United States District Court, E.D. Michigan, Northern Division
ORDER DENYING PLAINTIFF'S MOTION TO AMEND AND
DENYING DEFENDANT'S MOTION FOR A SURREPLY
Honorable Thomas L. Ludington, Judge
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.
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.
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
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).
summarized the dispute between Dr. Wald and Dr. O'Hara as
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.
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.
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
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
Id. (emphasis added).
March 5, 2019, Dr. O'Hara was deposed and ...