The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
I herein resolve all the parties' Motions In Limine. I will begin my analysis with plaintiff's Motions In Limine and follow with defendant's Motions In Limine.
Plaintiff's Motions In Limine
I. Plaintiff's Motion to Strike Defendant's "Supplemental" Expert Report
A crucial witness in this case will be Dr. Bruce Butler. It was Dr. Butler whose report lead to the defendant's determination that plaintiff was no longer fit for duty as a Special Agent. The Equal Employment Opportunity Commission ("EEOC") administrative law judge was sharply critical of Dr. Butler and I anticipate that plaintiff's expert witness, Dr. Paul Raford, will also be sharply critical of Dr. Butler. Dr. Butler is a central actor in this piece and it is understandable that both sides have named him as a potential witness.
Judge Kessler ordered that all expert reports be filed by January 15, 2002. On that date, the defendant filed Dr. Butler's report of October 28, 1998. This report, which was criticized by the EEOC administrative judge, led defendant to remove plaintiff from her post as Special Agent.
On February 25, 2002, Dr. John Starr testified during his deposition that he had ordered a functional capacity evaluation of plaintiff. Opposition to Motion to Strike Expert's Supplemental Report at 1. That evaluation was done by a physical therapist on April 20, 1998, and plaintiff identified it in her initial disclosures that were served on defendant on September 10, 2001. Reply Memorandum in Support of Plaintiff's Motion to Strike Defendant's Supplemental Expert Report at 2. By letter dated October 8, 2001, plaintiff's counsel advised the Assistant United States Attorney who was then representing defendant that virtually all of the documents identified in her initial disclosures were produced during the EEOC process. He represented that they had now been"indexed and organized." Counsel nevertheless indicated that, if the defendant insisted and wanted everything copied, he would do so. The Assistant insisted that the documents be copied and plaintiff's counsel did so and delivered them. Id. at 2-3.
Unfortunately, at that point, the agreement as to what happened ends. During his deposition, another doctor named Radford testified that he had reviewed the functional capacity evaluation that the physical therapist had done. Plaintiff's Motion to Strike Defendant's Supplemental Expert Report at 2-3. By letter of February 20, 2002, defendant's new counsel asked plaintiff's counsel to provide her with a copy of the functional capacity evaluation. At that point, Judge Kessler stayed the case. Understandably, counsel for both sides turned their attention to other matters and there appears to have been no answer to the letter of February 20, 2002. When the stay was lifted, defendant's counsel indicated that, as counsel had agreed, she had gone through an index plaintiff provided and had identified documents that had not been produced. Opposition to Motion to Strike Expert's Supplemental Report at 3. She asked that they be provided. On that extensive, six page list, the functional capacity evaluation is listed as missing. Id., Exhibit 5. In a subsequent letter, counsel for defendant challenged plaintiff's counsel's suggestion that the missing documents had been misplaced by her predecessor as incorrect. She insisted that the documents had never been removed from the boxes in which plaintiff had delivered them.
In any event, defendant thereafter got the functional capacity evaluation and made it available to Dr. Butler. He then produced what he called a Supplemental Opinion in which he explained why the functional capacity evaluation supported his opinion. Id. at 5. Plaintiff then moved to strike it on the obvious ground that the report, filed on September 1, 2002, missed Judge Kessler's deadline for the submission of expert reports by months. Defendant protested that it did not have the functional capacity evaluation report until after that deadline had passed, and it was impossible for Dr. Butler to speak to its contents until he got it from the government.
The crucial factual question is whether the functional capacity evaluation report was given to defendant in September 2001. If it was, defendant's not bringing it to Dr. Butler's attention until August 2002 is inexcusable. But, on this record, it is impossible to resolve whether plaintiff delivered the report to defendant's counsel in September 2001. In any event, it must first be recalled that Fed. R. Civ. P. 26(e) does not grant a license to supplement a previously filed expert report because a party wants to, but instead imposes an obligation to supplement the report when a party discovers the information it has disclosed is incomplete or incorrect. Since the defendant does not claim that it had previously informed plaintiff of any information that Dr. Butler's supplemental report corrected, then Fed. R. Civ. P. 26(e) is not authority for the filing of the report after the deadline Judge Kessler set.
The interest served by requiring the disclosure of expert opinions is self evident. It is to prevent unfair surprise at trial and to permit the opposing party to prepare for the expert's cross examination. By"locking" the expert witness into what Fed. R. Civ. P. 26(a)(2)(B) calls"a complete statement of all opinions to be expressed and the basis and reasons therefor," the opposing party knows exactly what she is facing and can decide whether to take the deposition of the expert and how to prepare for cross examination and rebuttal. When the expert supplements her report by addressing a new matter after discovery has ended, the very purpose of the rule is nullified. I, therefore, am obliged by these rules to strike the report.
I hasten to add that I am assuming plaintiff took Dr. Butler's deposition and plaintiff's counsel did not inquire about how his 1998 report would have been affected by the functional capacity evaluation. If I am wrong and plaintiff so inquired, then the purposes of Fed. R. Civ. P. 26(a)(2)(B) have been satisfied and I will reconsider this decision.
II. Plaintiff's First Motion In Limine (Collateral Source)
Plaintiff received worker's compensation from the Department of Labor from July 1999 through November 2001. Plaintiff's First Motion In Limine at 1. Plaintiff became eligible for worker's compensation after being reassigned from her position as a Special Agent to the position of management analyst, one grade lower than her original position and outside law enforcement. Id. Plaintiff wants the Court to preclude any evidence regarding the actual dollar amount of worker's compensation provided to her by the Department of Labor, Office of Workers' Compensation Program ("OWCP"). Plaintiff invokes this request under the collateral source rule in order to prevent defendant from setting-off the damage award by the amount of worker's compensation.
Defendant objects to a resolution of this issue now because the Court does not need to address the issue of damages until the jury finds that the alleged discrimination actually existed. I agree and defer the decision until the end of trial. The actual issue of whether or not to set-off the damage award with the money received from worker's compensation is not relevant unless the jury finds that defendant indeed discriminated against plaintiff. Plaintiff must win before I rule on how damages are assessed.
III. Plaintiff's Second Motion In Limine (Documents and Witnesses Not Timely Disclosed)
Defendant filed its Initial Disclosures on September 2, 2001. It identified seven potential fact witnesses, (James Henderson, Lori Courtney, Crystal Johnson, Phillip Spottwood, Richard Miller, Cheri Reid and Thurman Dutton) and two"documents" that were really files, (the OWCP file, and the Reports of Investigation of plaintiff's complaint produced in conjunction with her complaints to the EEOC). Discovery closed in February 2002.
By letter dated December 12, 2002, defendant's counsel transmitted (1) a tape showing the 1999 OIG Quarterly Training, (2) the Interagency Agreement between the Public Health Service and GSA, (3) GSA's Medical Standards and related memorandum, and (4) letters to and from Karen Coles regarding her complaints about Dr. Butler.
Counsel said of these documents:
These materials recently came to my attention. I have been unable to determine whether they have already been provided to you, and am not certain whether they are even responsive to the plaintiff's discovery requests. Nevertheless, because they may be used in connection with testimony in this case, I am providing them to you out of an abundance of caution.
Plaintiff's Second Motion in Limine, Exhibit B.
On January 6, 2003, defendant's counsel transmitted a copy of the Merit Promotion file for the GS-14 position for which plaintiff applied in early 1999. She repeated the paragraph just quoted.
The next day, plaintiff's counsel, less than enthralled with these disclosures, wrote back. He stated that he had received what he called"several hundreds of pages of unidentified documents which it transmitted." Plaintiff's Second Motion in Limine, Exhibit D. Noting that discovery had closed a year ago, he stated:
Unless you provide us with a specific identification of the documents in question, the testimony defendant intends to elicit about them, the identities of the witnesses from whom defendant intends to elicit this testimony, and an explanation of why these documents were not disclosed earlier, you will leave us no choice but the [ sic] seek their exclusion should defendant attempt to rely upon them for any purpose in this litigation.
True to his word, plaintiff objects to defendant's introducing documents that were transmitted by the letters of December 12, 2002, and January 6, 2003.
As just explained, Fed. R. Civ. P. 26(e) requires a party who had made an initial disclosure or responded to a request for discovery to supplement its disclosure or response if that party learns that in some material respect the information previously disclosed is incomplete. The letters of December 12, 2002, and January 6, 2003, were not in compliance with this requirement for the obvious reason that their author did not even consider their relation to the defendant's earlier disclosure. Instead she professed ignorance of their relation to the defendant's prior disclosure. In reality, defendant's counsel was attempting to rescue the defendant from its failure to disclose the documents when it should have, so that defendant could use them at trial, despite its failure to disclose them during the discovery period. To permit that stratagem and let a party use at trial evidence it did not disclose during discovery under the guise of"correcting" an earlier disclosure when that party does not even bother to indicate what it is correcting would gut the discovery rules.
Understandably, the defendant does not defend what it has done or claim, as the Rule permits, that its failure to disclose was substantially justified. FED. R. CIV. P. 26(c)(1). Instead, it argues that its not disclosing the documents was harmless because plaintiff has had the documents and never moved for an enlargement of the discovery deadline to gather information to meet their significance
To say that disclosure after the discovery deadline is harmless ignores that a central purpose of setting a discovery deadline is to move the case expeditiously forward from the end of discovery, through dispositive motions, to pre-trial and trial. Disclosures made after the discovery deadline threaten the disruption of that schedule if, in reality, the period of discovery and disclosure does not end when a judge says it is supposed to. While such disruption has to be tolerated when the belated disclosure is substantially justified because disclosure during the discovery period was impossible, the interest in having ...