United States District Court, D. Maine
BRIAN C. DOWNING, Plaintiff
SELECT REHABILITATION, INC., Defendant
MEMORANDUM DECISION AND ORDER ON PLAINTIFF'S
MOTION TO EXCLUDE TESTIMONY OF DEFENDANT'S EXPERT
H. Rich III United States Magistrate Judge
plaintiff in this whistleblower employment action moves to
exclude the testimony of defendant Select Rehabilitation,
Inc.'s (“Select's”) expert witness
Michael Sciacca on the bases that the designation was
deficient pursuant to Federal Rule of Civil Procedure
26(a)(2)(B) and that the anticipated testimony does not meet
the standards of Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v.
Carmichael, 526 U.S. 137 (1999). See
Plaintiff's Daubert/Kumho Motion To
Exclude Testimony of Defendant's Experts Michael Sciacca
and Sheryl Rosenfield (“Motion To Exclude”) (ECF
No. 26) at 1-2. Select moves to supplement its opposing
brief with evidence, including a supplemental report by
Sciacca. See Defendant Select Rehabilitation[, ]
Inc.['s] Motion To Supplement Its Offer of Proof Pursuant
to Federal Rule of Evidence 103(a)(2) (“Motion To
Supplement”) (ECF No. 38); Memorandum Dated June 23,
2017, from Michael Sciacca, MHA, MPT, re: Electronic
Communication between Regional and in-house Director of Rehab
(“Sciacca Report”), Exh. 1 (ECF No. 38-1)
thereto. For the reasons that follow, I grant the Motion To
Supplement but also grant the Motion to Exclude.
Manner in Which To Raise Disputes Over Sufficiency of Expert
both this case and a decision issued today in DePaolo v.
GHM Portland Mar, LLC, d/b/a Portland Marriott at Sable
Oaks, No. 2:16-cv-00468-NT (D. Me.), disputes over the
sufficiency of expert designations were raised by way of
motions filed in the absence of any attempt by the movants to
meet and confer with opposing counsel in a good-faith effort
to resolve those issues before court intervention. This was
improper. In each case, as discussed below and in
DePaolo, that impropriety proves not to be
dispositive against the movants. However, on different facts,
it could be. See White v. Meador, 215 F.Supp.2d 215,
221 (D. Me. 2002) (denying defendants' motion to strike
expert designation in part on basis that they raised no issue
with plaintiff or court regarding its insufficiency until
months had passed and the case had been scheduled for trial;
observing, “Counsel must at least give opposing counsel
a timely opportunity to remedy omissions in the required
designations before seeking assistance from the court in
obtaining the necessary information, which should also be
done well before the close of discovery.”).
is reminded that a dispute over the sufficiency of an expert
designation is a discovery dispute to be handled in the
manner prescribed by Local Rule 26(b). That rule prohibits
the filing of written discovery motions without the prior
approval of a judicial officer and directs that “[a]
party with a discovery dispute . . . first confer with the
opposing party in a good faith effort to resolve by agreement
the issues in dispute[, ]” failing which “the
moving party shall then seek a prompt hearing with a judicial
officer by telephone or in person.” Loc. R. 26(b).
Select's Motion To Supplement
the hearing held on June 27, 2017, Downing's counsel
opposed Select's Motion To Supplement on the basis that
Select had improperly filed the Sciacca Report as an
attachment to a motion rather than serving it on Downing
pursuant to Federal Rule of Civil Procedure 26(e)(2).
added that, in her experience, an offer of proof typically is
made at trial rather than by way of a motion such as that
filed by Select. She argued that, in any event, the Sciacca
Report was untimely.
is correct that the Sciacca Report should have been served
upon him as a supplemental expert disclosure pursuant to
Federal Rule of Civil Procedure 26(e)(2), triggering the
requirements of Local Rule 26(b). Yet, Select's motion to
proffer evidence was not an improper discovery motion, but
rather a motion to place evidence before the court prior to
its ruling on Downing's motion to exclude.
Select's counsel argued at hearing, in view of the
pendency of the Motion To Exclude, the Sciacca Report and
accompanying evidentiary materials were properly proffered
pursuant to Federal Rule of Evidence 103(a)(2), which covers
pretrial as well as trial rulings on motions to exclude
103 provides, in relevant part:
(a) Preserving a Claim of Error. A party may
claim error in a ruling to admit or exclude evidence only if
the error affects a substantial right of the party and:
(2) if the ruling excludes evidence, a party
informs the court of its substance by an offer of proof,
unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of
Proof. Once the court rules definitively on the
record - either before or at trial - a party need not renew
an objection or offer of proof to preserve a claim of error
Fed. R. Evid. 103(a)(2) & (b). Because Downing had filed
a motion to exclude evidence, and Rule 103 applies to
pretrial rulings, Select properly made a proffer of evidence
to the court in advance of its ruling on Downing's
these reasons, I grant the Motion To Supplement.
Downing's argument that the proffered evidence is
untimely bears on the merits of his motion rather than that
of Select. Accordingly, I address that point below.
Downing's Motion To Exclude
Applicable Legal Standards
Rule 26 Challenge
Federal Rule of Civil Procedure 26 provides, in relevant
part, that “a party must disclose to the other parties
the identity of any [expert] witness it may use at trial to
present evidence[.]” Fed.R.Civ.P. 26(a)(2)(A). “A
party must make these disclosures at the times and in the
sequence that the court orders.” Id. at
(a)(2)(D). Both Rule 26(a)(2)(B) and the court's
scheduling order provide that, if an expert witness is
retained or specially employed to provide testimony in the
case, or is a party's employee whose duties regularly
involve giving expert testimony, the disclosure must contain
six categories of information, although, pursuant to the
court's scheduling order, that information need not be
provided in the form of a written report prepared and signed
by the expert. See id. at (a)(2)(B); Scheduling
Order (ECF No. 9) at .
categories of information required to be disclosed include:
“(i) a complete statement of all opinions the witness
will express and the basis and reasons for them;” and
“(ii) the facts or data considered by the witness in
forming them[.]” Fed.R.Civ.P. (a)(2)(B)(i)-(ii).
For an expert whose report must be disclosed under Rule
26(a)(2)(B), the party's duty to supplement extends both
to information included in the report and to information
given during the expert's deposition. Any additions or
changes to this information must be disclosed by the time the
party's pretrial disclosures under Rule 26(a)(3) are due.
Fed. R. Civ. P. 26(e)(2).
a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
37(c)(1). The movant bears the burden of demonstrating that a
late and/or insufficient expert designation is either
substantially justified or harmless. See, e.g., United
States Bank Nat'l Ass'n v. James, Civil No.
09-84-P-JHR, 2010 WL 1416126, at *6 (D. Me. Apr. 5, 2010).
baseline rule is that the required sanction in the ordinary
case is mandatory preclusion.” Harriman v. Hancock
Cty., 627 F.3d 22, 29 (1st Cir. 2010) (citations and
internal punctuation omitted). However, the court retains
discretion to impose other sanctions in lieu of, or in
addition to, mandatory preclusion. See Fed. R. Civ.
P. 37(c)(1); see also, e.g., Esposito v. Home Depot
U.S.A., Inc., 590 F.3d 72, 77-78 (1st Cir. 2009)
(“Preclusion . . . is not a strictly mechanical
exercise. And, in its discretion, the district court may
choose a less severe sanction. Where a district court does
opt in favor of preclusion, we review that decision with
reference to a host of factors, including: (1) the history of
the litigation; (2) the sanctioned party's need for the
precluded evidence; (3) the sanctioned party's
justification (or lack of one) for its late disclosure; (4)
the opponent-party's ability to overcome the late
disclosure's adverse effects - e.g., the surprise and
prejudice associated with the late disclosure; and (5) the
late disclosure's impact on the district court's
docket.”) (citations and some internal quotation marks
Federal Rule of Evidence 702 governs the admissibility of
witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the ...