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approving $125 hourly rate as reasonable for 1999 law school graduate practicing in relevant area since graduation
Summary of this case from Walsh v. Boston UniversityOpinion
CIVIL ACTION 00-12599-RBC
June 26, 2003
James M. Chernetsky, William T. Cuttle, Susan M. Weise, City of Boston Law Department, Boston, MA., William J Donahue, Devine, Millimet Branch, Andover, MA., for Michael Murphy (Defendant).
Howard Friedman, Myong J. Joun, Law Offices of Howard Friedman, Boston, MA., for Danny Norris (Plaintiff).
I. The Legal Framework
On December 1, 1993, the Federal Rules of Civil Procedure were amended to provide for a greater degree of pretrial disclosure with respect to experts who were to testify at trial and to require the disclosures no less than ninety (90) days before trial. Rule 26(a)(2), Fed.R.Civ.P. The necessity for the increased disclosure and its timing was stated quite succinctly by the Advisory Committee when it wrote that "[t]his paragraph imposes an additional duty to disclose information regarding expert testimony sufficiently in advance of trial that opposing parties have a reasonable opportunity to prepare for effective cross-examination . . .". Fed.R.Civ.P. 26(a)(2), Advisory Committee Notes, 1993 Amendment, 146 F.R.D. 633. See Ortiz-Lopez v. Sociedad Espanola De Auxilio Mutuo Y Benefiencia de Puerto Rico, 248 F.3d 29, 35 (1 Cir., 2001).
The amended Rule 26(a)(2) required first that the identity of expert witnesses be disclosed. Rule 26(a)(2)(A), Fed.R.Civ.P. Second, the Rule mandated that the disclosure of the identity of expert witnesses:
. . . be accompanied by a written report prepared and signed by the witness. The report 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; exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the last ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Rule 26(a)(2)(B), Fed.R.Civ.P. (emphasis added).
While the Rule does not specify what should be in the "listing of other cases," the cases have emphasized that the key is whether sufficient information is provided so that the opposing party's counsel can procure copies of the deposition or trial testimony. Coleman v. Dydula, 190 F.R.D. 316, 318 (W.D.N.Y., 1999) citing Majewski v. Southland Corp., 170 F.R.D. 182, 185 (D. Kan., 1996); Nguyen v. IBP, Inc., 162 F.R.D. 675, 682 (D.Kan., 1995). In the Nguyen case, the Court wrote that:
The information required to be disclosed are "cases" in which the witness has testified. The identification of "cases" at a minimum should include the courts or administrative agencies, the names of the parties, the case number, and whether the testimony was by deposition or at trial. Such information would be sufficient to allow a party to review the proceedings to determine whether relevant testimony was given. With this information, a party should be able to determine the type of claim presented and locate any recorded testimony.
Nguyen, 162 F.R.D. at 682.
The sanction for failing to comply with the expert disclosure mandates of Rule 26(a)(2), Fed.R.Civ.P., are found in Rule 37(c)(1), Fed.R.Civ.P., which provides:
A party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use at trial . . . any witness or information not so disclosed.
Rule 37(c)(1), Fed.R.Civ.P.
Thus, "the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless." Salgado v. General Motors Corp., 150 F.3d 735, 742 (7 Cir., 1998) citing Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7 Cir., 1996).
II. The Motion to Exclude
In the instant case, plaintiff brings claims under 42 U.S.C. § 1983, Mass.Gen L. c. 12, § 11I and common law alleging, inter alia, that the defendant, a Boston Police officer, used excessive force upon his person during the course of his arrest on December 23, 1999, thereby causing physical injury. There is a disputed issue as to whether or not Officer Murphy's acts (which plaintiff claims amounted to excessive force) caused the physical injury of which plaintiff now complains. The plaintiff will call one or more experts who will testify that they did; the defendant identified Dr. Michael G. Kennedy of Natick, Massachusetts, an orthopedic surgeon, as their expert who undoubtedly will opine that they did not.
Trial in the case had been scheduled for June 23, 2003; this date was set on March 27, 2003. On June 3, 2003, some twenty days before trial, plaintiff filed a motion to preclude Dr. Kennedy from testifying on the grounds that the defendant has failed to provide in Dr. Kennedy's report ". . . a listing of any other cases in which [Dr. Kennedy had] testified as an expert at trial or by deposition within the preceding four years" as required by Rule 26(a)(2)(B), Fed.R.Civ.P.
The full title of the motion is "Plaintiff's Motion In Limine to Preclude Defendant's Expert Witness, Dr. Michael Kennedy, from Testifying."
III. Discussion
Manifestly, Dr. Kennedy's report and subsequent submission fail to comply with Rule 26(a)(2)(B). In a letter to counsel for the defendant dated May 13, 2003, Dr. Kennedy did provide some information (which, in turn, was turned over to plaintiff's counsel) but the disclosure is woefully inadequate.
#33, Ex. 1.
In the letter, Dr. Kennedy states that "[e]xcept for testifying in cases in Federal Court, I did not keep a list of non-federal cases in which I testified at trial, by deposition or arbitration until January, 2002." (#33, Ex. 1.) First, the obvious defect is that the letter only lists cases since January, 2002 despite the fact that it appears from the statement that Dr. Kennedy did keep a list of federal cases in which he testified before that date.
It is unclear whether the testimony in the four federal cases listed in the letter occurred after or before January, 2002.
Second, Dr. Kennedy lists four federal cases in which he testified as an expert; however, he gives only the name of the cases and no other information whatsoever. There is no indication as to what district the cases were pending in, what the docket numbers were or what attorney retained him. It is virtually impossible for plaintiff's counsel to locate the court files and obtain any information with just case names.
For example, the undersigned ran the names through the "query" function of the Court's CM/ECF system and was not able to determine whether the cases had been pending in the District of Massachusetts.
Third, the situation is even worse with respect to non-federal cases. Dr. Kennedy lists twenty cases which are either "non-federal trial(s), depositions or arbitrations" Once again, only case names are given. In one instance, only one name of one of the parties is listed. Beyond that, there is no breakdown of which cases were trials, which were depositions and which were arbitrations. It is impossible to tell in what state (and what court within a state) the trials or depositions were held. No location is given for any of the arbitrations.
#33, Ex. 1.
In addition, Dr. Kennedy has some familiarity with federal court practice. In his deposition in the Vermont case on May 3, 2000, he testified as follows:
Q. Have you ever testified in Federal Court?
A. Yes.
Q. When was that?
A. I think the last was about four weeks ago and they asked me for the last five years and I think — or ten years, and I think there was [sic] four cases.
Dr. Kennedy's testimony might indicate that he is of the mistaken belief that the only list he need disclose is a list of his testimony in prior Federal cases. This is erroneous. Even so, just producing the names of the four federal cases is patently insufficient to satisfy the disclosure requirements.
If he knew in early 2000 that as a matter of federal practice, he was required to disclose a list of all the cases in which he had testified, his failure to comply in the instant federal court case is baffling.
Counsel for the plaintiff, evidently through his own initiative, was able to obtain two deposition transcripts of Dr. Kennedy's testimony in July, 2002 (#33, Ex. 2) and May, 2000 (#33, Ex. 3). The July, 2002 deposition focused almost entirely on the income Dr. Kennedy received conducting independent medical examinations and testifying at depositions and trials as an expert witness. At the deposition, he had no records from which he could discern the amount of income he received for "medical, legal evaluations, and/or examinations, and/or trial or deposition for the years 1998 through 2001," there was no source whatever from which he could get that knowledge, he kept no records from which he could find the information, and since his testimony in an unrelated proceeding on December 13, 2001, he had not ". . . set up a system to start maintaining any such records" and had not instructed anyone to do so. (#33, Ex. 2, pp. 6-8) Further, he testified that he had not "changed anything concerning the method by which [he] keep[s] track of monies billed and monies generated for medical, legal work since . . ." the December 13th deposition, had not instructed his secretary to change her methods of record keeping and "absolutely" had not instructed his accountant to do anything differently to insure that he would know how much he earned for this work. (Id. at p. 17)
The May, 2000 deposition was taken in a case pending in the state courts of Vermont. Since it appears that Dr. Kennedy testifies in state courts (and perhaps arbitrations) pending in states other than Massachusetts, it is virtually impossible to locate transcripts with just the names of the cases.
Having found that the defendant has failed to comply with the requirements of Rule 26(a)(2)(B), Fed.R.Civ.P., the next issue is whether the failure to comply is "without substantial justification" and if so, whether "the failure is harmless." Rule 37(c)(1), Fed.R.Civ.P. The defendant does not attempt to argue that the failure was substantially justified. See #38. Indeed, on these facts, the argument would be without merit. To my mind, there are only two possible reasons why Dr. Kennedy failed to comply. The first is that he patently (and with some degree of arrogance) refuses to keep the records which would enable him to comply. This is hardly "substantial justification." An expert cannot deliberately put himself or herself in the position where it is impossible to comply with a rule and then claim that he or she cannot comply. Self-induced inability to comply with a rule is simply not justified.
An expert's failure to maintain records in the ordinary course of his business sufficient to allow disclosures to be made, does not constitute "substantial justification" for the failure to provide required disclosures as to any retained expert expected to testify at the trial of the case.
Nguyen, 162 F.R.D. at 681.
The second possible reason why Dr. Kennedy may be unable to comply is that the information is available but that he cannot be bothered to be put to the task of doing the digging necessary to discover the information. It simply strains credulity that Dr. Kennedy does not have records of medical evaluations which would contain information from which he could discern the court and its location, or the location of arbitrations, in which he has testified about those evaluations. Nguyen, 162 F.R.D. at 680-1. At the very least, if he does not have diaries, he should have some independent memory of the courts in which he has appeared during the last fifteen months. Lastly, it is very hard to credit Dr. Kennedy's statement that his accountant, who prepares his taxes, disposes of the 1099s Dr. Kennedy receives for this work after the taxes are filed, especially since taxpayers are subject to audits for a number of years after filing. If there are records from which the information may be gleaned, a failure to procure the records to find out the information is not a justification for non-compliance with the disclosure mandated by the rule.
Defendant's argument that the failure is "harmless" centers on the fact that the plaintiff has procured two depositions of Dr. Kennedy, one of which (#33, Ex. 2) is devoted almost entirely to obtaining testimony of the amount Dr. Kennedy received from performing independent medical evaluations and testifying at trials and depositions. While I would agree that perhaps the deposition is sufficient for the plaintiff to cross-examine Dr. Kennedy on that issue, the disclosure requirement was not imposed for the sole purpose of learning how much money an expert earned from testifying. It was also imposed so that opposing counsel could learn the substance of the testimony which the expert gave in other cases, including the specific opinions he has given on matters which may be substantially similar to the opinions he proposes to render in the case at hand. If he has rendered different opinions on substantially similar diagnoses, that fact could be effective ammunition for cross-examination. In addition, reading the cross-examination by other lawyers can provide counsel with avenues of questioning in the case at hand, avenues which counsel may not have thought of had he not had the benefit of the prior testimony.
If an expert in his report provided a partial list of a significant number of cases (together with the necessary identifying data) in which he had testified, the Court might be inclined to find the failure to provide a complete list as "harmless" on the theory that the opposing counsel was given a fair opportunity to obtain a substantial amount of former testimony. But that is not this case — what Dr. Kennedy provided was inadequate for opposing counsel to procure any of Dr. Kennedy's former testimony. In this connection, it should be noted that the two cases in which plaintiff's counsel was able to procure deposition testimony were not among the cases listed in Dr. Kennedy's May 13th letter. (#33, Ex. 1).
On the record before me, the failure to comply cannot be found to have been "harmless." The bottom line is that experts such as Dr. Kennedy should not be offering their services as testifying experts in federal court unless they are fully prepared to comply with the disclosure requirements of Rule 26(a)(2)(B), Fed.R.Civ.P. And attorneys should not retain experts to testify in federal court without obtaining, at the outset, assurances that the expert has the information at his disposal which is required to be included in the expert report required by that rule.
IV. Conclusion and Order
The defendant has failed to comply with Rule 26(a)(2)(B), Fed.R.Civ.P. The failure to comply was "without substantial justification" and was not "harmless." Rule 37(c), Fed.R.Civ.P. In these circumstances, the exclusion of the expert's testimony is mandatory. Id. If I have discretion to impose a different sanction short of exclusion, Ortiz-Lopez, 248 F.3d at 35; Samos Imex Corp. v. Nextel Communications, Inc., 194 F.3d 301, 305 (1 Cir., 1999), I do not, on the present record, find an appropriate lesser sanction. Accordingly, it is ORDERED that Plaintiff's Motion In Limine to Preclude Defendant's Expert Witness, Dr. Michael Kennedy, from Testifying (#32) be, and the same hereby is, ALLOWED.