United States District Court, W.D. Washington, Tacoma
ORDER DENYING PLAINTIFF'S MOTION TO CONSOLIDATE,
DENYING DEFENDANT'S MOTION TO STRIKE SUPPLEMENTARY EXPERT
REPORTS, AND SETTING CASE FOR TRIAL
matter comes before the Court on Plaintiff Aaron Harris's
(“Harris”) motion to consolidate cases, Dkt. 164,
and Defendant National Railroad Passenger Corporation d/b/a
Amtrak's (“Amtrak”) motion to strike
supplementary expert reports by Dr. Richard Seroussi
(“Seroussi”), Anthony J. Choppa
(“Choppa”), C. Frederick DeKay
(“DeKay”), and Wilson C. “Toby” Hayes
(“Hayes”) and preclude these experts from relying
on these supplementary expert reports at trial, Dkt. 166. The
Court has considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby denies Harris's motion to consolidate and denies
Amtrak's motion to strike supplementary expert reports
for the reasons stated herein.
PROCEDURAL AND FACTUAL BACKGROUND
January 12, 2018, Harris filed a complaint against Amtrak in
King County Superior Court for the State of Washington
asserting a claim for negligence and a claim for violation of
Washington's Consumer Protection Act (“CPA”)
based on injuries Harris sustained in the December 18, 2017
Amtrak derailment. Dkt. 1-1. On January 29, 2018, Amtrak
removed the matter to this Court. Dkt. 1.
December 12, 2018, the Court granted a stipulated motion to
consolidate this matter for trial with two similar matters,
Wilmotte v. National Railroad Passenger Corporation,
C18-0086BHS, and Skyllingstad v. National Railroad
Passenger Corporation, C18-0648BHS. Dkt. 38.
September 3, 2019, the consolidated case proceeded to trial.
Dkt. 146. On September 5, 2019, the jury heard testimony from
Seroussi on the diagnosis and treatment of Harris's
injuries. Dkt. 152. On cross-examination, Seroussi explained
that he had examined Harris in August of 2018, as reflected
in his expert report produced in discovery, but had also
examined him a few days prior to trial. Id. at 1, 3.
Amtrak objected on the basis that it did not receive a report
of the most recent examination. Id. at 3. After
hearing argument from the parties, the Court concluded that
Seroussi's testimony must be struck in some way because
Seroussi testified as to Harris's injuries up to trial.
Id. at 4. The Court considered supplemental
briefing, concluded it could not craft an appropriate
curative or limiting instruction and gave the parties the
opportunity to craft such an instruction. Id. at 5.
The Court informed the parties on the record that if a
mistrial is declared, “the defense should understand
that it is likely the Court will, without now ruling, allow
Mr. Harris, in a subsequent trial, to present his evidence on
permanency and prognosis for future impairments.” Dkt.
156 at 6-7. After the parties were unable to agree on an
instruction, the Court informed the jury that Harris's
case would no longer proceed, and trial proceeded with the
other plaintiffs. Id. at 21. On September 11, 2019,
the Court formally granted Amtrak's motion for a
mistrial. Dkt. 152.
Motion to Strike Expert Reports
Rule of Civil Procedure 26(e) “requires supplementation
of an initial expert disclosure ‘if the party learns
that in some material respect the disclosure . . . is
incomplete or incorrect . . . .'” Luke v.
Family Care & Urgent Med. Clinics, 323 Fed.Appx.
496, 500 (9th Cir. 2009). Supplementation means
“correcting inaccuracies, or filling in the interstices
of an incomplete report based on information that was not
available at the time of the initial disclosure.”
Id. (quoting Keener v. United States, 181
F.R.D. 639, 640 (D. Mont. 1998)). Federal Rule of Civil
Procedure 37(c)(1) requires the exclusion of late-disclosed
evidence, a sanction which is “self-executing”
and “automatic, ” and is avoided only if the
party facing exclusion shows that the untimely disclosure was
“substantially justified” or is
“harmless.” See Torres v. City of Los
Angeles, 548 F.3d 1197, 1212-13 (9th Cir. 2008). While
“‘[t]he fact that a case has been reset for trial
is not automatically a justifiable reason to reopen
discovery, '” Bradshaw v. FFE Transp.
Serv's, Inc., 715 F.3d 1104, 1108 (8th Cir. 2013)
(quoting Harris v. Steelweld Equip. Co., 869 F.2d
396, 400 (8th Cir. 1989)), a case's schedule may be
modified “for good cause and with the judge's
consent, ” Local Rules W.D. Wash. LCR 16(b)(6).
Court previously indicated that Harris would likely be
permitted to present his evidence on permanency and prognosis
for future impairments when this case was reset for trial.
Dkt. 156 at 6-7. The Court now finds that the key change
Amtrak has identified to Seroussi's supplemental expert
report, which is more current information about Harris's
recovery, reasonably constitutes information that was not
available at the time the initial expert report was disclosed
and does not reflect a new theory of liability or correct
errors in the previous report. Amtrak was made aware of the
key change to Seroussi's opinion at trial so it is not
surprised by the additional information; additional discovery
will allow Amtrak to cure any prejudice; the Court
anticipates the additional discovery will not disrupt
rescheduling this matter for trial; and the Court did not
find the failure to disclose was willful or in bad faith.
Lanard Toys Ltd. v. Novelty, 375 Fed.Appx. 705, 713
(9th Cir. 2010) (courts may consider prejudice or surprise,
ability to cure prejudice, likelihood of disruption of trial,
and bad faith or willfulness in failure to timely disclose
when considering Fed.R.Civ.P. 37(c) sanctions).
regarding Amtrak's objections as to Seroussi's
qualifications to testify about Harris's prognosis, the
Court has allowed and will allow a qualified physiatrist to
provide testimony concerning an area outside his medical
specialty so long as he still meets the Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 597 (1993)
standards. Physiatrists, as with other specialists, are
permitted to rely on the records of other treating and
examining physicians. If Seroussi can lay a foundation that
he has the knowledge, training, and experience to evaluate
the nature and extent of Harris's injury as it related to
future treatment and rehabilitation and the limits of those
modalities and make a prognosis, the Court will permit his
testimony. Therefore, the Court denies the motion to strike
as to Seroussi.
Choppa, the Court finds that the update to his vocational
projections to which Amtrak objects is reasonably based on
the new information contained in Seroussi's supplemental
report. As to DeKay, Amtrak objects that his supplemental
report contains substantial upward revisions of Harris's
total compensations losses and care costs, past and future
earnings, present value of the estimated costs of care
specified by the life care planners, and additional
evaluations, treatment protocols, and updated pricing. Dkt.
166 at 5-6. Harris counters that the revisions Amtrak cites
are not as substantial as Amtrak argues because Amtrak
focused on DeKay's December 7, 2018 report and failed to
analyze his March 2019 report. Dkt. 171 at 10. DeKay also
declares that he updated his report with the relevant current
U.S. economic data. Dkt. 174. The Court concludes that the
updates to DeKay's report appear to reasonably correspond
to the updates in Choppa's report and the more current
U.S. economic data. Additional discovery will permit Amtrak
to understand and analyze any additional information DeKay
received from Harris's counsel. See Dkt. 175 at
5. Therefore, the Court denies the motion to strike as to
Choppa and DeKay.
Hayes, Amtrak objects to the portion of his supplemental
expert report which refers to Shauna Stern's
(“Stern”) trial testimony as lacking foundation.
Dkt. 166 at 6-7. Amtrak also argues that Hayes' testimony
would be irrelevant and prejudicial. Id. at 12.
Stern testified to Harris's location in the train car,
his trajectory during the crash, and that he hit his head on
a window ledge leaving hair and what Stern believed to be
brain tissue. Id. Amtrak objects that the testimony
lacks foundation because the hair and tissue have not been
tested to confirm they are Harris's, that Stern's
testimony was uncertain on identifying brain tissue and
identifying tissue is beyond the scope of a lay witness, and
that because Hayes is not a medical expert, he is not
qualified to testify about the extent of Harris's
injuries. Id. at 7, 11; Dkt. 175 at 6. Harris simply
counters that trial testimony is new evidence Hayes may rely
on to support his opinion on the cause of Harris's
injuries. Dkt. 171 at 12. Hayes's specific opinion that
Harris “impacted his head in the vicinity of the window
ledge where Ms. Stern found hair and what she believed to be
brain tissue and came to rest where she found him . .
.” does not appear to explicitly opine that the tissue
observed was brain tissue or that it did in fact
belong to Harris. The Court agrees with Amtrak that without
more it would be improper and potentially prejudicial for
Hayes to opine that brain tissue was present or that the
blood and tissue belonged to Harris but does not read his
opinion as stated to necessarily make these assertions
(without now ruling on objections which may be raised at
trial).Additionally, regarding relevance of
Hayes's testimony generally, assuming a foundation is
laid Hayes's testimony may be relevant to the particular
issue of the force of the impact Harris experienced during
the accident; Harris does not appear to intend to offer
further evidence through Hayes. Therefore, the Court declines
to exclude Hayes's supplemental report or testimony based
on Amtrak's objections.
the Court also finds good cause to modify the scheduling
order for the limited purpose of allowing Amtrak an
opportunity to take the deposition of Seroussi, Choppa,
DeKay, and Hayes, submit supplemental expert and/or rebuttal
reports, and conduct a supplemental independent medical
examination of Harris if necessary. The Court anticipates the
additional depositions may be accomplished by phone or
videoconference and expects that the parties will work
together expeditiously to facilitate the additional discovery
the Court has indicated will be necessary.