Supplemental Expert Report No-Nos

I have posted three prior times about potential problems with “supplemental” expert reports.[1]  Now a real life example of supplemental expert reports gone horribly wrong from a case that I recently handled in federal court.

Medical expert is provided limited facts.

A timeline helps to understand the problem.

  1. November 3, 2015: discovery scheduling order entered.  February 11, 2016 is initial expert disclosure deadline.
  2. December 16, 2015 (58 days to disclosure deadline):  Plaintiff hires neurosurgeon as retained expert.  The retention letter from lawyer comes with a CD with records.
  3. January 12, 2016:  Neurosurgeon writes report but had received no additional records since December 16.  Neurosurgeon did not meet or examine Plaintiff to prepare this report.  There were no communications with Plaintiff herself.  The report references only two medical records that documented medical care prior to the subject event.
  4. January 27, 2016:  Plaintiff discloses neurosurgeon’s report as an initial expert.
  5. February 11, 2016:  Defense discloses all of its initial experts.  They considered all the records in the case.  There were a lot more than 2 prior to the subject event.
  6. February 16, 2016:  Neurosurgeon receives defense reports discussing a lot of records he never saw and probably shat himself.
  7. February 26, 2016:  Neurosurgeon finally receives additional records that document pre and post event treatment and probably shat himself again.
  8. March 2, 2016:  Neurosurgeon drafts “supplemental” report based upon additional records.  The report considered 63 additional sets of medical records that documented medical care prior to the event and also 20 medical care sessions that occurred afterwards.  Specifically writes “I am also officially requesting updated treatment records concerning the fusion surgery.”  hehehehehe
  9. March 7, 2016:  Neurosurgeon’s “supplemental” report disclosed.
  10. March 25, 2016:  Neurosurgeon examines Plaintiff.
  11. April 18, 2016:  Neurosurgeon writes report about March 25 examination.
  12. April 27, 2016 @ 4:55 p.m. (or so):  April 18 report disclosed.  Why does the time matter?
  13. April 28, 2016 @ 8:00 a.m.:  Neurosurgeon deposed.

This was a fun deposition for me.  I couldn’t have cared less about his opinions, the whole goal was to just get sound bites for the motion to exclude everything but the fundamentally flawed initial report from trial.  One of those sound bites was testimony that Neurosurgeon’s preference was to take his own medical history from Plaintiff, and to also examine her, before writing the initial report.  Why?  Sometimes treaters do not focus on details that are later important for forensic purposes.

Among the other sound bites, Neurosurgeon refused to describe his first report on January 12 as “inaccurate.”

45:25           Q.     Did you consider your initial report on
46:1   January 12th not inaccurate, but factually lacking based
2   upon the records that you received after that report?
3           A.     I don’t think it was factually lacking,
4   despite the fact that I’ll admit that it lacked certain
5   facts.  And I know that sounds silly.  But it actually is
6   true.
7                  It was factually accurate.  It was factually
8   complete, based upon what I was given at that time.  But I
9   felt that there could be more.  And I specifically requested
10   it dutifully and objectively, as a forensic expert would and
11   should.
12                  And then additional information was supplied,
13   and I improved my knowledge and modified my opinions to
14   incorporate additional facts objectively, dutifully and
15   forensically.

Oh how that answer was going to be repeated ad nauseum in the motion in limine.

The facts just got better too.  After March 2, Neurosurgeon received no additional records until April 27, the day before his deposition.  Although asking basic expert deposition questions is sometimes unproductive, it was necessary here.  Why?  After confirming he had written three reports for Plaintiff, Neurosurgeon testified:

6:4           Q.     Do you have any others in this case?
5           A.     No.  Not yet. 
6           Q.     Have you received any additional materials
7   since April 18th, 2016 concerning this case?
8           A.     Yes.
9           Q.     What additional materials have you received
10   since April 18th?
11           A.     Yesterday I received reports from Dr. —
12   maybe not Dr., but Terrence Deneen, Westpoint Physical
13   Therapy records and billing, records of Dr. Thelma
14   Fernandez, Ortho Fix billing and records; a number of years’
15   worth of W-2s; and the Renaissance Imaging records, which is
16   namely a CT lumbar scan report dated 3/30/16.
17                  I also received a link to a video showing the
18   slip-and-fall.
19           Q.     Have you had a chance to review any of those
20   materials that you received yesterday?
21           A.     I reviewed the video and the CT report.  I
22   have not had a chance to enjoy, I’ll call them economic
23   expert records.

Neurosurgeon confirmed he had not reviewed the CT image himself, but had received the radiologist’s report interpreting the image.  He did not foreclose the possibility of yet more supplemental reports, I knew he wouldn’t, but the point was to get him to waffle on the record.

What happened next?  A month after the deposition completed and discovery closed, on May 31, 2016 Plaintiff then disclosed two more supplemental reports from Neurosurgeon, one dated May 18 and another dated May 26, 2016.  The May 18 supplement reviewed a June 10, 2015 medical record from a treating physician, a medical bill from September 1, 2015, and then a physical therapy record from January 22, 2016.  He then reviewed, for the very first time, Plaintiff’s January 29, 2016 deposition transcript, the vocational economics assessment dated February 11, 2016 but only provided to Neurosurgeon on April 27, 2016, and the video of the event at issue.  The only saving grace was that the May 18 report did not modify any of Neurosurgeon’s opinions or generate any new ones.

The May 26, 2016 supplement offered brand new opinions.  It started by stating “[p]lease allow this supplemental report to address specific questions in a recent fax.”  Neurosurgeon then, for the very first time, recommends future surgeries for Plaintiff.  By the time this opinion was disclosed, discovery had been closed for 40 days.

Why are supplemental reports like these bad?

To summarize the prior posts, Rule 26(e)(2) imposes a duty upon the parties to supplement or correct their disclosures, including information in an expert’s report and  given during the expert’s deposition.  “A party may not, however, use a supplemental report to disclose information that should have been disclosed in the initial expert report, thereby circumventing the requirement for a timely and complete expert witness report.”[2]  “Rule 26(e) does not permit parties to file supplemental reports whenever they believe such reports would be ‘desirable’ or ‘necessary’ to their case.”[3]  Rather, “[s]upplementation under the Rules means correcting inaccuracies, or filling the interstices of an incomplete report based on information that was not available at the time of the initial disclosure.[4]

Here, Neurosurgeon’s supplemental reports were based entirely upon information that was available at the time of the initial disclosure.  I know that because the defense medical experts used these records in their initial reports.  Neurosurgeon could have personally met and examined Plaintiff well before the February 11, 2016 initial disclosure deadline.  I know that because the defense expert performed a Rule 35 examination one month before the initial expert disclosure deadline.  If the defense could do it, then Plaintiff certainly could too.  The records were plainly available, but were not given to Neurosurgeon for unknown reasons.  Consequently, Neurosurgeon’s second and third reports were improper supplemental reports.

The motion in limine was going to ask that the two improper supplemental opinions be excluded from trial per Rule 37(c)(1).  The untimely reports were not harmless.  Rule 26(a)(2)(B)(i) required Neurosurgeon’s initial written report to contain “a complete statement of all opinions the witness will express and the basis and reasons for them.”  It plainly did not.  The basis for excluding the two supplemental reports is supported by numerous cases evaluating similar situations.

In Keener v. United States the plaintiff moved to exclude a supplemental report from the defendant’s medical expert.  The court compared the generalities of the initial expert’s opinions to the specificity in the supplemental opinions.  “What is set forth in the second report is the information, reasoning and opinions that Rule 26 requires be disclosed in the critical initial disclosure.”[5]  The medical expert “did none of these things in making his original disclosure.  His failure was one of omission: the information was there to review.  He didn’t review it in detail before expressing his opinion.”[6]  “The nature of the second disclosure is so substantially different from the first that it falls far outside any reasonable notion of correcting an incomplete or inaccurate expert report.”[7]  “To countenance a dramatic, pointed variation of an expert’s disclosure under the guise of Rule 26(e)(1) supplementation would be to invite the proverbial fox into the henhouse.  The experienced expert could simply ‘lie in wait’ so as to express his genuine opinions only after plaintiff discloses hers.”[8]  Applying this, the defendant’s medical expert was limited to the opinions expressed in his initial report.

Akeva L.L.C. v. Mizuno Corp. also excluded an improper supplemental report that the defendant then sought to exclude.  “Plaintiff does not argue that Mr. Fredericksen’s initial opinion was incorrect, but appears to argue that it was incomplete.  The Court cannot accept a definition of supplementation which would essentially allow for unlimited bolstering of expert opinions.”[9]  Rule 26(e) “does not cover failures of omission because the expert did an inadequate or incomplete preparation.  To construe supplementation to apply whenever a party wants to bolster or submit additional expert opinions would wreak havoc in docket control and amount to unlimited expert opinion preparation.”[10]  The court excluded the improper supplemental opinions.

In Wells v. Lamplight Farms, Inc.[11] the plaintiff disclosed an expert witness and then noticed a Rule 30(b)(6) deposition to obtain information to “supplement” his report.  The defendant objected to the deposition, but plaintiff asserted it was appropriate because the information sought was not available to them before the initial expert disclosure deadline.  This argument failed.  Instead of demonstrating the information was unavailable, “the record shows only that they did not ask for it.  Plaintiffs had over seven months between the date the Scheduling Order was entered and their deadline for disclosing experts to conduct the discovery necessary for Bohrer to form all of his opinions.”[12]  “If plaintiffs had made a prompt request, and Lamplight had refused to provide the missing information, then plaintiffs would have a legitimate argument that the information was ‘not available’ when Bohrer wrote his report.”  However, this was not what happened.  Simply put, “plaintiffs made no effort to obtain that information in time to comply with their expert disclosure deadline.  This does not mean the information was ‘not available.’  It simply means plaintiffs were dilatory in attempting to gather it.”[13]  The deposition notice was quashed.

3M Innovative Props. Co. v. Dupont Dow Elastomers, LLC also excluded an improper supplemental report.  “There is no dispute that the tests supervised by Dr. Balke in January 2005 could have been performed prior to the June 2004 discovery deadline, and, hence, that the intended ‘supplemental’ information was available at the time of the initial disclosure.”[14]

The local federal courts had also previously ruled this way.

In Colony Ins. Co. v. Colo. Cas. Ins. Co. the defendant moved to strike a supplemental report from the plaintiff’s retained expert witness.[15]  The plaintiff had timely disclosed an initial expert report on October 11, 2013.  On November 9, 2013 the defendant then produced supplemental documentation responsive to written discovery requests and on January 14, 2014 produced documentation relating to a deposition.  On February 7, 2014 the plaintiff then disclosed a supplemental expert report relying upon these materials.

Magistrate Judge Koppe stated “[g]enerally speaking, supplementation of an expert report is proper where it is based on new information obtained after the expert disclosure deadline and the supplemental report was served before the time for pretrial disclosures.”  She concluded the supplemental report was proper because it “is based on discovery obtained after the deadline for Plaintiff’s initial expert disclosures, and was provided prior to the deadline for the Rule 26(a)(3) pretrial disclosures.”

This contrasts with the facts of this case.  In Colony Ins. Co. v. Colo. Cas. Ins. Co. the supplemental expert report relied upon information the plaintiff had previously requested from the defendant and then only received after the initial expert disclosure deadline.  Here, the information that Neurosurgeon was missing was not only available to Plaintiff herself, but had been produced and considered by defendants’ medical experts to prepare their own opinions.

Burger v. Excel Contrs., Inc.[16] also considered a motion to strike a supplemental report.  The plaintiff timely disclosed an initial expert witness and then disclosed two supplemental reports from that expert after the initial disclosure deadline but before the rebuttal disclosure deadline.

“Supplementation under Rule 26(e) does not create a loophole for a party to revise an initial report to its advantage.”  “In determining whether a supplement under Rule 26(e) is appropriate, the court considers (1) whether the supplemental information correspond to a prior Rule 26(a) disclosure and, if so, (2) whether the supplemental information available at the time set for the initial disclosure.”  The first factor was easily satisfied as the supplement did relate back to information referenced in the initial report.  However, the second factor failed as “all of the allegedly ‘new’ information was available well before disclosure of the initial report. Consequently, the information included in the first supplement, though provided to the expert for the first time, was not ‘new’ information.”  This new information consisting of “three MRIs, CT scan, and the Traffic Accident Report existed prior to the lawsuit even being filed.  Additionally, both Plaintiff’s deposition and the follow up examination referenced in the second supplement occurred over sixty (60) days prior to the expert disclosure deadline.”  The supplement was improper.

Burger considered four factors to assess whether the violation was substantially justified or harmless.  “(1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely disclosing the evidence.”  An expert’s testimony could be excluded “even in the absence of a showing of bad faith or willfulness.”  It then concluded the improper supplement was harmless.  The diagnostic studies were well known to the defendant before the disclosure occurred and the expert had specifically referenced the interpretations of others reviewing them in his initial report.

Burger is similar to the facts I encountered in that the supplemental reports are not based upon “new” information, but rather information that existed and was not provided to Neurosurgeon.  However, the exclusion remedy was appropriate in my case.  When Neurosurgeon wrote his initial report, he did not know the pre-existing medical records existed that were then referenced in his subsequent supplemental reports.  This is not a case of simply personally viewing a diagnostic study rather than relying upon a radiologist’s interpretation.  Neurosurgeon did not know these records even existed.

Finally, Allstate Ins. Co. v. Balle[17] also considered a motion to strike supplemental reports.  The defendant disclosed an initial, retained expert on June 4, 2013.  Two supplemental reports were disclosed: one on August 14, 2013 and another on September 16, 2013.  When he was deposed, the expert’s file indicated he was retained three days before the initial expert disclosure deadline.  He confirmed his first supplemental report was not based” on information that became available after he completed his initial report; instead he was “continuing on with the work that [he] was doing.”  Dr. Croft was deposed and then the plaintiff moved to strike his reports.

Magistrate Judge Koppe stated “supplementation is not appropriate simply because the expert did an inadequate or incomplete preparation.”[18]  She concluded “it is apparent that Dr. Croft’s supplemental reports were produced as ‘supplements’ because Dr. Croft lacked time to complete his initial report, and not because Dr. Croft was provided with any new information.”  She also concluded the supplements were neither substantially justified nor harmless and ordered that they be excluded.

In the end I asked the court to limit Neurosurgeon’s trial testimony to those facts and opinions contained in his initial report.  What happened?  We’ll never know; the case resolved while the motion was pending.

[1] July 29, 2013; October 27, 2014; October 26, 2015.
[2] Abila v. United States, No. 2:09-cv-01345, 2011 U.S. Dist. LEXIS 42944, 2011 WL 1447618 (D. Nev. Apr. 14, 2011) (citing 6 Moore’s Federal Practice § 26.131).
[3] Minebea Co. v. Papst, 231 F.R.D. 3, 6 (D.D.C. 2005).
[4] Keener v. United States, 181 F.R.D. 639, 640 (D. Mont. 1998).
[5] 181 F.R.D. 639, 640 (D. Mont. 1998).
[6] Id. at 641.
[7] Id. at 642.
[8] Id. at 641.
[9] 212 F.R.D. 306, 310 (M.D.N.C. 2002).
[10] Id.
[11] 303 F.R.D. 530, 536 (N.D. Iowa 2014).
[12] Id.
[13] Id.
[14] No. 03-3364, 2005 U.S. Dist. LEXIS 47972, 2005 WL 6007042 (D. Minn. Aug. 29, 2005).
[15] 2:12-cv-01727, 2014 U.S. Dist. LEXIS 72616 (D. Nev. May 28, 2014).
[16] 2:12-cr-01634, 2013 U.S. Dist. LEXIS 153535, 2013 WL 5781724 (D. Nev. 2013).
[17] 2:10-cv-02205, 2013 U.S. Dist. LEXIS 154244, 2013 WL 5797848 (D. Nev. Oct. 28, 2013).
[18] (quotation omitted).