Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Maine Medical Center v. William A. Berry & Son, Inc.

United States District Court, D. Maine

April 20, 2017

MAINE MEDICAL CENTER, Plaintiff,
v.
WILLIAM A. BERRY & SON, INC. et al., Defendants,
v.
PHOENIX BAY STATE CONSTRUCTION, et al., Third-Party Defendants.

          ORDER ON DEFENDANTS' JOINT MOTION TO EXCLUDE SUPPLEMENTAL EXPERT DISCLOSURE

          JON D. LEVY U.S. DISTRICT JUDGE

         Plaintiff 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.

         I. BACKGROUND

         This 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.

         Gus 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 care.

         In 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 the time.

         The 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.

         II. LEGAL ANALYSIS

         Defendants 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.

         A. 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).[1] Plaintiff asserts that its submission qualifies as a supplement to Doughty's disclosure under Rule 26, and was therefore timely made.

         Supplementation 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. Me. 2011).

         The 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 Rule 37(c).

         B. Federal Rule of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.