United States District Court, D. New Jersey
G.S., et. al., Plaintiffs,
Labcorp, et. al., Defendants.
DOUGLAS E. ARPERT, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant Laboratory Corporation of
America's application to strike the “Addendum
Report” authored by Plaintiffs' Life Care Planning
Expert, Dr. Harold Bialsky which was served on April 29,
2019. ECF No. 45. Plaintiffs have opposed Defendant's
application. ECF No. 45 at Tab 3 and No. 47. Defendant's
application was the subject of discussion during a status
conference with counsel on May 31, 2019 during which the
parties agreed to submit this dispute to the Court informally
rather than by formal motion.
short, Defendant contends that the Addendum Report is
untimely, “fundamentally unfair and improper”,
and “[n]either plaintiffs nor Dr. Bialsky have provided
any justification for the service of this late report.”
ECF no 45 at Tab 2. Defendant describes the Addendum Report
as “an after-the-fact effort by Dr. Bialsky to
rehabilitate his testimony and bolster his opinions
post-deposition.” Id. Accordingly, Defendant
seeks an order striking the Addendum Report.
response, Plaintiffs maintain the Addendum Report “is
simply a response by Plaintiffs' expert to certain
questions posed to him during his deposition”. ECF No.
47. Further, Plaintiffs argue, the Addendum Report
“should not be regarded as adding new, substantive
opinions which serve to surprise or prejudice
Defendants”; “[t]he information supplied in [the]
Addendum Report does not alter, supplement or enhance [Dr.
Bialsky's] deposition”; and, “to the extent
that Mr. Bialsky's addendum constitutes a technical
violation, if any, of Rule 26 it should be regarded as
‘harmless' under Rule 37.” Id.
to the operative Case Management Order in this case [ECF No.
31], Plaintiffs' expert reports were to be served by June
15, 2018. Plaintiffs served Dr. Bialsky's initial report,
dated May 8, 2018, on June 15, 2018. Dr. Bialsky's
deposition was conducted on March 27, 2019. During his
deposition, Dr. Bialsky was questioned about his knowledge of
organizations that operate group homes which accept private
payment rather than strictly payment through entitlement
programs such as Medicaid. For example:
Q. Do you know how many of these organizations on these 14
pages have group homes that would be appropriate for someone
with Fragile X?
A. I am not aware.
Q. Have you ever had any communications with any of these
organizations concerning the placement of a person with
Fragile X into a group home that they may run or manage?
A. Not as it relates to this particular life care plan.
to ECF No. 47 at page 43, lines 10-21.
Addendum Report was served on April 29, 2019, approximately
30 days after Dr. Bialsky's deposition. According to the
Addendum Report, following the deposition, Dr. Bialsky
“conducted additional research with regard to Group
Home charges.” ECF No. 44 at Tab 1. Specifically, it
appears Dr. Bialsky contacted 5 of the organizations about
which he was asked during his deposition to determine which
do and which do not accept private reimbursement. The
Addendum Report also contains additional factual information
concerning the payment arrangements and billing structures of
two of those organizations as well as the statement that one
organization “is not considered a viable option for
this Life Care Plan.” Id.
the Addendum Report does not seek merely to correct an
inadvertent error or omission. See Fed. R. Civ. P.
26(e)(2) (extending to experts a party's duty to
supplement a disclosure if “in some material respect
the disclosure or response is incomplete or
incorrect.”) Rather, on its face the report reflects
that the expert conducted additional research and gathered
new factual information not contained in his original report,
and the report appears to include at least one conclusion as
to the suitability of one group home for consideration in the
Life Care Plan. Contrary to Plaintiffs' contention that
the Addendum Report does not “alter, supplement or
enhance” the expert's deposition testimony, the
report appears to be an attempt to bolster the expert's
original opinion - nine months after the deadline to serve
expert reports expired. As Defendant correctly observes,
permitting the report “runs the risk of never-ending
additional fact discovery.” ECF No. 45 at Tab2.
26(a) governs the disclosure of expert testimony. Rule
37(c)(1) provides, in part, “[i]f a party fails to
provide information or identify a witness as required by Rule
26(a) …, the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at trial, unless the failure was substantially
justified or harmless.” Further, deadlines in a Case
Management Order may be modified only upon showing of good
cause. Fed.R.Civ.P. 16(f). While, as noted above,
supplementation is required under certain circumstances,
“Rule 26 does not give parties the right to freely
supplement, especially after court-imposed deadlines.”
Hartle v. FirstEnergy Generation Corp., 7 F.Supp.3d
510, 517 (W.D. Pa. 2014).
case, the burden is on Plaintiffs to demonstrate that the
timing of their service of the Addendum Report was consistent
with the Federal Rules of Civil Procedure. Simply put,
Plaintiffs have not met this burden. For the reasons above,
the Court finds the Addendum Report to be an untimely and