United States District Court, M.D. Pennsylvania
F. SAPORITO UNITED STATES MAGISTRATE JUDGE
us is a motion in limine by the defendant, Mohan T.
Ratanchandani, to preclude an expert witness, Robert M.
Gordon, Ph.D., from testifying on behalf of one of the
plaintiffs in this matter, Dominic Miller. (Doc. 73). Counsel
for Ratanchandani and Miller have briefed the motion (Doc.
74; Doc. 80), and on October 30, 2017, they appeared before
the Court to present oral argument on the motion.
October 13, 2017, several months after the applicable expert
report deadlines expired, Miller served Ratanchandani with an
expert report in which Dr. Gordon, a clinical and forensic
psychologist, offered an opinion that, based on his review of
medical records and personal examination of the plaintiff,
Miller's subjective complaints were not exaggerated and
did not demonstrate "symptom
magnification." (Doc. 73-2). This opinion was offered in
rebuttal to the timely served report of defense expert Eugene
J. Chiavacci, M.D., in which Dr. Chiavacci, a board-certified
orthopedic surgeon, offered his opinion that, based on his
personal examination of the plaintiff, Miller's
subjective complaints were "very much exaggerated"
based on "many signs of symptom magnification on
physical examination." (Doc. 72-1, at 4).
defendant first argues that the Gordon report was untimely
produced and admission of this expert testimony into evidence
would unfairly prejudice Ratanchandani's defense. In
determining whether to exclude testimony due to a party's
failure to comply with pretrial disclosure deadlines, we must
(1) the prejudice or surprise in fact of the party against
whom the excluded witnesses would have testified, (2) the
ability of that party to cure the prejudice, (3) the extent
to which waiver of the rule against calling unlisted
witnesses 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 district
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 791
(3d Cir. 1994) (quoting Meyers v. Pennypack Woods Home
Ownership Ass'n, 559 F.2d 894, 904-05 (3d Cir.
1977)). "Evidence is generally not excluded unless
'a party has (1) revealed previously undisclosed evidence
when trial was either imminent or in progress, or (2) acted
in bad faith.'" U.S. Bank, Nat'l Ass'n
v. Rosenberg, 180 F.Supp.3d 347, 354 (E.D. Pa. 2014).
there is nothing to suggest that the plaintiff has acted in
bad faith. Dr. Gordon's examination of Miller was
conducted on October 7, 2017, and his report was produced six
days later. Although the report was served several months
after the applicable deadline, a party's lack of
diligence does not constitute bad faith. Paoli, 35
F.3d at 793.
factual information upon which Dr. Gordon's opinion is
based was previously known to the defendant, so only the
opinion itself was newly disclosed on October 13, 2017. We do
not find this late disclosure of the Gordon opinion, however,
to be unduly prejudicial to the defendant. At the time of its
disclosure, more than seven weeks remained until trial, and
at the date of this writing, more than a month remains.
Although the Gordon opinion was untimely disclosed, we do not
find trial in this case to be so imminent that the defendant
cannot cure any prejudice by procuring an expert witness to
provide a sur-rebuttal opinion, and we will grant leave for
him to do so. We further find that allowing this deviation
from our pretrial case management orders will not disrupt the
orderly and efficient trial of this or any other case before
defendant next argues that Dr. Gordon's report goes
beyond mere rebuttal of Dr. Chiavacci's opinion because
it discusses Miller's psychiatric history and the absence
of factors that might suggest malingering, which were not
discussed by Dr. Chiavacci in his report. Ultimately,
however, the opinion offered by Dr. Gordon is that Dr.
Chiavacci's opinion that Miller's "subjective
complaints are very much exaggerated and demonstrate symptom
magnification" is incorrect, and these aspects of
Gordon's report merely describe the basis for his
ultimate opinion as an expert clinical and forensic
psychologist that Miller has not exaggerated or magnified his
the defendant argues that Dr. Gordon is not qualified to
offer a rebuttal opinion to Dr. Chiavacci's opinion
because Dr. Gordon is a psychologist and Dr. Chiavacci is a
medical doctor. The defendant characterizes Dr.
Chiavacci's opinion on "symptom magnification"
as a medical opinion, upon which a psychologist is not
qualified to comment. The plaintiff, on the other hand,
characterizes Dr. Chiavacci's opinion as a psychological
opinion, upon which a psychologist is clearly (and perhaps
better) suited to comment. Meanwhile, we note that court
decisions suggest that such testimony may be best
characterized as a credibility determination, ordinarily
reserved to the jury. See Kidd v. Wal-Mart Stores,
Inc., Civil Action No. 3:09CV264, 2009 WL 3805584, at *2
(E.D. Va. Nov. 12, 2009) (excluding physician opinions on
symptom magnification because "[s]uch testimony far too
easily invades the province of the jury or comments on the
credibility of the Plaintiff); Weidman v. Colvin,
164 F.Supp.3d 650, 690 n.15 (M.D. Pa. 2015) (citing
Kidd with approval in the margin); see also
Coney v. NPR, Inc., 312 Fed.App'x 469, 474 (3d Cir.
2009) ("A doctor . . . cannot pass judgment on the
[examinee's] truthfulness in the guise of a medical
opinion, because it is the jury's function to decide
credibility.") (quoting another source) (ellipsis in
plaintiff has not objected to the admissibility of Dr.
Chiavacci's opinion on this point. We find Dr. Gordon, a
clinical and forensic psychologist, to be at least equally
qualified to offer an expert opinion on the issue of symptom
magnification as Dr. Chiavacci, an orthopedic surgeon.
See, e.g., Kidd, 2009 WL 3805584, at *3 (finding
insufficient evidence to establish whether physician experts
possessed sufficient psychological expertise to
offer expert testimony on symptom magnification).
the defendant's motion in limine to preclude
expert testimony by Robert M. Gordon, Ph.D., on behalf of
plaintiff Dominic Miller (Doc. 73) will be denied.