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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MARTINA BROWN, 

 

 Plaintiff, 

 

 vs. Case No. 2:12-cv-1071 

 Judge Marbley 

 Magistrate Judge King 

ZACH SCOTT, et al., 

 

 Defendants. 

 

OPINION AND ORDER

 This matter is before the Court for consideration of Plaintiff’s 

Motion to Allow Her Medical Experts to Supplement Their Reports with 

Opinions Relating to Decedent’s Life Expectancy (“Plaintiff’s 

Motion”), Doc. No. 23. Specifically, plaintiff seeks “leave to submit 

a supplemental expert opinion report from her medical experts, Kenneth 

Scissors, M.D., and Randolph Martin, M.D.[,]” with an opinion of the 

life expectancy of decedent Tracey Brown. Id. at pp. 1-2. Plaintiff 

represents that Dr. Scissors “was asked about Plaintiff’s decedent’s 

life expectancy” at his October 2, 2013 deposition, and, “[a]lthough 

Dr. Scissors stated he will have an opinion on this question, he was 

not prepared to offer it at the time and sought an opportunity to 

supplement his report and to be re-deposed once he reviewed particular 

medical records related to the question.” Id. at p. 1. Defendants 

oppose Plaintiff’s Motion on the basis that plaintiff is improperly 

attempting to offer “new opinions . . . under the guise of calling 

them ‘supplementations[,]’” that it was plaintiff who elicited 

testimony regarding life expectancy at Dr. Scissors’ deposition, that 

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defendants will be prejudiced by the “new” opinions, and that 

plaintiff has failed to explain why she could not have obtained a 

timely expert opinion regarding life expectancy. Defendants’ 

Memorandum in Opposition to Plaintiff’s Motion to Supplement Expert 

Reports (“Defendants’ Response”), Doc. No. 26. Plaintiff has filed a 

reply, Doc. No. 27, in which plaintiff acknowledges that she “has not 

strictly complied with Rule 26.” See id. at p. 3. Plaintiff argues, 

however, that she should be permitted to supplement her expert reports 

with “additional opinions” and that this Court’s orders permit her to 

supplement the reports until the expert discovery deadline of November 

29, 2013. Id. at pp. 2-4. 

Rule 26 requires the disclosure of a party’s specially retained 

expert witness, see Fed. R. Civ. P. 26(a)(2)(A), and the 

contemporaneous disclosure of a written expert report. Fed. R. Civ. 

P. 26(a)(2)(B). The report must contain a complete statement of the 

specially retained expert’s opinions, the basis for such opinions, the 

information relied upon in forming the opinions, any summarizing or 

supporting exhibits, the expert's qualifications, the expert's 

publications from the preceding ten years, the expert's compensation, 

and a list of all cases in which the witness testified as an expert in 

the preceding four years. See Fed. R. Civ. P. 26(a)(2)(B). Rule 

26(a)(2)(D) sets forth default deadlines for these disclosures, but 

also specifically provides that “[a] party must make these disclosures 

at the times and in the sequence that the court orders.” Fed. R. Civ. 

P. 26(a)(2)(D). Parties have a duty to supplement expert reports, 

which “extends both to information included in the report and to 

information given during the expert’s deposition.” Fed. R. Civ. P. 

26(e)(2). 

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On January 24, 2013, this Court issued a Preliminary Pretrial 

Order, Doc. No. 11, that required, inter alia, the following: 

The reports of primary experts must be produced by May 30, 

2013; the reports of rebuttal experts must be produced by 

July 28, 2013. If the expert is specially retained, the 

reports must conform to Fed. R. Civ. P. 26(a)(2)(B), unless 

otherwise agreed to by the parties. If the expert is not 

specially retained, the reports must conforms [sic] to Fed. 

R. Civ. P. 26(a)(2)(C), unless otherwise agreed to by the 

parties. 

All non-expert discovery must be completed by April 30, 

2013; all expert discovery must be completed by November 

29, 2013. 

Preliminary Pretrial Order, p. 2. 

It is not disputed that plaintiff produced Dr. Scissors’ and Dr. 

Martin’s expert reports within the time permitted by the Court’s 

scheduling order. As discussed supra, plaintiff seeks to supplement 

these expert reports with an opinion of the life expectancy of 

decedent Tracey Brown. See Plaintiff’s Reply, p. 1. Plaintiff’s 

requested “supplementation” does not, however, fall within the “narrow 

reasons for permissible supplementation under Rule 26[.]” See Ullman 

v. Auto-Owners Mut. Ins. Co., No. 2:05-cv-1000, 2007 WL 1057397, at *5 

(S.D. Ohio Apr. 5, 2007). See also Eiben v. Gorilla Ladder Co., No. 

11-CV-10298, 2013 WL 1721677, at *6 (E.D. Mich. Apr. 22, 2013). “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.” 

Ullman, 2007 WL 1057397 at *5 (citing Minebea Co., Ltd. v. Papst, 231 

F.R.D. 3 (D.D.C. 2005)). “Nor is this a case in which supplementation 

would serve as a response to an opposing expert’s pointing out gaps in 

. . . reasoning.” Id. (citing Miller v. Pfizer, Inc., 356 F.3d 1326, 

1332 (10th Cir. 2004)). “And this is not even a case in which 

supplementation would reflect an expert's changed opinion.” Id. 

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(citing 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)]”)). Instead, 

plaintiff is seeking leave to permit her experts to render new, 

additional opinions on topics that were not originally addressed in 

their original reports. This effort does not fall within the ambit of 

Rule 26’s duty to supplement. See Fed. R. Civ. P. 26(e)(2); Fed. R. 

Civ. P. 26(a)(2)(B) (“The report must contain: (i) a complete

statement of all opinions the witness will express and the basis and 

reasons for them[.]”) (emphasis added). Moreover, the duty to 

supplement expert reports with “information given during the expert’s 

deposition,” see id., is not applicable here, where a party elicited 

deposition testimony from her own expert on a topic not addressed in 

the expert’s report. See e.g., Defendants’ Response, p. 2 (quoting 

Dr. Scissors’ deposition testimony). 

 The Court’s scheduling order required the parties to produce 

primary expert reports by May 30, 2013. Preliminary Pretrial Order, 

p. 2. In the Court’s view, resolution of Plaintiff’s Motion is 

governed by Rule 16 of the Federal Rules of Civil Procedure, which 

addresses modification of a court-established pretrial schedule. 

Rule 16(b) requires that the Court, in each civil action not 

exempt from the operation of the rule, enter a scheduling order, which 

may, inter alia, establish the dates by which expert disclosures must 

be made pursuant to Fed. R. Civ. P. 26(a)(2). Fed. R. Civ. P. 

16(b)(3)(B)(i). The rule further provides that “[a] schedule may be 

modified only for good cause and with the judge’s consent.” Fed. R. 

Civ. P. 16(b)(4). See also S.D. Ohio Civ. R. 16.2 (“[T]he Magistrate 

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Judge is empowered to . . . modify scheduling orders upon a showing of 

good cause.”). “‘The primary measure of Rule 16’s ‘good cause’ 

standard is the moving party’s diligence in attempting to meet the 

case management order’s requirements.’” Inge v. Rock Fin. Corp., 281 

F.3d 613, 625 (6th Cir. 2002) (quoting Bradford v. DANA Corp., 249 

F.3d 807, 809 (8th Cir. 2001)). “A district court should also 

consider possible prejudice to the party opposing the modification.” 

Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 830 (6th 

Cir. 2005) (citing Inge, 281 F.3d at 625). The focus is, however, 

“primarily upon the diligence of the movant; the absence of prejudice 

to the opposing party is not equivalent to a showing of good cause.” 

Ortiz v. Karnes, 2:06-cv-562, 2010 WL 2991501, at *1 (S.D. Ohio July 

26, 2010) (citing Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 

1995)). Whether to grant leave under Rule 16(b) falls within the 

district court’s discretion. Leary v. Daeschner, 349 F.3d 888, 909 

(6th Cir. 2003). 

 In the case presently before the Court, plaintiff argues that Dr. 

Scissors should be permitted to express an opinion on plaintiff’s 

decedent’s life expectancy because Dr. Scissors “was asked about . . . 

life expectancy” at his deposition. Plaintiff’s Motion, p. 1. 

Plaintiff also contends that defendants will not be prejudiced by the 

grant of this request and that permitting supplementation will not 

“affect the scheduling order in this case.” Plaintiff’s Motion, p. 2. 

Finally, plaintiff argues that “it can be no surprise that Plaintiff 

would want to introduce evidence of decedent Tracey Brown’s life 

expectancy, and, even if it is, Defendant has not shown how the 

surprise is ‘unfair,’ since Defendant cannot demonstrate that allowing 

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Dr. Scissors’ supplemental opinions will deprive Defendant of a fair 

hearing.” Plaintiff’s Reply, p. 3. Plaintiff’s arguments are without 

merit. 

 First, the mere fact that plaintiff herself sought on deposition 

to elicit a new opinion from her expert does not alone justify the 

relief sought. Second, plaintiff has offered no reason whatsoever for 

her failure to produce an expert opinion on life expectancy within the 

time frame established by the Court. If, as plaintiff argues, “it can 

be no surprise that Plaintiff would want to introduce evidence of 

decedent Tracey Brown’s life expectancy,” Plaintiff’s Reply, p. 3, 

then plaintiff should surely have asked her expert(s) to address that 

topic in a timely fashion. Finally, the Court notes that defendants 

have already deposed plaintiffs’ experts and the expert discovery 

deadline is fast approaching. If plaintiff were permitted to 

supplement her expert reports with new opinions now, defendants would 

face the potential of substantially increased expenses and a delay in 

the case schedule due to additional consultation with experts, 

depositions, and expert discovery. 

 In short, plaintiff has failed to establish good cause for 

modifying the Court’s scheduling order. Plaintiff’s Motion, Doc. No. 

23, is therefore DENIED. 

November 4, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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