United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge.
matter is before the Court on the Defendants' MOTION TO
EXCLUDE TESTIMONY CONTAINED IN THE AMENDED EXPERT REPORT OF
MICHAEL J. KATZ, MD, OR, IN THE ALTERNATIVE, MOTION TO STRIKE
THE AMENDED EXPERT REPORT OF MICHAEL J. KATZ, MD (ECF No. 52)
(the "Motion to Exclude"); the DEFENDANTS'
RENEWED MOTION TO EXCLUDE TESTIMONY OF PLAINTIFF'S
STANDARD OF CARE AND CAUSATION EXPERT, MICHAEL J. KATZ (ECF
No. 76) (the "Daubert Motion"); and the
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 73)
(collectively, the "Motions"). For the reasons set
forth on the record during the hearing on April 23, 2019 and
in this MEMORANDUM OPINION, the Court denied these Motions by
an ORDER entered on April 23, 2019 (ECF No. 91).
General Factual Background
medical malpractice case, John Kinlaw (``Kinlaw")
alleges that Defendants, Dr. Charles Nwaokocha (``Dr.
Nwaokocha") and Armor Correctional Health Services, Inc.
("Armor") (collectively, the ``Defendants")
failed properly to treat Kinlaw's broken finger, leading
to permanent damage to the finger. See Compl. ¶
1-6 (ECF No. 1). At the time of the alleged malpractice,
Kinlaw was incarcerated at Lunenburg Correctional Center
(``LCC") . Id. ¶ 1. During the relevant
time period, Dr. Nwaokocha was an employee of Armor, which
contracted with the Virginia Department of Corrections to
provide health care services at LCC. Id.
¶¶ 10, 19.
alleges that Dr. Nwaokocha committed medical malpractice by,
inter alia: (1) delaying the treatment of his finger
injury; (2) failing to properly stabilize the injury; and (3)
failing to promptly refer him to a specialist. See
id. ¶¶ 20-90. Kinlaw seeks compensatory
damages (including pain and suffering and lost income);
damages for lost earning potential; punitive damages; special
damages; and costs and attorney's fees. Id. at
Background Relevant To The Motions
April 25, 2018, the Court entered a SCHEDULING ORDER (ECF No.
15) establishing the default pretrial schedule for the case,
"except to the extent amended or augmented by the terms
of the Initial Pretrial Order issued after the pretrial
conference or by any other Order." That SCHEDULING ORDER
(ECF No. 15) included the Court's standard "Pretrial
Schedule A," which, inter alia, provides rules
pertaining to expert witnesses. See id. ¶ IV.
It requires, inter alia, that "Local Rule 26
shall govern disclosure and discovery of experts and their
reports" and that
[u]nless the Court orders otherwise for good cause shown,
expert witnesses and reports not disclosed as required by
Fed.R.Civ.P. 26(a) (2) and (3) and the deadlines established
herein shall not be allowed to testify or be admitted into
evidence, as the case may be.
Id. Neither the SCHEDULING ORDER nor the Pretrial
Schedule A were modified by the INITIAL PRETRIAL ORDER (ECF
the Court entered an Order requiring, inter alia,
that the ``plaintiff shall serve expert disclosures under
Fed.R.Civ.P. 26 on December 3, 2018; defendants shall serve
responsive reports on January 4, 2019; the plaintiff shall
serve the rebuttal report by January 15, 2019; and all expert
depositions shall be concluded by January 30, 2019." ECF
No. 26 ¶ 5. Then, by Order entered on December 4, 2018,
the discovery schedule was modified to extend the close of
discovery (including the deadline for expert depositions) to
January 31, 2019. ECF No. 41. The Court then entered an
AGREED ORDER (ECF No. 51) establishing various pretrial
deadlines. The trial date was continued to June 17-21,
2019. ECF No. 48.
basis of the Motions is the expert report and possible trial
testimony of Kinlaw's expert witness, Michael J. Katz,
M.D. (``Dr. Katz"). See, e.g., ECF No. 53; ECF
No. 77. Kinlaw properly designated Dr. Katz as an expert
witness and timely disclosed Dr. Katz's expert report
(the "first report") to the Defendants on December
4, 2018. See Apr. 23 Hr'g Tr. at 8 (hereinafter,
``Hr'g Tr.") (ECF No. 95). In response, the
Defendants submitted their expert designations on January 4,
2019. Id. at 9. Dr. Katz was then deposed on January
25, 2019 (six days before the close of discovery).
Id. Following his deposition, on the evening of
January 31, 2019 (the last day of discovery), Kinlaw
submitted a second expert report by Dr. Katz (the
"second report"), which purported to clarify
certain issues that arose at Dr. Katz's deposition six
days earlier. Id.; id. at 28-31.
Defendants' Motion to Exclude (ECF No. 52), the
Defendants move to exclude testimony contained in, or
alternatively to strike entirely, the second report. They
argue that Dr. Katz's second report was untimely and was
an improper supplementation of an expert report. In the
Defendants' Daubert Motion (ECF No. 76), the
Defendants move to exclude Dr. Katz's standard of care
and causation opinions. Finally, largely assuming that the
Court would grant the Motion to Exclude and/or the
Daubert Motion (i.e. exclude entirely, or
curtail significantly, Kinlaw's primary expert witness),
the Defendants moved for summary judgment. ECF No. 73.
parties fully briefed the Motions and the Court heard oral
argument on them on April 23, 2019. For the reasons stated on
the record on April 23, 2019, and as set forth below, the
Motions were denied. ECF No. 91.
the several Motions present slightly different issues, the
nub of the Defendants' argument is that Kinlaw improperly
filed the second report of Dr. Katz. The second report, argue
the Defendants, was untimely and is an improper
supplementation of the initial report. As explained below,
the second report was neither untimely nor an improper
supplementation that violated Fed.R.Civ.P. 26. However, the
fact that it was provided so late in the discovery process
made it nearly impossible for the Defendants properly to
respond to it. Accordingly, as set forth below, the Court
permitted the Defendants to re-depose Dr. Katz ``on all
topics raised in the [second] report. Hr'g Tr. at 42.
These issues will be addressed in turn.
first necessary to set forth the legal framework necessary
for deciding the Motions.
Civ. P. 26(a)(2) sets forth the general requirements that
parties must disclose the identities of their expert
witnesses and provide a written expert report. Fed.R.Civ.P.
26(a)(2)(B) details the requirements of the expert's
written report, which includes ``a complete statement of all
opinions the witness will express and the basis and reasons
for them." Id. (a) (2) (B) (i) . And,
Fed.R.Civ.P. 26(a)(2)(E) requires that the parties
"supplement these [expert] disclosures when required
under Rule 26(e)." See Sharpe v. United States,
230 F.R.D. 452, 456 (E.D. Va. 2005) (describing requirements
of Rule 26, including duty to supplement).
to Rule 26(e), it reads, in full:
Disclosures and Responses.
(1) In General. A party who has
made a disclosure under Rule 26(a)-or who has responded to an
interrogatory, request for production, or request for
admission-must supplement or correct its disclosure or
(A) in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during
the discovery process or in writing; or
(B) as ordered by the court.
(2) Expert Witness. 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 ...