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Downing v. Select Rehabilitation, Inc.

United States District Court, D. Maine

August 31, 2017

BRIAN C. DOWNING, Plaintiff
v.
SELECT REHABILITATION, INC., Defendant

          MEMORANDUM DECISION AND ORDER ON PLAINTIFF'S MOTION TO EXCLUDE TESTIMONY OF DEFENDANT'S EXPERT WITNESS

          John H. Rich III United States Magistrate Judge

         The 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.[1] 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.

         I. Manner in Which To Raise Disputes Over Sufficiency of Expert Designations

          In 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.”).

         The Bar 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).

         II. Select's Motion To Supplement

         During 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).

         She 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.

         Downing 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.

         As 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 evidence.

         Rule 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 for appeal.

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 motion.

         For 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.

         III. Downing's Motion To Exclude

         A. Applicable Legal Standards

         1. 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 [2].

         The six 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).

         Rule 26 also states:

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).

         “If 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).

         “The 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 omitted).

         2. Daubert/Kumho Challenge

          Federal Rule of Evidence 702 governs the admissibility of expert testimony:

         A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the ...


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