any expert fees associated with the deposition if conducted.

    3. Defendants were allowed to supplement their rebuttal expert reports if deemed necessary.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    In the presented case, Plaintiffs brought a negligence action against Defendants following a multi-vehicle accident on I-84. The Plaintiff hired a trucking expert, Lew Grill, to provide an opinion on the Defendants’ alleged negligence in operating their vehicles and violating Federal Motor Carrier Safety Administration (FMCSA) regulations. Defendants moved to exclude Grill’s testimony, arguing it lacked reliability due to a limited review of evidence. The Court, however, deemed Grill’s failure to consider additional documents as a matter concerning the weight, not admissibility of his testimony, and denied the motion. Another dispute arose the Plaintiffs’ failure to comply with their expert discovery obligations. The Court refrained from excluding the testimony in question, instead directing the concerned experts to submit to expert depositions, at Plaintiffs’ expense. These decisions underscore the importance of complying with disclosure rules and suggest that Courts prioritize addressing evidentiary issues through less severe sanctions when possible.

    Case Details

    Case Caption Martin v. Hannu
    Docket Number 2:21cv364
    Court United States District Court, Oregon
    Citation 2024 U.S. Dist. LEXIS 6658
    Order Date January 12, 2024