Expert Witness Profiler

Tag: Rule 37

  • Nutrition Expert Was Allowed to Opine on the Use of Statutes and Regulations

    Nutrition Expert Was Allowed to Opine on the Use of Statutes and Regulations

    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.

    One of Plaintiffs’ allegations in this case is that Canyon Creek failed to ensure that Petersen and Simons maintained acceptable parameters of nutrition and hydration as required by state statute and federal regulation.

    Plaintiffs retained Janet McKee, a registered dietician, as their expert on the standard of care regarding how assisted living facilities monitor residents’ nutritional status and needs.

    However, Defendants filed a motion to exclude McKee’s testimony under Federal Rule of Evidence 702, arguing that her opinions exceed the scope of her qualifications, are based on insufficient facts and data, and are not supported by a reliable assessment of the applicable standard of care. Defendants next filed a motion in the alternative to limit McKee’s testimony. They first argued that she lacked the qualifications to offer medical causation opinions or to use statutes or regulations to establish a duty and should therefore be prohibited from proffering such opinions. Second, they argued that any testimony about, reliance upon, or reference to opinions and information first disclosed during McKee’s deposition should be excluded from trial pursuant to Federal Rules of Civil Procedure 26 and 37.

    Nutrition Expert Witness

    Janet Sutton McKee holds a Master of Science in Food, Nutrition, and Institutional Management and a Bachelor of Science in Home Economics Education. She is a registered dietician and nutritionist and holds licenses in nine states.

    Also, she is board certified as a specialist in gerontological nutrition and currently, she is the owner and manager of a nutrition and foodservice consulting company that services healthcare facilities, including acute care, skilled nursing and long-term care, residential psychiatric and behavioral treatment, and assisted living centers throughout the United States.

    Discover more cases with Janet McKee as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Discussion by the Court

    A. Motion to Exclude Testimony of Plaintiffs’ Expert Janet McKee

    1. Qualifications

    McKee has delivered extensive educational programs and presentations nationwide for healthcare associations, industry conventions, and professional groups, covering topics including nutrition’s role in fall prevention, geriatric care, quality assurance, pandemic response, and liability reduction.

    Also, she has developed and taught nutrition courses at the university level and for healthcare professionals. Further, she has conducted and published clinical research and authored/co-authored numerous articles and chapters on clinical nutrition topics, liability risk management, and speciality dietetics.

    In other words, the Court held that McKee’s knowledge, skill, experience, and education are relevant to the opinions she offers regarding Canyon Creek’s dietary standard of care duties.

    2. Reliability

    The Court determined that McKee’s opinions satisfy the preponderance standard for admissibility, albeit marginally. First, McKee’s opinions are based on sufficient facts and data.

    Although McKee did not cite specific documents and conceded that she would have preferred to review additional material, the Court nonetheless acknowledges that her testimony appears grounded in record evidence, as shown by the “thousands of pages” she produced at her deposition.

    Moreover, McKee’s opinions reflected a reliable application of her experience, training, and education to the facts of the case. 

    For example, McKee opined that Canyon Creek failed to weigh Mr. Petersen on admission and that its negligence caused his weight loss, malnutrition, falls, dehydration, and pressure wounds, as well as a decreased quality and length of life. At deposition, however, she acknowledged not knowing when Petersen was admitted, not possessing his pre-admission records, and not being aware of his prior quality of life or whether he had preexisting pressure injuries. Absent this information, Defendants argued that her opinions are unreliable.

    However, McKee did offer opinions relevant to her experience and supported by the record regarding Petersen’s condition and treatment at Canyon Creek.

    Because McKee’s opinions rest on sufficient facts and data and reliably apply her expertise to the facts of this case, the Court denied Defendants’ motion to exclude.

    B. Alternative Motion to Limit Testimony

    1. Causation Opinions and Establishing a Duty

    In the alternative, Defendants next moved to limit, in limine, McKee’s testimony by prohibiting her from offering causation opinions or using statutes or regulations to establish a duty.

    a. Causation Opinions

    Defendants first argued that McKee should be prohibited from opining that Canyon Creek caused Plaintiffs’ medical diagnoses or that Canyon Creek “promoted” Plaintiffs’ medical outcomes.

    Plaintiffs did not intend to elicit a causation opinion from McKee. Therefore, the Court granted the alternative motion to limit testimony as to eliciting causation opinions.

    However, the Court agreed with Plaintiffs that McKee “is uniquely positioned to render an opinion on the risks attendant to poor nutrition.”

    b. Establishing a Duty

    Defendants next argued that McKee cannot use statutes or regulations to evidence a standard of dietary care because she only opined that Canyon Creek violated the cited statutes and regulations, not that the statutes and regulations embodied an applicable standard of care.

    Because McKee failed to identify laws embodying the standard of care, Defendants argued that she is not qualified to determine which statutes and regulations establish a duty applicable to Canyon Creek.

    Based on McKee’s testimony and qualifications discussed above, the Court allowed her to opine on how the regulations and statutes she identified inform the standard of care and create a duty in this case. Plaintiffs did not intend to elicit ultimate issue opinions from McKee.

    The Court denied the alternative motion to limit testimony as to McKee’s use of statutes and regulations to identify a standard of care and establish a duty.

    2. Federal Rules of Civil Procedure 26 and 37

    a. Rule 26

    The Court found that McKee introduced new opinions in her Violations Report and throughout her deposition that were neither adequately disclosed nor supplemented by Plaintiffs.

    After reviewing McKee’s Initial Report alongside her Violations Report, the Court found that though the documents are fundamentally aligned, they differ in breadth and scope, in their regulatory and legal framing, and in their identification of infection control and systemic failures.

    Disclosures by experts are not living documents that can be added to on a continuing basis. If the Court were to treat McKee’s disclosures in this fashion, then “the full disclosure requirement implicit in Rule 26 … would interfere with the Court’s ability to set case management deadlines, because new reports and opinions would warrant further consultation with one’s own expert and virtually require new rounds of depositions.”

    In addition to improper disclosure, Plaintiffs failed to adequately supplement McKee’s Initial Report under Rule 26(e). It is obvious that the additional material McKee relied on and the new opinions she formed after her disclosure far exceed the scope of Rule 26(e), that is—”correcting inaccuracies or filling the interstices of an incomplete report.”

    Accordingly, Plaintiffs violated Rule 26 when they failed to adequately disclose or supplement McKee’s Initial Report with the numerous new opinions from her Violations Report and the detailed analysis she provided at her deposition.

    b. Rule 37

    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 McKee’s new opinions at her deposition. True, Plaintiffs complied with Defendants’ subpoena. However, had Defendants not subpoenaed McKee, they may not have learned about the new materials she relied on or her new opinions until trial. Plaintiffs offer no reason why the additional materials or new opinions were not properly supplemented under Rule 26(e) before McKee’s deposition, and therefore, the late disclosure was not justified.

    The Court next rejected Plaintiffs’ contention that the late disclosure was harmless because Defendants violated the parties’ agreement not to produce expert notes.

    McKee’s “notes” advanced her opinions far beyond the scope of her summary analysis in her Initial Report. And even though Defendants have known the totality of McKee’s opinions for over a year, it was Plaintiffs’ duty to adequately disclose and supplement under Rule 26.

    Here, 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 McKee’s late disclosure 15 months ago. Second, expert testimony is an essential component to litigating the parties’ case; as such, there are less drastic sanctions available than striking portions of McKee’s opinions that would promote a fair trial. The jury should be allowed to weigh the entirety of Plaintiffs’ experts’ opinions.

    Therefore, the Court elects to impose the lesser sanction of allowing Plaintiffs to file McKee’s supplemental expert report and allowing Defendants to reopen McKee’s deposition.

    Held

    (1) The Court denied the Defendants’ motion to exclude the testimony of Plaintiffs’ expert Janet McKee.

    (2) The Court granted in part and denied in part the Defendants’ alternative motion to limit testimony.

    Key Takeaway

    Although certain aspects of McKee’s testimony may lack foundation in pre-admission records or prior medical history, her analysis of Canyon Creek’s care practices are nonetheless grounded in her professional experience and supported by the record. Therefore, her opinions are reliable.

    Please refer to the blogs previously published about this case:

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

    Economics Expert Was Allowed to Opine on Assisted Living Facility Administration Issues

    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: December 12, 2025
  • Neuroradiology Expert’s Supplemental Report Excluded Because It Adds New Opinions

    Neuroradiology Expert’s Supplemental Report Excluded Because It Adds New Opinions

    Plaintiff, Lori Mendez suffered a head injury while she was shopping at a Hobby Lobby store in Reno on June 5, 2021. It all started when she reached for an item on a shelf that was higher up. The shelves were close together and as Mendez grabbed an item off of the lower shelf, the top shelf came unhooked and crashed down on her head.

    Plaintiff filed a motion to to strike the Defendant’s supplemental expert report of Dr. Saman Hazany, MD, DABR.

    Neuroradiology Expert Witness

    Dr. Saman Hazany is an award‑winning, Harvard‑trained neuroradiologist based in greater Los Angeles, with extensive experience in the care of patients with traumatic brain injury, spinal cord injury, stroke, epilepsy, and brain tumor.

    He holds board certification and the Certificate of Added Qualification (CAQ) in radiology and neuroradiology.

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

    Discussion by the Court

    According to the Court’s scheduling order, the deadline for initial expert reports was March 25, 2024. On that date, Hobby Lobby served Plaintiff with its initial expert disclosure, which disclosed Hazany and included his November 22, 2023 initial expert report. That report listed 29 images that Hazany reviewed. On October 8, 2024, Hobby Lobby served Plaintiff with a supplemental report from Hazany, in which he reviewed an additional seven images. It is undisputed that these seven images were available to Hazany at the time of his initial expert report.

    The Supplemental Report was Untimely

    The Defendants did not appear to dispute that the disclosure was untimely. Because the parties agreed that Hazany had access to the seven images at the time of his initial report, the supplemental report was improper under Rule 26(e).

    Striking is Warranted Under Rule 37

    The Defendant primarily argued that sanctions are not warranted because the improper supplemental report was harmless. However, there is no dispute that the Defendants supplemental report reviews seven images not reviewed at all in the initial report. The supplemental report makes findings and conclusions as to several of these images, such as “No CT evidence for traumatic brain injury,” “Other etiologies including traumatic brain injury are unlikely,” and “No post-traumatic findings.”

    In this case, the deadline for rebuttal expert disclosure was May 22, 2024. The Defendants did not serve the supplemental disclosure until October 8, 2024, which was only 15 days before discovery closed. As Plaintiffs pointed out, this meant that Plaintiff’s rebuttal expert had no opportunity to review and rebut the supplement.

    The Court granted the parties multiple extensions of time during the discovery period, including an extension of the rebuttal expert deadline. Moreover, the prejudice cannot be cured when the discovery is closed.

    Held

    The Court granted the Plaintiff’s motion to strike the Defendant’s supplemental expert report of Dr. Saman Hazany.

    Key Takeaway:

    The late disclosure meant that Plaintiff’s rebuttal expert was not able to review and rebut the new conclusions and opinions present in Hazany’s supplemental report. 

    Any risk of prejudice or surprise cannot be easily be cured at this stage.

    Case Details:

    Case Caption: Mendez V. Hobby Lobby Stores, Inc.
    Docket Number: 3:23cv181
    Court Name: United States District Court, Nevada
    Order Date: July 15, 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
  • Insurance Law Expert Witness’ Testimony Does Not Survive the Rule 37 Challenge

    Insurance Law Expert Witness’ Testimony Does Not Survive the Rule 37 Challenge

    A fire took place overnight at Tiffany Keen and Trevor Wogrin’s newly-purchased residence at 45100 County Road 1 in Parker (the “Home”), on June 5-6, 2022 (the “Fire”), causing damage. The Home was insured by a homeowner’s insurance policy issued by Allstate (the “Policy”). The Insureds submitted a claim to Allstate on June 6, 2022 for the payment of covered benefits under the Policy (the “Claim”).

    Allstate refused to pay Dwelling benefits under the Policy. Almost ten (10) months after the Claim was submitted, Allstate filed this action against the Insureds seeking a declaration that the intentional acts exclusion applies to the Claim to bar coverage.

    Defendants designated an insurance industry expert in support of their counterclaims for breach of insurance contract and bad faith. However, Allstate did not designate an affirmative insurance industry standards expert; instead, it designated its industry standards expert, Keith Olivera as a rebuttal expert.

    To begin with, Defendants sought to strike Olivera on the ground that he was not a proper rebuttal expert. Alternatively, they claimed that he was unqualified to offer certain opinions asserted in his expert report and sought to limit other aspects of his testimony as unnecessary, irrelevant, confusing, or usurping the Court’s prerogative to instruct the jury on the law. 

    Insurance Law Expert Witness

    Insurance Law Expert Witness

    Keith R. Olivera has been an attorney practicing in the field of insurance law for 30 years. Much of his practice involves advising insurers on claim handling practices and claims decisions.

    He advises insurers on claim handling decisions involving both first- and third-party claims. Moreover, he has represented or assisted insurers in hundreds of cases or claims where the insurer has been alleged to have engaged in unreasonable claim handling.

    Get the full story on challenges to Keith R. Olivera’s expert opinions and testimony with an in-depth Challenge Study.  

    Discussion by the Court

    As per Fed. R. Civ. P. 26(a)(2)(D)(ii), a rebuttal expert opinion is one “intended solely to contradict or rebut evidence on the same subject matter identified by another party.”

    The Court found that, superficially, this is what Olivera’s opinion appeared to do. In other words, Olivera contradicted the opinions of the Defendants’ industry standards expert witness, Douglas Meier, who asserted that Allstate’s handling of the Defendants’ insurance claim was unreasonable.

    However, where the subject matter of the expert’s testimony concerns a matter the designating party knew or should have known would be part of its opponent’s case-in-chief, that expert is an affirmative expert.

    To prove their substantive claim, Defendants perforce will be required to show Allstate “acted unreasonably and with knowledge of or reckless disregard for the fact that no reasonable basis existed for denying [Defendants’] claim.” Accordingly, Allstate absolutely should have predicted Defendants would offer an industry standards expert. They could not lay behind the log and only designate their own industry standards expert in rebuttal. Accordingly, the Court held that Olivera is not a proper rebuttal witness.

    Under Rule 37, a party is required to show that the violation of the discovery obligations was substantially justified or harmless.

    Allstate has failed to even acknowledge Rule 37 standards, must less attempt to show how they might be satisfied in this case.

    Held

    The Court granted the Defendants/Counterclaim Plaintiff’s motion to strike or limit the opinions and testimony of Plaintiff’s retained insurance law expert witness, Keith Olivera.

    Key Takeaway

    A rebuttal expert addresses “new unforeseen facts” that emerge in the opposing side’s case. Basically, Allstate tried to present Olivera as a rebuttal expert to counter the Defendants’ expert testimony about insurance industry standards. However, where the subject matter of the expert’s testimony concerns a matter the designating party knew or should have known would be part of its opponent’s case-in-chief, that expert is an affirmative expert.

    When given the chance to justify the violation of its discovery obligations under Rule 37(c)(1), Allstate failed to address any of the required factors for showing their violation was either substantially justified or harmless. Allowing Olivera to testify would have prejudiced Defendants and disrupted the trial. This failure further cemented the Court’s decision to strike his opinions and bar him from testifying.

    Case Details:

    Case caption: Allstate Vehicle And Property Insurance Company V. Wogrin Et Al
    Docket Number: 1:23cv803
    Court: United States District Court for the District of Colorado
    Date: December 23, 2024
  • Automotive Engineering Expert Witness’ Testimony Survives Rule 37 Exclusion Sanction

    Automotive Engineering Expert Witness’ Testimony Survives Rule 37 Exclusion Sanction

    Vicki Oetjens had surgery in October of 2020. Had all gone to plan, a diseased portion of her colon would have been removed, then the healthy ends would have been stapled together. But when the surgical stapler was deployed, no staples fired. This left a hole in Vicki’s large intestine requiring surgical repair. Vicki had to use an ostomy bag until she had a second surgery to reverse the first and reconnect her intestine. When Vicki developed a hernia at the site of her incision, that second surgery led to a third.

    So in June of 2022, Vicki and her husband Eric Oetjens sued the entities that manufactured the stapler: Medtronic USA, Inc., Medtronic, Inc., and Covidien LP (collectively “Covidien”).

    The Oetjens identified Larry Petersen as a third proposed expert witness. Per their expert disclosures, Petersen is “expected to testify concerning the mechanical use of the subject 28 [mm] EEA Circular Stapler.” 

    Covidien protests that the Oetjens’ failure to submit an expert report for Petersen violates Rule 26(a)(2)(B) and warrants exclusion of his testimony under Rule 37(c)(1).

    The parties agreed that Petersen is a retained expert witness who, pursuant to Rule 26(a)(2)(B), cannot offer expert testimony without first tendering a written expert report. They also agreed that no such written report has been produced. So the only question is whether the Oetjens can avoid Rule 37(c)(1)’s exclusion sanction by showing that their failure to comply with Rule 26(a)(2)(B) “was substantially justified or is harmless.”

    Automotive Engineering Expert Witness

    Larry Petersen is an automotive engineer whose litigation support work, in a primary engineering analysis and expert testimony role, includes detailed design, failure analysis and accident reconstructions including automotive components including engine, transmission, driveline, brake and suspension and engine/transmission control components.

    Get the full story on challenges to Larry Petersen’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    The Oetjens, seemingly pointing to Rule 37(c)(1)’s exception for “substantially justified” nondisclosure, responded that they cannot yet produce an expert report for Petersen for two reasons. First, they cited “outstanding discovery requests,” asserting that Petersen cannot offer an expert opinion on whether Covidien’s stapler fired without stapling or failed to fire at all until the Oetjens receive “an exemplar stapler to inspect” and depose a Rule 30(b)(6) Covidien representative with “a working knowledge of the mechanics of the stapler,” specifically whether the stapler can cut without stapling.

    Further, said Covidien, the Oetjens should have timely submitted an expert report for Petersen, “then supplemented it if necessary—or sought additional time.”

    It should be noted that Petersen’s testimony is contingent upon whether Covidien raises a user error argument. They say they identified Petersen as an expert witness “for the sole purpose of having an independent engineer available . . . in the event that [Covidien] takes the position that there was some type of user error on the part of the medical staff or that a mechanical issue arises with regard to the use of the stapler.” If Covidien argues user error, then the Oetjens will provide an expert report for Petersen. Otherwise, the Oetjens may not need Petersen’s expert testimony at all, or they may use Petersen only “as a potential engineering rebuttal witness” such that “there would be no need for an expert report.”

    Because the parties stipulated to stay Covidien’s expert disclosure deadline pending the resolution of its motions, it should be noted that Covidien “will not be prejudiced by allowing Petersen to submit his expert report, if necessary, once the outstanding discovery has been provided.” 

    On this key point, therefore, the Court found that the Oetjens’ failure to timely provide an expert report for Petersen is ultimately harmless.

    Held

    The Court denied without prejudice the Defendants’ motion to strike Larry Petersen’s testimony. It provided Covidien with the opportunity to depose Petersen and retain a rebuttal expert witness prior to trial. This will eliminate any prejudice to Covidien and aid in efficiency should Petersen’s expert report prove unnecessary.

    Key Takeaway:

    While Covidien made strong arguments that the Oetjens should have proceeded differently with respect to Petersen’s expert disclosures, the Court concluded that the Oetjens’ missteps were not ultimately prejudicial, so exclusion is not necessary on that ground.

    Petersen was identified as an expert witness for the sole purpose of having an independent engineer available in the event that [Covidien] takes the position that there was some type of user error on the part of the medical staff or that a mechanical issue arises with regard to the use of the stapler. Considering Petersen’s testimony was contingent upon whether Covidien raised a user error argument, it was likely that Oetjens may not need Petersen’s expert testimony at all.

    Case Details:

    Case Caption: Oetjens Et Al V. Medtronic, Plc Et Al
    Docket Number: 2:22cv11220
    Court: United States District Court, Michigan Eastern
    Order Date: January 16, 2025
  • Pediatrics Expert Witness’ Opinion on Forceps-Assisted Vaginal Delivery Excluded

    Pediatrics Expert Witness’ Opinion on Forceps-Assisted Vaginal Delivery Excluded

    The present case involved a medical malpractice claim filed by Plaintiffs Tyler Grenier and Jenna Grenier, individually, and as the next friend of minor J.A.G., against the Defendant United States of America (“Defendant”). The Plaintiffs alleged medical negligence at Tripler Army Medical Center (“Tripler”) concerning prenatal care and labor provided to Plaintiff Jenna Grenier (“Jenna”) and the delivery of J.A.G. The claims included severe physical injuries sustained by Jenna and J.A.G., negligent infliction of emotional distress on Tyler and Jenna, loss of filial consortium, and Tyler’s loss of spousal consortium.

    In the current motion, the Defendant sought to strike the expert testimony of Ofer Levy, a pediatrics expert witness presented by the Plaintiffs. Defendant argued that Levy’s expert report was filed after the expert report deadline, as a rebuttal report, and that he had not been previously disclosed as an expert.

    The Plaintiffs filed their opposition on August 13, 2024, asserting that Levy’s report was timely because the rebuttal disclosure deadline had been extended to June 10, 2024, the same day his report was disclosed.

    Defendant replied on August 20, 2024, contending that Ofer Levy’s expert report is not a rebuttal report because it did not respond to any new information and it is an entirely new expert witness with new opinions that should have been disclosed by the expert witness disclosure deadline of March 11, 2024. 

    Pediatrics Expert Witness

    Pediatrics Expert Witness

    Ofer Levy is principal investigator, staff physician and the Director of the Precision Vaccines Program at Boston Children’s Hospital, Professor of Pediatrics at Harvard Medical School, and Associate Member of the Broad Institute of MIT and Harvard. 

    After graduating from the Bronx High School of Science and then Yale College (B.S., Molecular Biophysics & Biochemistry), Levy received his MD and PhD degrees from New York University. 

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

    Discussion by the Court

    Dispute Over the Nature of Ofer Levy’s Report

    The parties agreed that Ofer Levy’s report was filed within the deadline for rebuttal expert reports. However, they disagreed on whether the report qualified as a rebuttal or an initial expert report. The Court determined that the report was an initial expert report, not a proper rebuttal.

    Ofer Levy’s opinion stated that the forceps-assisted vaginal delivery caused the minor Plaintiff’s injuries and that a cesarean section should have been performed instead. He further opined that the perinatal injuries would have been avoided with a cesarean section. This opinion mirrored that of Plaintiffs’ obstetrics and gynecology expert witness, Adam V. Levy, who had similarly concluded that a cesarean delivery would have prevented the injuries.

    The Court found that Ofer Levy’s report went beyond providing a rebuttal. Instead, it sought to reinforce the opinions already expressed by Adam V. Levy. This was impermissible, as it did not respond to new evidence but rather bolstered the original expert report. The Court referenced Parenti v. Cnty. of Monterey, where a purported rebuttal was excluded because it merely reinforced the original expert’s opinions.

    Violation of Federal Rule of Civil Procedure 37(c)(1)

    Under Federal Rule of Civil Procedure 37(c)(1), if a party fails to disclose expert testimony as required, the Court may exclude the testimony unless the failure is substantially justified or harmless. The Court ruled that Ofer Levy’s failure to disclose his expert status and report by the deadline was neither justified nor harmless. Consequently, the Court determined that the appropriate sanction was to strike Levy’s expert testimony and report.

    Factors for Exclusion Sanction

    To decide whether exclusion was appropriate, the Court considered several factors:

    1. The public’s interest in the swift resolution of litigation.
    2. The Court’s need to manage its docket efficiently.
    3. The risk of prejudice to the Defendant.
    4. The public policy favoring the resolution of cases on their merits.
    5. The availability of less severe sanctions.

    The Court found that the first three factors supported exclusion. The untimely disclosure would cause delays, which weighed against the Plaintiffs. The fourth factor was neutral, as striking Levy’s report would not dispose of the case. Finally, the fifth factor supported exclusion because the Plaintiffs could still proceed with their claims and trial without Levy’s testimony. Therefore, the Court decided to strike Levy’s expert report and testimony.

    Held:

    The Court, in light of the aforementioned discussion, granted Defendant’s motion to strike Plaintiff’s pediatrics expert witness Ofer Levy’s expert report and testimony.

    Key Takeaway:

    The Court struck the expert testimony of Ofer Levy because his report, filed after the expert deadline, was deemed an initial expert report rather than a rebuttal. The Court found that Levy’s testimony merely reinforced the opinions of another expert, Adam V. Levy, instead of responding to new evidence. Since Levy’s untimely disclosure was neither substantially justified nor harmless, the Court ruled that his report and testimony should be excluded as a sanction under Federal Rule of Civil Procedure 37(c)(1).

    Please refer to the blogs previously published about this case:

    Case Details:

    Case caption: Grenier Et Al V. United States Of America
    Docket Number: 1:22cv396
    Court: United States District Court for the District of Hawaii
    Dated: November 17, 2024
  • Radiology Expert Witness Barred From Testifying for Failing to Provide the Court With a Report

    Radiology Expert Witness Barred From Testifying for Failing to Provide the Court With a Report

    Plaintiff, Wendy Marie Henshaw alleged that she slipped and fell on a liquid substance on Defendant Wal-Mart’s premises on October 28, 2021.

    Henshaw filed a motion to strike Defendant’s expert witness Dr. Marc Fredric Glickstein. Henshaw noted that Defendant timely served its expert witness disclosure and listed Glickstein as an expert in diagnostic radiology; however, Defendant did not provide Plaintiff with Glickstein’s report. 

    Defendant contended that Glickstein has not yet prepared a report. Since Defendant is in the process of obtaining records and diagnostic studies for his review, the report will be provided to Plaintiff once it is completed.

    Radiology Expert Witness

    Marc Glickstein, MD, FACR, is a partner in a large private practice radiology group, on the senior medical staff of 8 area hospitals, and an assistant clinical professor of Radiology at University of CT School of Medicine. He has over 27 years of active clinical involvement in Neuroradiology, as well as General Radiology including MRI, Mammography, CT, and Ultrasound.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Marc Glickstein’s expert testimony.

    Discussion by the Court

    Rule 26 clearly states that, “Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness.” Rule 37 makes it clear that the party that failed to comply with Rule 26(a) bears the burden of establishing that its non-disclosure was either substantially justified or harmless.

    The Court held that Defendant has both failed to comply with Rule 26(a) and failed to show that its non-disclosure was either substantially justified or harmless. Consequently, Defendant will be prohibited from using Glickstein to supply evidence on a motion, at a hearing, or at trial.

    Held

    The Court granted Plaintiff Wendy Marie Henshaw’s motion to strike Defendant’s expert, Dr. Marc Frederic Glickstein. Consequently, Glickstein was stricken from Defendant’s expert witness disclosure.

    Key Takeaway:

    Despite timely serving its expert witness disclosure, Defendant did not provide Plaintiff with Glickstein’s report. Defendant also failed to show that its non-disclosure was either substantially justified or harmless.

    Case Details:

    Case Caption: Henshaw V. Wal-Mart Stores East, LP
    Docket Number: 6:23cv2388
    Court: United States District Court, Florida Middle
    Order Date: July 11, 2024
  • Economics Expert Witness’ Report ran afoul of Rule 26 Requirements

    Economics Expert Witness’ Report ran afoul of Rule 26 Requirements

    Plaintiff, a long-time employee of Chevron, filed his First Amended Complaint on August 22, 2023 and alleged that Chevron’s Pascagoula Refinery had been marred by racism and sexism, that his contributions to the company exceeded his compensation, and that “discriminatory practices have prevented him from being promoted.”

    The issue before the Court is whether the expert witness report for Plaintiff’s damages expert should be stricken. On July 19, 2024, Plaintiff designated Charles Baum as a damages expert and provided Defendant with a copy of Baum’s expert report.

    Defendant argued that Baum’s report ran afoul of Fed. R. Civ. P. 26(a)(2)(B)(ii) as the report “failed to identify all the documents upon which Baum relied in forming his expert opinions.” Specifically, Defendant contended that the following documents relied upon by Plaintiff’s expert were not clearly identified in the expert report nor were they produced by Plaintiff: (i) Income tax statement for [Plaintiff] for 2023 (ii) Chevron employee savings investment plan (January 1, 2014) (iii) Chevron employment benefits for [Plaintiff] (various dates).

    Economics Expert Witness

    Charles L. Baum II is a professor of economics and finance at Middle Tennessee State University. Moreover, he has a Ph.D. in economics from the University of North Carolina at Chapel Hill. In addition, he holds both a B.A. in political science and a B.A. in economics from Wake Forest University.

    Get the full story on challenges to Charles Baum’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Income Tax Statement for [Plaintiff] for 2023

    Regarding the “Income Tax Statement for [Plaintiff] for 2023,” Defendant claimed that Plaintiff has not produced any tax-related records for 2023.

    The Court held that Defendant should not be obligated to engage in guesswork as to which document may (or may not) be the “Income Tax Statement for [Plaintiff] for 2023” relied upon in Baum’s expert report. Nor should the Court. Accordingly, the Court found that the document identified as “Income Tax Statement for [Plaintiff] for 2023” was not properly disclosed in Baum’s expert report.

    Chevron employee savings investment plan (January 1, 2014)” and “Chevron employment benefits for [Plaintiff] (various dates)

    As to the other documents, Defendant asserted that Plaintiff has not produced any employee savings investment plan dated January 1, 2024, nor any documents related to “employment benefits” for any date.

    It is Plaintiff’s obligation under Fed. R. Civ. P. 26(a)(2)(B)(ii) to disclose “the facts or data considered by” Baum in forming his opinion. Plaintiff has not convinced the Court that he provided Defendant with the documents titled “Income tax statement for [Plaintiff] for 2023,” “Chevron employee savings investment plan (January 1, 2014),” or “Chevron employment benefits for [Plaintiff] (various dates)” as relied upon in Baum’s expert report.

    Authority to Strike

    Under Rule 37(c)(1), a party who fails to provide information required by Rule 26(a) “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.”

    Turning to the first factor, and as noted above, Plaintiff does not explicitly dispute whether he provided the documents at issue that were relied upon in Baum’s expert report. Rather, he contends that Defendant either possessed the documents at issue or that it was obligated to produce them. Plaintiff ignores the mandates of Fed. R. Civ. P. 26(a)(2)(B)(ii) which demands that he provide the documents relied upon in Baum’s written report. This factor weighs in favor of exclusion.

    As for the second factor, Baum’s testimony is certainly important. Baum is the only expert designated by Plaintiff to support any evaluation of damages in this matter. This factor weighs against exclusion.

    As for the third factor, Defendant contends that, without an adequate report, it has been prejudiced. Specifically, Defendant argues that it has been prevented from “adequate[ly] prepar[ing] for its expert designation, which is due August 20, 2024.” This factor slightly favors exclusion, but, as discussed below, any such prejudice can be cured. Finally, the Court may cure any prejudice to Defendant by allowing Plaintiff to supplement Baum’s report and by granting an extension of Defendant’s expert designation deadline.

    On balance, the Court found that striking Baum’s report is too harsh a remedy under the circumstances.

    Held

    In conclusion, the Court granted in part and denied in part the Defendant Chevron U.S.A., Inc.’s motion to strike the report of Plaintiff’s expert economist, Charles Baum.

    Key Takeaway:

    • First, the mere fact that the information relied upon in the report is public information does not absolve Plaintiff from disclosing it.
    • Second, Plaintiff ignored the mandates of Fed. R. Civ. P. 26(a)(2)(B)(ii) which demanded that he provide the documents relied upon in Baum’s written report.
    Case Caption: Harness V. Chevron U.S.A., Inc.
    Docket Number: 1:23cv210
    Court: United States District Court, Mississippi Southern
    Order Date: August 19, 2024