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Burton v. S.D. Warren Co.

United States District Court, D. Maine

July 18, 2019

DALE E. BURTON, Plaintiff
v.
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 DESIGNATION

          John H. Rich III United States Magistrate Judge

         Defendant 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.[1] 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.

         I. Applicable Legal Standard

         “In 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.” Fed.R.Civ.P. 26(a)(2)(D).

         In this 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.

         “If 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).

         II. Factual Background

         The 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, 81-104.

         On 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 outbursts.” Id.

         On May 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.

         On May 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.

         On May 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.

         Buehner's 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 ...

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