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Good v. Biolife Plasma Services, L.P.

United States District Court, E.D. Michigan, Northern Division

July 18, 2019



          Honorable Thomas L. Ludington, Judge

         On March 23, 2018, Plaintiff filed a complaint in the Circuit Court of Isabella County, Michigan, which Defendants removed to this Court on April 20, 2018. ECF No. 1. Plaintiff alleges that she sustained injuries while donating blood plasma at Defendants' facility. Specifically, after her finger was pricked by Defendants' personnel, Plaintiff fell off of a stool and hit her head. She asserts one count of medical malpractice and one count of negligence, alleging that Defendants should have “positioned her in a safe chair or cot/gurney with protective restraining components to eliminate the risk of injury during a fainting or dizzy spell.” Id. ¶ 21.

         The case management and scheduling order set a deadline of October 29, 2018 for Plaintiff's expert disclosures. ECF No. 9. Pursuant to the parties' subsequent stipulation, that deadline was extended to December 14, 2018. ECF No. 12. Although subsequent stipulations were entered which extended other case management deadlines (including an extension of discovery until April 5, 2019), none of the subsequent stipulations extended the expert disclosure deadline. Accordingly, Plaintiff's expert disclosure deadline was December 14, 2018.

         On June 3, 2019, Plaintiff filed a “motion for amendment to the case management and scheduling order to allow for addition of Dr. Richard M. Chesbrough as an Expert Witness.” ECF No. 20. Plaintiff contends that the untimely addition of Dr. Chesbrough is warranted because Defendants submitted an unanticipated supplemental report of defense expert Dr. Wald on April 5, 2019 (the last day of discovery) which contained novel conclusions regarding the imaging of Plaintiff's head. Plaintiff contends that the unanticipated supplemental report of Dr. Wald provided good cause for her to retain a radiologist (Dr. Chesbrough) and serve his report on Defendants. Alternatively, Plaintiff asks that if she is not permitted to offer Dr. Chesbrough's testimony in support of her case-in-chief, that he nevertheless be permitted as a rebuttal witness.


         If a party does not comply with the requirements of Rule 26(a) or (e), then it is subject to the automatic and mandatory sanction of Rule 37(c)(1). See Dickenson v. Cardiax and Thoracic Surgery of Eastern Tenn., 388 F.3d 976, 983 (6th Cir. 2004). Rule 37(c)(1) provides, “[i]f a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Id. A harmless violation is one that involves an honest mistake, combined with sufficient advance knowledge by the adversary. Roberts ex rel. Johnson v. Galen of Va., Inc., 325 F.3d 776, 783 (6th Cir. 2003). The burden to establish justification and harmlessness is on the party facing sanctions and the “the sanction of exclusion is automatic and mandatory” if that party fails to carry its burden. Salgado by Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998). “District courts have broad discretion to exclude untimely disclosed expert-witness testimony.” Pride v. Bic Corp., 218 F.3d 566, 578 (6th Cir.2000).


         Plaintiff summarized the dispute between Dr. Wald and Dr. O'Hara as follows:

Both Dr. Wald and Dr. O'Hara offered (conflicting) expert opinions on the interpretation of Ms. Good's radiology imaging and whether Ms. Good's sudden hearing loss following her October 8, 2015 accident was caused by a basilar skull fracture she suffered as a result of her fall, in the subject incident.

         In short, although both doctors agree that no basilar skull fracture was visible on the imaging, Dr. O'Hara nevertheless concluded (for other reasons) that Plaintiff did indeed suffer a basilar skull fracture. Dr. Chesbrough (the radiologist who Plaintiff did not timely disclose), agreed with Dr. O'Hara.

         On January 17, 2019, Defendant furnished Plaintiff Dr. Wald's expert report. ECF No. 21-2. Dr. Wald's report notes that he reviewed the CT and MRIs of Plaintiff's head dated 10/8/15, 10/9/15, 11/11/15, and 2/9/16. Id. PageID.153. Dr. Wald's report states in relevant part:

An inner ear infection may have contributed to hearing loss even after the infection had resolved. Subsequent extensive audiologic and otolaryngology evaluation found no alternative explanation, and no skull fractures were found. In other words, there is no objective evidence or pathology suggesting that the fall is related to her reports of hearing loss.

Id. (emphasis added).

         On March 5, 2019, Dr. O'Hara was deposed and ...

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