United States District Court, D. Maine
DALE E. BURTON, Plaintiff
S.D. WARREN COMPANY d/b/a SAPPI FINE PAPER NORTH AMERICA Defendant
MEMORANDUM DECISION AND ORDER ON DEFENDANT'S
MOTION TO STRIKE PLAINTIFF'S EXPERT WITNESS
H. Rich III United States Magistrate Judge
S.D. Warren Company d/b/a Sappi Fine Paper North America
(“Sappi”) moves to strike plaintiff Dale E.
Burton's May 31, 2019, designation of treating counselor
Lynn Hamilton as an expert witness on the bases that it is
untimely, made in bad faith, and incomplete. See
Defendant's Motion To Strike Plaintiff's Supplemental
Expert Witness Designation (“Motion”) (ECF No.
122) at 7-10. Because I find that the plaintiff's
late designation was substantially justified and harmless,
and the defendant's completeness argument is not ripe,
the Motion is denied.
Applicable Legal Standard
addition to the disclosures required by [Federal] Rule [of
Civil Procedure] 26(a)(1), a party must disclose to the other
parties the identity of any witness it may use at trial to
present evidence under Federal Rule of Evidence 702, 703, or
705.” Fed.R.Civ.P. 26(a)(2)(A). If the witness must
provide a written report, unless otherwise stipulated or
ordered by the court, the disclosure must be accompanied by a
written report containing six categories of information.
See Fed.R.Civ.P. 26(a)(2)(B). If the witness need
not provide a written report, unless otherwise stipulated or
ordered by the court, the disclosure must state “the
subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or
705” and “a summary of the facts and opinions to
which the witness is expected to testify.” Fed.R.Civ.P.
26(a)(2)(C). “A party must make these disclosures at
the times and in the sequence that the court orders.”
case, the court's scheduling order required the plaintiff
to designate all experts required to be disclosed pursuant to
Rule 26(a)(2)(A), including treating physicians, and, with
respect to each of them, provide a complete statement of all
opinions to be expressed and the basis and reasons therefor,
by December 18, 2018. See ECF No. 90 at 2.
a party fails to . . . identify a witness as required by Rule
26(a) . . ., the party is not allowed to use that . . .
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 burden is
on the party that has failed to comply with discovery
deadlines to establish that his failure is harmless or
substantially justified.” U.S. Bank Nat'l
Ass'n v. James, Civil No. 09-84-P-JHR, 2010 WL
1416126, at *6 (D. Me. Apr. 5, 2010).
plaintiff, a former longtime employee of the defendant,
brings claims for (i) disability-based discrimination in
violation of the Americans with Disabilities Act, 42 U.S.C.
§ 12101et seq., and the Maine Human Rights Act,
5 M.R.S.A. § 4551 et seq., and (ii)
interference with his rights pursuant to the Family Medical
Leave Act, 29 U.S.C. § 2601 et seq., in
connection with his termination from employment on March 2,
2017. Third Amended Complaint (ECF No. 81) ¶¶ 1,
December 18, 2018, the plaintiff designated one expert,
Morgan M. Buehner, M.D., whom he indicated had begun
providing him care in August 2018. F.R.Civ.P. 26(a)(2)(A)
Designations (“Buehner Desig.”), Exh. 1 (ECF No.
122-1) to Motion, at 1. He stated that Dr. Buehner had
examined him and assessed him with “obstructive sleep
apnea (potentially including a sleep-wake cycle disorder),
hypertension, uncontrolled type 2 diabetes mellitus,
hypercholesterolemia, depression with anxiety (associated
with panic attacks and potentially including an attention
deficit disorder) and memory impairment[, ]” and that,
in her opinion, “[t]hese conditions, many of which are
poorly controlled, likely contributed and continue to cause
Burton difficulty with concentration, memory, and filtering
9, 2019, in response to a motion filed by the defendant to
amend the parties' scheduling order deadlines, the
plaintiff indicated that “[t]he parties are faced with
an evolving diagnosis and treatment picture which is not the
result of dilatory conduct by either party[.]” ECF No.
113 at 1. He explained that, after a 20-year hiatus, he had
resumed seeing Ms. Hamilton twice a week as of March 28,
2019, and was scheduled to see a psychiatrist, Dr. Matthew
Johnson, on May 15, 2019. Id. at 3. He represented
that, on May 3, 2019, his counsel had informed the
defendant's counsel that he would “need to
supplement his expert witness designation to include
counselor Hamilton and potentially Dr. Johnson[, ]” and
the defendant's counsel had initially indicated that the
defendant would object. Id.
23, 2019, the defendant filed a reply in support of its
motion to amend the scheduling order, arguing that “the
Court should not grant Plaintiff carte blanche to reconfigure
his expert testimony, more than five (5) months after his
original designation, years after his termination, and
without timely requesting an extension of his expert
designation deadline.” ECF No. 115 at 5.
31, 2019, the plaintiff designated Ms. Hamilton as a
“supplemental” expert witness. Burton's
Supplemental Expert Witness Designation (“Hamilton
Desig.”), Exh. 4 (ECF No. 122-4) to Motion. He stated
that Ms. Hamilton had initially counseled him from May 1993
through October 1994 in conjunction with treating a family
member and, from September 2003 through early 2004, had
provided family therapy that included him. Id. He
indicated that, per Dr.
recommendation, he had returned to Ms. Hamilton on March 28,
2019, and had been receiving regular treatment since that
time. He summarized her opinion as follows:
Hamilton believes that Burton suffers from chronic depression
with anxiety. This condition, apparently conjoined in
approximately 2016 and early 2017 with emergent memory and
concentration problems, resulted in Burton experiencing
stress and ...