United States District Court, E.D. Pennsylvania
April 1, 2004.
MICHAEL ROMANO and GILDA ROMANO
DR. JOSEPH P. ATKINS, DR. NOAM COHEN and PENNSYLVANIA HOSPITAL
The opinion of the court was delivered by: JACOB HART, Magistrate Judge
ORDER AND OPINION
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
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
(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
(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;
(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.
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
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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