United States District Court, D. Maine
ORDER ON DEFENDANTS' JOINT MOTION TO EXCLUDE
SUPPLEMENTAL EXPERT DISCLOSURE
LEVY U.S. DISTRICT JUDGE
Maine Medical Center (“MMC”) submitted a
supplemental expert disclosure for Gus Doughty, one of its
designated expert witnesses, on January 17, 2017. Defendants
have moved to exclude the supplemental disclosure as untimely
under Federal Rules of Civil Procedure 26(e)(2) and 37(c).
ECF No. 130.
case arises out of alleged defects in the construction of
Maine Medical Center's East Tower. MMC asserts that the
Defendants, who were involved in the initial design and
construction of the East Tower, are liable for the costs
associated with fixing these defects. The parties have
completed nearly all of the discovery, and the Defendants and
Third-Party Defendants have filed notice with the Court of
their intent to seek summary judgment.
Doughty has been designated as an expert by MMC to offer his
opinion on the construction costs associated with the repairs
to the East Tower. In accordance with the Court's
scheduling order, MMC submitted its initial disclosures of
its experts in June 2016. At that time, MMC was claiming
approximately 5 million dollars in construction damages, and
approximately 23 million dollars in lost revenue damages. The
lost revenue damage figure was based on a plan to fix the
defects in the East Tower by closing and renovating a few
patient rooms at a time over the course of a 93-week
construction schedule, so as to minimize impacts on patient
November 2016, the MMC personnel involved with this
litigation realized that MMC needed to amend its damages
theory after they consulted with Heidi Morin, MMC's
Patient Care Service Director for the East Tower. Morin
vehemently objected to any construction plan that would
involve the temporary closure of patient rooms. As a
consequence of that meeting, MMC developed a new remediation
plan that involves moving patient rooms to two new floors
that MMC plans to add to the East Tower. The two new floors
will be constructed as part of an ongoing expansion of the
hospital unrelated to the construction that is the subject of
this lawsuit. MMC asserts that none of its personnel involved
with this litigation was aware of the unrelated plan to
construct these two new floors at the time that MMC
formulated its initial remediation plan, and maintains that
the initial remediation plan was the best option available at
revised remediation plan calls for outfitting the two new
floors to allow them to house patients from the East Tower
during construction, to be followed by retrofitting those
floors so that they will serve their original purpose once
the remediation of the East Tower is completed. This proposed
construction is forecast to cost approximately 16 million
dollars, and the supplement to Doughty's expert
disclosure describes those costs. MMC notified the Defendants
in an email sent to them in the days following the November
2016 meeting that it anticipated changes to its damages
claim, though it did not disclose the scope of those changes
until it submitted its supplement to Doughty's expert
disclosure on January 17, 2017.
argue that MMC's supplement to Doughty's expert
testimony is not timely because it does not qualify as a
supplement under Federal Rule of Civil Procedure 26(e), and
should be excluded under Rule 37(c) as untimely and
prejudicial. Plaintiff responds that the supplement qualifies
as a timely supplement under Rule 26(e), or, in the
alternative, that any lateness should be excused because the
revision of its damages theory was substantially justified
and any prejudice to the Defendants can easily be cured.
Federal Rule of Civil Procedure 26
Federal Rule of Civil Procedure 26 governs the conduct of
discovery and the parties' duty to disclose information.
Parties have a duty to supplement information given by expert
witnesses in their reports and at their depositions, and any
additions or changes must be disclosed at least 30 days prior
to trial, unless the court orders otherwise. Fed.R.Civ.P.
26(e)(2); Fed.R.Civ.P. 26(a)(3). Plaintiff asserts that its
submission qualifies as a supplement to Doughty's
disclosure under Rule 26, and was therefore timely made.
as contemplated by Rule 26 is a method of “correcting
inaccuracies, or filling the interstices of an incomplete
report based on information that was not available at the
time of the initial disclosure.” Keener v. United
States, 181 F.R.D. 639, 640 (D. Mont. 1998). “[I]f
a supplemental expert disclosure presents a new theory of the
case, the district court has the discretion to exclude it and
if it represents a refinement, the expert should be allowed
to testify.” Maine Human Rights Comm'n v.
Sunbury Primary Care, P.A., 770 F.Supp.2d 370, 389 (D.
supplement offered by MMC in this case does not fit
comfortably within the contours of Rule 26(e)(2). The new
damages theory proposed by MMC is not properly characterized
as a “refinement” of the original theory of
damages presented in Doughty's initial disclosure.
See Id. It instead presents a new theory of damages.
As such, it is not a refinement of Doughty's initial
expert disclosure and was not timely under Rule 26.
Accordingly, its admissibility is properly analyzed under
Federal Rule of ...