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Iacangelo v. Georgetown University

June 17, 2008


The opinion of the court was delivered by: Alan Kay United States Magistrate Judge


Pending before this Court is Defendants' Emergency Motion to Extend the Deadlines for Defendants' Fed. R. Civ. P. 26(a)(2) Expert Disclosures and to Strike Plaintiffs' Expert Reports for Plaintiffs' Failure to Comply with Fed. R. Civ. P. 26(a)(2)(B) ("Motion") [87]; Plaintiffs' opposition to the Motion ("Opposition") [89]; Defendants' reply to the Opposition ("Reply") [92]; Plaintiffs' Surreply to the Reply ("Surrreply") [96]; and Defendants' response to the Surreply ("Response") [98]. Defendants' Motion is twofold; Defendants first move to extend the January 31, 2008 deadline for disclosure of their Expert Disclosures to a date five weeks after the Plaintiffs provide all required Rule 26(a)(2)(B) information considered by their 13 named experts. Second, Defendants move to strike Plaintiffs' designated legal experts and experts who provide legal opinions and ask the Court to impose a limit on the number of experts who can testify. The Court held a hearing on this Motion on February 27, 2008. A separate Order accompanies this Memorandum Opinion.

I. Background

This case involves claims brought by the parents of an incapacitated adult, Karyn Kerris ("Kerris"), against Georgetown University and Dr. Vance Watson for medical malpractice, breach of fiduciary duty, and failure to adequately warn. Plaintiffs, guardians of Kerris's person and property, allege that Defendants willfully and wantonly defrauded their daughter by failing to inform her that the devices to be used in her medical treatment were not FDA-approved. Plaintiffs claim that Defendants breached an alleged guaranteed rate of success of the medical procedure employed by Defendants. Plaintiffs also include negligence per se claims based on Defendants' alleged violations of the Food, Drug & Cosmetic Act ("FDCA").

II. Legal Standard

Pursuant to Rule 26(a)(2)(B), expert disclosures shall be "accompanied by a written report prepared and signed by the witness [and such] [r]eport shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used . . .; the qualifications of the witness, . . .; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified . . . ." (Emphasis Added.)

Federal Rule of Evidence 403 provides for the exclusion of relevant evidence on grounds of prejudice, confusion or waste of time.*fn1 Federal Rule of Evidence 702, relating to expert testimony, states that:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Federal Rule of Evidence 704 generally allows "testimony in the form of an opinion or inference otherwise admissible" even where it "embraces an ultimate issue to be decided by the trier of fact."

III. Analysis

A. Production of Supplemental Information

The first part of Defendants' Motion addresses alleged insufficiencies in the expert reports provided by Plaintiffs. Attached to the Motion at Exhibit 8 is a letter dated January 7, 2008, wherein counsel for Defendants sets forth questions regarding certain expert reports and requests for additional documentation in support of those reports. The expert reports are identified by name and date. During the hearing on the Motion, the parties were diametrically opposed in their views as to whether the expert reports were complete. Counsel for Defendants argued that some data and documents relied upon by the experts have not yet been produced while Plaintiffs' counsel countered that numerous documents have been produced or identified and expert production is complete.*fn2 This Court, having completed its review of the expert reports in the context of the Defendants' January 7, 2008 letter, will address them in the order in which they appear in that correspondence:*fn3

1. Dr. Kaufman- Supplemental documentation was produced to Defendants in response to the ...

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