United States District Court, D. Massachusetts
SERKAN CABI, PH.D., ISIN CAKIR, PH.D., and SAFAK MERT, PH.D, Plaintiffs,
BOSTON CHILDREN'S HOSPITAL, THE CHILDREN'S HOSPITAL CORPORATION, AND ITS AFFILIATED ENTITIES, UMUT OZCAN, M.D., and JOSEPH MAJZOUB, M.D., Defendants.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTION T STRIKE THE LATE AND IMPROPER REBUTTAL REPORT OF DR.
MEHMET TONER (DKT. NO. 235)
L. CABELL, U.S.M.J.
Cabi, Isin Cakir, and Safak Mert (collectively “the
plaintiffs”) have brought various employment related
discrimination and retaliation claims against the defendants,
Boston Children's Hospital, the Children's Hospital
Corporation, Dr. Umut Ozcan and Dr. Joseph Majzoub
(collectively “the defendants”). The present
motion arises in the course of a dispute concerning expert
discovery. The defendants contend that the rebuttal report of
the plaintiffs' expert, Dr. Mehmet Toner, is untimely and
improper and therefore should be stricken. (Dkt. No. 235).
Following consideration of the parties' submissions, the
defendants' motion to strike is DENIED.
court's pre-trial schedule, expert disclosures were due
on or before April 28, 2017, and expert discovery was to be
completed by June 16, 2017. (Dkt. No. 188). Consistent with
the schedule, both parties filed their respective expert
disclosures on April 28, 2017. The plaintiffs' experts
included, among others, Dr. Mehmet Toner.
30, 2017, the defendants filed rebuttal reports authored by
Dr. Barbara Bierer and Dr. Ron Rosenfield to rebut Dr.
Toner's opinions as set out in his affirmative expert
report. The plaintiffs did not file any rebuttal reports at
this time. (Dkt. No. 236).
defendants subsequently noticed Dr. Toner's deposition
for June 14, 2017. On June 12, 2017, two days before Dr.
Toner's deposition, the plaintiffs filed a report
authored by Dr. Toner; this report purported to rebut the
opinions offered in the affirmative and rebuttal reports of
Drs. Bierer and Rosenfield.
Rule 26 of the Federal Rules of Civil Procedure, where the
court does not otherwise set a relevant deadline, if an
expert report “is intended solely to contradict or
rebut evidence on the same subject matter identified by
another party, ” such a disclosure must be made
“within 30 days after the other party's
disclosure.” Fed.R.Civ.P. Rule 26(2)(D)(ii). “A
rebuttal report may cite new evidence and data so long as the
new evidence and data is offered to directly contradict or
rebut the opposing party's expert.” Glass
Dimensions, Inc., ex rel. v. State Street Bank & Trust
Co., 290 F.R.D. 11, 16 (D. Mass. 2013). “The
expert disclosure requirements are not merely aspirational,
and courts must deal decisively with a party's failure to
adhere to them.” Lohnes v. Level 3 Communications,
Inc., 272 F.3d 49, 60 (1st Cir. 2001). In that regard,
“district courts have broad discretion in meting out .
. . sanctions for Rule 26 violations.”
Laplace-Bayard v. Batlle, 295 F.3d 157, 162 (1st
Cir. 2002). While the First Circuit has acknowledged
“that preclusion of expert testimony is a grave step,
not to be undertaken lightly, it is nonetheless among the
arrows in the trial court's Rule 26(e) quiver, available
for use in suitable cases.” Thibeault v. Square D
Co., 960 F.2d 239, 247 (1st Cir. 1992).
defendants move to strike Dr. Toner's rebuttal report
primarily on the ground that it is untimely and therefore
prejudicial to the defendants. In particular, the defendants
note that the plaintiffs served Dr. Toner's report almost
two weeks after the deadline for rebuttal reports, and only
48 hours prior to Dr. Toner's noticed deposition. (Dkt.
No. 236). The court agrees with the defendants that Dr.
Toner's rebuttal report is untimely. Since the court did
not set a deadline for rebuttal reports in its scheduling
order, the thirty-day default under Rule 26(2)(D)(ii)
applied; accordingly, since expert disclosures were due on or
before April 28, 2017, rebuttal reports were due by May 30,
2017. Dr. Toner's rebuttal report was unquestionably
untimely because it was not served until almost two weeks
plaintiffs aver that should any portions of Dr. Toner's
rebuttal report be deemed as untimely, it should instead be
categorized as a supplemental report to Dr. Toner's
initial disclosures. While this may circumvent the
untimeliness issue here, Dr. Toner's June 12 report
cannot be appropriately categorized as a supplemental report.
Rule 26, expert reports may be supplemented in a
“timely manner” if the initial disclosure
“is incomplete, or incorrect.” Fed.R.Civ.P.
26(e)(1)(A). In his June 12 report, Dr. Toner does not
purport to clarify or otherwise correct the opinions and
conclusions contained in his initial disclosures. Rather, as
the court understands it, the purpose of the June 12 report
is to respond directly to the opinions and conclusions of
Drs. Beirer and Rosenfield, critique their methodology and
characterization of the evidence, and draw conclusions
favorable to the plaintiffs. (Dkt. No. 239). As such, Dr.
Toner's June 12 report falls squarely within the
definition of a rebuttal report as contemplated by the Rules
of Civil Procedure. See Glass Dimensions, Inc., 290
F.R.D at 16 (internal quotations omitted) (an expert report
qualifies as a rebuttal report if it is intended solely to
contradict or rebut evidence on the same subject matter
identified by the opposing party's expert report”).
Indeed, Dr. Toner himself introduces the report as a
“rebuttal report.” Therefore, despite the
plaintiffs' attempts to characterize it as otherwise, Dr.
Toner's June 12 report is, in substance and effect, a
the court does not believe that striking Dr. Toner's
rebuttal report is an appropriate sanction here. On balance,
while the plaintiffs were late in filing Dr. Toner's
rebuttal, the defendants have not shown that they have
suffered any harm or prejudice by the untimely filing.
Bay State Sav. Bank v. Baystate Financial Services,
LLC, No. 03-40273-FDS, 2007 WL 6064455, at *7 (D. Mass.
2007) (“Rule 37(c)(1) contains a narrow escape hatch
that allows courts to admit untimely evidence if the
proponent's failure to reveal it was either substantially
justified or harmless.”). The defendants aver that the
untimely filing was sufficiently harmful and prejudicial, in
that it was served 48 hours prior to Dr. Toner's noticed
deposition, and, presumably, the defendants did not have an
adequate opportunity to prepare for the deposition. (Dkt. No.
236). However, as the court understands it, the deposition
did in fact take place as scheduled, and the defendants
availed themselves of the opportunity to fully question Dr.
Toner as to the substance of his initial disclosure and the
rebuttal report at issue here. As the defendants were able to
fully depose Dr. Toner, and no scheduling order previously in
place was otherwise disrupted, the untimely filing was not,
in this court's view, sufficiently harmful or prejudicial
to the defendants to warrant striking the report.
additional point bears noting with respect to the substantive
content of Dr. Toner's rebuttal report. Independent of
the untimeliness issue, the defendants move to strike the
rebuttal report on the ground that Dr. Toner opines on the
credibility and motivations of the defendants and their
witnesses. (Dkt. No. 239). To the extent the rebuttal report
contains any statements or opinions by Dr. Toner pertaining
to credibility, motivations, or intent, those statements and
opinions are categorically improper. See e.g., United
States ex rel. Dyer v. Raytheon Corp., No. 08-10340-DPW,
2013 WL 5348571, at *13 (D. Mass. Sept. 23, 2013)(excluding
testimony that defendant “knowingly misrepresented
results” because no expert is qualified to testify as
to another's state of mind); Holmes Grp., Inc. v. RPS
Products, Inc., No. 03-40146-FDS, ...