UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JEFFREY TODD KNUDSON,

Plaintiff, No. 14-14854

v. District Judge George Caram Steeh

Magistrate Judge R. Steven Whalen

AMERICAN STEAMSHIP COMPANY,

ET AL.,

Defendants.

/

OPINION AND ORDER

This is a seaman’s personal injury action brought under the Jones Act, 46 U.S.C. §

30104. Before the Court is Defendant’s Motion to Strike Untimely Expert Reports of 1

Paul Macellari and Maureen Ziegler and Related Testimony [Doc. #80]. For the reasons

discussed below, the motion will be GRANTED IN PART AND DENIED IN PART,

specifically, GRANTED as to Maureen Ziegler and DENIED as to Paul Macellari.

I. FACTS

Mr. Knudson, a seaman who was employed on Defendant’s vessel, was injured

during the course of his employment as the result of a fall from a height of 30 feet.

Consequently, the nature and extent of his injuries and work limitations, as well as

the prognosis and course of required treatment, are at issue. Both parties have retained

experts to address these and other issues.

The Court’s latest stipulated scheduling order [Doc. #30] set the following dates:

Plaintiff’s expert disclosure–June 6, 2016

Formerly 46 U.S.C. § 688. 1

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Defendant’s expert disclosure–September 15, 2016

Rebuttal expert disclosures:–November 1, 2016

Discovery cut-off–April 14, 2017.

The order also provided that “[n]o further requests to adjourn dates by stipulation

will be granted.”

Plaintiff timely filed his initial expert disclosure on March 9, 2016. The disclosure

identified a number of experts, including Dr. Paul Macellari, a neuropsychologist, Dr.

Kevin Krystal, a physical therapist, as well as a vocational rehabilitation expert and the

Plaintiff’s primary care physician. It did not identify occupational therapist Maureen

Ziegler. Plaintiff did not provide a written report from Dr. Macellari at that time, but

provided a written report, dated October 27, 2016, on November 1, 2016. Defendant

characterizes this as a “rebuttal report.” As such, it was filed timely under the scheduling 2

order.

Dr. Macellari subsequently prepared a supplemental report, dated December 29,

2016, which was provided to defense counsel on March 20, 2017. It is this supplemental

report that Defendant seeks to exclude. Defendant argues that “Dr. Macellari’s

supplemental report and Ms. Ziegler’s functional capacity evaluation change the nature of

the claims tht the plaintiff intends to pursue at trial....” Motion, at 8, Pg. ID 1695.

II. DISCUSSION

Fed.R.Civ.P. 26(a)(2)(B) provides for the disclosure of written expert reports, and

Rule 26(a)(2)(C) directs that the reports be disclosed “at the time and in the sequence

Defendant states, “On November 1, 2016, the plaintiff provided a rebuttal expert 2

witness disclosure, identifying Dr. Macellari as an expert witness who does provide a

written report....The plaintiff provided an initial report from Dr. Macellari, dated October

27, 2016.” Motion [Doc. #80], at 8, Pg. ID 1695 (emphasis in original).

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directed by the court.” In this case, the time for initial disclosure of Plaintiff’s expert

reports was June 6, 2016, and for rebuttal report November 1, 2016. In addition,

Fed.R.Civ.P. 26(e)(2) provides for supplementation of the reports that were produced

under Rule 26(a)(2)(B):

“For an expert whose report must be disclosed under Rule 26(a)(2)(B), the

party's duty to supplement extends both to information included in the

report and to information given during the expert's deposition. Any

additions or changes to this information must be disclosed by the time the

party's pretrial disclosures under Rule 26(a)(3) are due.”

A failure to timely disclose an expert report under Rule 26(a)(2)(B) brings Rule

37(c)(1) into play. That Rule provides that “[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.” See R C. Olmstead, Inc. v. C.U. Interface, LLC,

606 F.3d 262, 271 (6th Cir.2010)((“Federal Rule of Civil Procedure 37(c)(1) requires

absolute compliance with Rule 26(a), that is, it mandates that a trial court punish a party

for discovery violations in connection with Rule 26 unless the violation was harmless or

is substantially justified.”)(Citations omitted). The exclusion of untimely disclosed

expert testimony is entrusted to the court’s broad discretion. Pride v. BIC Corp., 218

F.3d 566, 578 (6 Cir. 2000)((citing Trilogy Comm'n v. Times Fiber Comm'n, 109 F.3d th

739 (Fed.Cir.1997)).

The Defendants argues, in effect, that neither Macellari’s nor Zeigler’s reports can

be considered “supplemental reports” under Rule 26(e), but are instead untimely expert

disclosures and reports that are excludable at trial. A central question is therefore 3

Defendant argues, “A party cannot avoid discovery sanctions by casting an 3

otherwise untimely disclosure merely as a supplement under Rule 26(e).” Motion, at 11,

Pg. ID 1698.

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whether either report can be considered a true supplemental report. If it cannot, then it is

excludable under Rule 37(c)(1).

A. Dr. Macellari

The parties disagree about the reasons Dr. Macellari’s most recent report was not

produced earlier. The Plaintiff contends that Macellari was unable to complete his

examination earlier because Defendants improperly refused to authorize payment for a

referral to Dr. Macellari, a referral made by Plaintiff’s treating physician, and failed to

provide critical test data to Dr. Macellari. Plaintiff argues that therefore, Defendants were

improperly withholding payments for maintenance and cure. Defendants, on the other

hand, argue that they are entitled to investigate and obtain corroboration for a claim of

maintenance and cure, and are not required to immediately commence payment.

If the report that was disclosed on March 20, 2017 is, in fact, a proper

supplemental report under Rule 26(e)(2), that is, if it was in supplementation of Dr.

Masellari’s November 1, 2016 rebuttal report (which was itself timely filed), then it is

unnecessary to decide whether or not Defendants improperly delayed payment. Under

Rule 26(a)(3)(B), pretrial disclosures must be made at least 30 days before trial “[u]nless

the court orders otherwise.” At the time Dr. Macellari’s report was disclosed on March

20, 2017, trial was scheduled for June 6, 2017. Scheduling Order [Doc. #30]. In this case,

the operative date for disclosure of supplemental expert reports would have been May 6,

2017. If considered a true supplemental report, Dr. Macellari’s March 20 report was

timely.

In Eiben v. Gorilla Ladder Co., 2013 WL 1721677 (E.D.Mich. 2013), Judge

Rosen identified a number of factors that would justify supplementation of an expert’s

report under Rule 26(e)(2), including responding to an opposing expert’s criticism of gaps

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in the reasoning of a report, correcting errors or inaccuracies, or even changing an

opinion:

“The narrow reasons for permissible supplementation under Rule 26(e)(1)

simply do not exist here. This is not a situation in which a party sought to

supplement a report to correct a late-in-the-day error or inaccuracy in its

reasoning. See, e.g., Minebea Co., Ltd. v. Papst, 231 F.R.D. 3

(D.D.C.2005) (permitting error correction via supplementation). Nor is this

a case in which supplementation would serve as a response to an opposing

expert's pointing out gaps in Morse's chain of reasoning. See, e.g., Miller v.

Pfizer, Inc., 356 F.3d 1326, 1332 (10th Cir.2004). This is not even a case in

which supplementation would reflect an expert's changed opinion. See

Fed.R.Civ.P. 26 Advisory Committee Notes, 1993 Amendments, Subdivision

(e) ( ‘changes in the opinions expressed by the expert whether in the report

or at a subsequent deposition are subject to a duty of supplemental

disclosure under [Rule 26(e)(1) ]’).” Eiben at *6 (emphasis added).

Even if considered a “change of opinion,” as Defendants argue, Plaintiff had a

right and duty to supplement under Rule 26(e)(1). Dr. Macellari’s March 20 report is

also properly considered a rebuttal of, and therefore responsive to, the Defendants’s

expert report.

I find that Dr. Macellari’s March 20, 2017 report does qualify as a supplemental

report under Rule 26(e)(2), and should not be stricken.

B. Maureen Ziegler

On March 20, 2017, the same day Plaintiff produced Dr. Macellari’s supplemental

report, he produced for the first time a report by occupational therapist Maureen Ziegler.

Unlike Dr. Macellari, Ms. Ziegler did not previously file an expert report.

In Gilbane Bldg. Co. v. Downers Grove Community High School District No. 99,

2005 WL 838679 (N.D. Ill. 2005), the plaintiff served a supplemental report that had

been prepared by an expert who had not prepared the initial report. This new expert was

asked to make information in the original report “ ‘more definitive by expanding upon it

with greater detail, providing further justification.’” Id. at *9. The court rejected the

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plaintiff’s argument that this was proper supplementation under Rule 26(e), stating that

“the concept of a supplemental report suggests that the supplemental opinions will be the

opinions of the expert who prepared the original report, not the opinions of a different

expert.” Id. Citing the requirement of Rule 26(a)(2) that a party must timely disclose the

report of an expert witness who will testify at trial, the court stated, “It logically follows

that a supplemental report—the purpose of which is to disclose modifications to the

substance of the expert's testimony—should disclose what the testimony of the originallydisclosed expert will be, not what the testimony of a different witness will be.” Id. See

also Noffsinger v. The Valspar Corp., 2011 WL 9795, *3 (N.D.Ill. 2011)(citing Gilbane,

and stating, “A new expert, especially one who conducts new tests and writes a new

report, is not ‘supplementation’”); In re Enron Corporation Securities, Derivative &

""Erisa'' Litigation 2007 WL 5023541, 8 -11 (S.D.Tex. 2007)(finding subsequent report

prepared by a different expert was not a proper supplemental report).

I consider the Gilbane analysis persuasive, and find that Ms. Ziegler’s report

cannot be considered a supplemental report, but rather constitutes a previously

undisclosed and grossly untimely new report. Therefore, under Rule 37(c)(1), the report

is admissible only if the failure to disclose it was substantially justified or if its admission

would be harmless.

I do not find that the failure to disclose earlier was substantially justified. The

date for Plaintiff’s initial expert disclosures was September 15, 2016, with rebuttal

disclosures due on November 1, 2016. Given the issues in this case, and the fact that is

has been pending since December of 2014, there is no reason that Plaintiff could not have 

disclosed his expert in occupational therapy by September of 2016, and certainly by

November of 2016.

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The lengthy delay in disclosing the Ziegler report is also prejudicial. Late in the

game, Plaintiff proffered the report of a previously unidentified and undeposed expert

witness, suggesting the appearance of a “lying in wait” strategy. As the Court stated in 

Olmstead, 606 F.3d at 271, “Under Rule 26(a), a report must be complete such that

opposing counsel is not forced to depose an expert in order to avoid an ambush at trial....”

Permitting the Ziegler report would lead to yet another round of expert depositions,

increasing the delay and the expense to Defendants.

Therefore, I will order the Ziegler report stricken, and Ms. Ziegler herself will not

be permitted to testify in Plaintiff’s case-in-chief. However, Plaintiff states that three of

his other experts–Dr. Kristl, Vocational Expert Dr. Ancell, and his expert

economist–relied in part on Ms. Ziegler’s evaluations. Defendants do not object to these

three experts, and the fact that they may have relied on Ziegler’s clinical evaluation does

not impinge on the admissibility of their testimony. Therefore, it should be made clear

that striking the Ziegler report and precluding the testimony of Ms. Ziegler will not work

to bar any otherwise admissible testimony from these witnesses.4

III. CONCLUSION

Defendant’s Motion to Strike Untimely Expert Reports of Paul Macellari and

Maureen Ziegler and Related Testimony [Doc. #80] is GRANTED IN PART and

DENIED IN PART, under the terms discussed in this Opinion and Order.

The motion is DENIED as to Dr. Paul Macellari.

The motion is GRANTED as to occupational therapist Maureen Ziegler.

To the extent that Defendants open the door to information from Ziegler in their 4

cross-examinations of Plaintiff’s experts, Plaintiff may have a basis to call her as a

rebuttal witness. That issue, however, is not ripe, and is not before the Court at this time.

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IT IS SO ORDERED.

s/ R. Steven Whalen

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: February 15, 2018

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of

record on February 15, 2018, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla

Case Manager to the

Honorable R. Steven Whalen

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