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United States District Court, E.D. Pennsylvania

April 1, 2004.


The opinion of the court was delivered by: JACOB HART, Magistrate Judge


I. Introduction

Defendants move for an order striking Plaintiffs' objection to the submission of a supplemental expert report by their expert, Dr. William J. Richtsmeier. As discussed below, Defendants' motion will be granted.

 II. Factual Background

  In this medical malpractice case, the Honorable Stewart Dalzell issued a scheduling order which provided for the simultaneous exchange of the parties' expert reports on January 26, 2004. Order of November 3, 2003, attached to Defendants' Motion as Exhibit A. Experts were to be deposed by February 27, 2004. Id.

  This case was subsequently referred to this Court by consent of the parties, and pursuant to 28 U.S.C. § 636(c). Following a telephonic conference with counsel for the parties, I entered a supplemental scheduling order, setting forth additional deadlines for the submission of pretrial materials. Order of November 28, 2003, attached to Defendants' Motion as Exhibit B. Neither party requested that I amend Judge Dalzell's order to permit the Defense to submit its expert report (or reports) after the Plaintiffs. Later, at Plaintiffs' request, I extended the deadline for the submission of expert reports to February 16, 2004. Amended Scheduling Order, attached to Defendants' Motion as Exhibit C. All depositions were to be complete no later than March 12, 2004. Id. Here, again, neither party asked for anything other than simultaneous exchange of expert reports.

  The parties agree that Defendants forwarded Dr. Richtsmeier's report to Plaintiffs on February 16, 2004, as required. The report of Plaintiffs' expert, Dr. Harry Cantrell, was mailed on February 17, 2004. On March 3 and 5, 2004, Plaintiffs forwarded to Defendants certain information about Dr. Cantrell which was required by Fed. Rule Civ. Pr. 26(a)(2)(B), specifically: (1) a list of the data upon which he relied in forming his opinion; (2) the compensation which he was to be paid; and (3) a list of other cases in which he had recently testified as an expert.

  On March 4, 2004, Defendants sent to the Plaintiffs a supplemental report prepared by Dr. Richtsmeier after seeing Dr. Cantrell's report. Plaintiffs informed defense counsel that they would object to the production of this supplemental report, since the deadline for submission of reports had passed. Consequently, on March 10, 2004, Defendants filed this motion seeking to strike Plaintiffs' objection to Dr. Richtsmeier's supplemental report.

 III. Legal Authority

  Under Fed.R.Civ.Pr. 26(a)(2), disclosure of expert reports "shall be made at the times and in the sequence directed by the court." Only "in the absence of other directions from the court or stipulation by the parties" are the parties to rely upon language in the rule that states that supplemental reports may be submitted "within 30 days after the disclosure made by the other party." Nevertheless, looking down the line toward trial, it is important to note that "testimony of an expert on matters within the expert's expertise but outside of the expert's report is not only permissible at trial, but the exclusion of such testimony may be reversible error . . . An expert may testify beyond the scope of his report absent surprise or bad faith." Bowersfield v. Suzuki Motor Corp., 151 F. Supp.2d 625, 631 (E.D. Pa. 2001): Fritz v. Consolidated Rail Corp., Civ. A. No. 90-7530, 1992 WL 96285 at *3 (E.D. Pa. Apr. 23, 1992). citing DeMarines v. KLM Royal Dutch Airlines. 580 F.3d 1193 (1978) (in which the Court of Appeals for the Third Circuit reversed a District Court's decision not to permit testimony at trial which was outside of the scope of the expert's report).

  Factors to be considered by the District Court in considering whether to exclude testimony for failure to comply with pre-trial requirements are:

(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified (or, in this case against whom the excluded testimony would be directed);
(2) the ability of that party to cure the prejudice;
(3) the extent to which waiver of the rule at issue would disrupt the orderly and efficient trial of the case or of other cases in the court; and
(4) bad faith or willfulness in failing to comply with the court's order.
DeMarines, supra, at 580 F.2d 1202; Bowersfield, supra, at 151 F. Supp.2d at 631.

 IV. Discussion

  Defendants argue that Dr. Richtsmeier's supplemental report was timely under Rule 26 because it was produced within thirty days of their opponent's report. It is evident from the above look at Rule 26 that this argument is unfounded. The parties in this case were subject to "other directions from the court." Defendants' argument that their lateness is excused because Dr. Cantrell's report was served one day late, and because additional Rule 26 information came only later, is equally misguided. Plainly, Dr. Richtsmeier was not waiting to find out how much compensation Dr. Cantrell would receive, or the names of other cases in which he had testified, to respond to his medical findings. Thus, any failure of compliance by Plaintiff's is irrelevant here.

  Nevertheless, it is equally evident from the above legal discussion that Dr. Richtsmeier's statements in his supplemental report will ultimately be admitted at trial. It is difficult to conceive of a fair medical malpractice trial in which one party's expert was not allowed to comment on the other expert's findings. Put in terms of the DeMarines factors, waiver of the rule against admission of this testimony would not disrupt the efficient trial of the case, but would, instead, enhance it. Further, the admission of this testimony would not surprise Plaintiff's, since, even if Dr. Richtsmeier had not prepared a supplemental report, it would be foreseeable that there would be a disagreement between the doctors.

  Finally, given that Defendants produced Dr. Richtsmeier's supplemental report within a short time after receiving Dr. Cantrell's report, I could not find at trial that they had withheld Dr. Richtsmeier's opinions in bad faith. Clearly, therefore, DeMarines and the related cases would lead me to allow Dr. Richtsmeier to testify at trial as to his opinion of Dr. Cantrell's report.

  This being the case, it would be pointless — indeed, counterproductive — to disallow the submission of Dr. Richtsmeier's supplemental report, even though it was submitted untimely. Since the evidence is bound to come in anyway, Plaintiff's are better off in possession of the report. They have another four weeks before the May 3, 2004, trial in which to assimilate the information it contains. I will permit Plaintiff's to submit an additional report by Dr. Cantrell responsive to Dr. Richtsmeier's reports, at their option. Regardless of the contents of these reports, however, I will not allow either party to take additional discovery, nor will I extend any other deadline on this case. Neither party has asked for such relief, and the extension of deadlines so close to the trial date would inconvenience the Court.

  In accordance with the above Opinion, I now enter the following:

  AND NOW, this 1st day of April, 2004, upon consideration of Defendants' Motion to Strike Plaintiff's' Objection to the Supplemental Report of Defendants' Expert, docketed in this case as Document No. 17, and the response thereto, it is hereby ORDERED that Defendants' Motion is GRANTED. It is further ORDERED that Plaintiff's may submit on or before April 23, 2004, a supplemental report authored by their expert, Dr. Harry Cantrell.


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