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Burns v. Georgetown University Medical Center

United States District Court, District of Columbia

May 28, 2015

ANTOINETTE BURNS, Plaintiff,
v.
GEORGETOWN UNIVERSITY MEDICAL CENTER, et al., Defendants.

MEMORANDUM OPINION and ORDER

COLLEEN KOLLAR-KOTELLY, District Judge.

Discovery in this case was set to close on March 15, 2015, but at the Status Hearing held on March 20, 2015, the parties reported several issues that emerged in the final weeks of discovery that they were unable to resolve. The Court ordered briefing of those issues, which are now ripe for resolution. Currently before the Court are three discovery-related motions: Plaintiff's [44] Motion for Leave to Supplement Initial Disclosures to Add Additional Witnesses, Defendants' [45] Motion to Strike Plaintiff's Second Expert Report and Preclude Related Testimony, and Defendants' [46] Motion to Compel Deposition Testimony Pursuant to Rule 37(a)(3)(B)(i). For the reasons stated below, the Court DENIES Defendants' [45] Motion to Strike Plaintiff's Second Expert Report and Preclude Related Testimony; GRANTS Plaintiff's [44] Motion for Leave to Supplement Initial Disclosures to Add Additional Witnesses; and GRANTS IN PART and DENIES IN PART Defendants' [46] Motion to Compel Deposition Testimony Pursuant to Rule 37(a)(3)(B)(i). The Court extends the close of discovery for the limited purposes detailed below.

Standard for Discovery Sanctions

"The Federal Rules of Civil Procedure allow a court to impose sanctions for a party's failure to cooperate during the course of discovery." Davis v. Dist. of Columbia Child & Family Svcs. Agency, 304 F.R.D. 51, 59 (D.D.C.2014). Federal Rule of Civil Procedure 37 "sets forth specific guidelines for the imposition of sanctions when a party fails to disclose information or witnesses, answer interrogatories, attend a deposition, or comply with a court order." Id. See also Fed.R.Civ.P. 37(b)(2), (d). Pursuant to Rule 37, a district court has broad discretion to impose sanctions for discovery violations. Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642-43 (1976) (per curiam).

"The central requirement of Rule 37 is that any sanction must be just, ' which requires in cases involving severe sanctions that the district court consider whether lesser sanctions would be more appropriate for the particular violation." Bonds v. Dist. of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996) (quoting Insurance Corp. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)). "The choice of sanction should be guided by the concept of proportionality' between offense and sanction." Id. "In determining whether a severe sanction is justified, the district court may consider the resulting prejudice to the other party, any prejudice to the judicial system, and the need to deter similar misconduct in the future." Id.

Defendants' Motion to Strike Expert Report

Defendants seek to strike the expert report that was submitted by Plaintiff's expert, Dr. Gregory Blaschke, on March 11, 2015, the morning of the scheduled deposition of Dr. Blaschke. Defendant argues that the report was untimely and argues that this report-the second submitted by Dr. Blaschke-cannot properly be considered a supplement to the original report. Plaintiff responds that the report is a supplement under Rule 26(e) and that, even if it is not considered a supplement, it should be allowed because the opinions in it were disclosed to Defendants such that there was no prejudice.

Rule 26(a)(2) requires that "a party's expert witnesses must provide the opposing party with a written report containing, among other things, a complete statement of all opinions the witness will express and the basis and reasons for them; [and] the data or other information considered by the witness in forming them; [and] any exhibits that will be used to summarize or support them.'" Iacangelo v. Georgetown Univ., 272 F.R.D. 233, 233 (D.D.C. 2011) (quoting Rule 26(a)(2)(B); alterations in original). "Rule 26(e)(1) provides a limited exception to the deadlines provided in Rule 26(a)(2)(C), requiring that an expert witness supplement his report if he learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not been made known to the other parties during the discovery process or in writing.'" Minebea Co. v. Papst, 231 F.R.D. 3, 6 (D.D.C. 2005) (quoting Fed.R.Civ.P. 26(e)(1)). "[S]upplemental reports are permitted under Rule 26(e)(1) only in the following situations: (1) upon court order; (2) when the party learns that the earlier information is inaccurate or incomplete; or (3) when answers to discovery requests are inaccurate or incomplete." Id.

Pursuant to Rule 26(a)(2), Dr. Gregory Blaschke provided a report dated July 7, 2014, on Plaintiff's behalf, regarding the termination of Dr. Burns, particularly focusing on whether the customary "due process" was followed in this case. After the depositions of the fact witnesses in this case, Dr. Blaschke provided an additional report, which was provided to Defendants on the morning of the scheduled deposition of Dr. Blaschke, March 11, 2015. While the additional report is not as unrelated and as broad as Defendants claim, it clearly exceeds the scope of the original report. Specifically, in addition to commenting on the termination process, Dr. Blaschke provided opinions regarding the quality and content of the fellowship program. With respect to timeliness, the morning of a scheduled deposition is too late to provide such a report to Defendants and to expect Defendants to be able to use the scheduled deposition to question the witness about that report. That timing hardly provides enough time for Defendants' counsel to carefully read the report, let alone prepare for a deposition based on that report.

However, notwithstanding the untimeliness of the report and the expansion in its scope, the Court notes that this issue arose near the close of discovery and the Court has not yet set a schedule for the briefing of dispositive motions or set a trial date in this case. Therefore, the Court will exercise its discretion to allow Plaintiff's second expert report. That said, because of the expanded scope and because of the untimeliness of its delivery, the Court will allow Defendants to depose Plaintiff's expert a second time at Plaintiff's expense, including the costs for the court reporter and for Defendants' attorneys' time at the deposition. As Defendants request, the Court will allow Defendants' to retain a counter-expert. But Plaintiff's expert may not produce a new report-or supplement or alter the existing reports-in response to the opinions provided by the counter-expert. Plaintiff has already submitted a second expert report; it would not be fair to allow Plaintiff a third bite at the apple as result of their actions. The testimony of Plaintiff's expert is limited to the contours and scope of the expert reports already submitted.

In addition, as Defendants request, the Court will allow discovery by Defendants from the Air Force as to "the bargain it expected." Defs.' Expert Opp'n, ECF No. 45, at 8 n.6. This will allow Defendants to explore, through discovery, issues that were discussed in Plaintiff's second expert report but not covered in the first expert report.

Accordingly, the Court DENIES Defendants' [45] Motion to Strike Plaintiff's Second Expert Report and Preclude Related Testimony and allows additional discovery as specified here.

Plaintiff's Motion to Present Additional Witnesses

Plaintiff seeks to supplement her initial disclosures pursuant to rule 26(a) to add two individuals who have knowledge of damages suffered by Plaintiff: her husband, John Harris, and her mother, Aileen Burns.[1] Plaintiff has offered these witnesses for deposition. Defendants argue that, because the addition of these witnesses is untimely, the Court should not allow the ...


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