UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Brent M. Porter

Mary M. Salstrom

v. Civil No. 07-cv-28-PB

Dartmouth College

O R D E R

Defendant moves to strike three of plaintiffs’ expert

designations as untimely.

BACKGROUND

Plaintiffs’ decedent child was a Dartmouth College student

who received devastating and eventually fatal injuries during a

Dartmouth physical education ski class. Plaintiffs have

identified four expert witnesses and submitted reports. 

Defendant seeks to preclude plaintiffs from using three of their

experts at trial because they were not disclosed timely. 

Plaintiffs’ counsel argues that the disclosure and reports were

timely made.

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ANALYSIS

1. Rule 26(a)(2)

Rule 26(a)(2) requires parties to disclose the identity

of and serve a report from retained experts. Rule 26(a)(2)

requires disclosure at the times ordered by the court. In this

case, the court has issued several discovery orders.

The first “Scheduling Order” (document no. 17) was entered

on June 8, 2007 and provided in part:

EXPERTS’ WRITTEN REPORTS AND SUPPLEMENTATIONS:

Plaintiffs: March 1, 2008

Defendant: May 1, 2008

Plaintiffs’ Supplementation: June 1, 2008

Defendant’s Supplementation: July 1, 2008

CHALLENGES TO EXPERT TESTIMONY:

August 1, 2008

Defendant served a timely report on May 1, 2008, but plaintiffs

failed to even identify experts by March 1st.

Over defendant’s objection, I granted plaintiffs’ motion to

extend scheduling order dates (document no. 27) on May 27, 2008. 

Plaintiffs were obligated by that order to serve expert reports

by July 1, 2008 and to provide any Supplementations by October 1,

2008. Plaintiffs served the expert report of a liability expert,

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Stanley Gale. After some quarreling about whether Mr. Gale

needed to see the Dartmouth Skiway in winter conditions before he

finally supplemented his report, the parties assented to extend

discovery in part to allow “Plaintiffs to serve supplementation

by February 1, 2009.” Assented to Motion to Continue and Extend

Deadlines (document no. 32.).

On October 8, 2008, plaintiffs served reports from two

previously unidentified experts:

a. Douglas S. Cohen, M.D., who has opined that decedent

died as a result of her brain injuries; and

b. Sylvie Cover, an art teacher and artist who has opined

about decedent’s lost artistic career.

When defense counsel protested, plaintiffs’ counsel replied that

“our interpretation of supplementation in the Scheduling Orders

throughout is that the parties would be able to put in

supplemental reports on other issues.” Affid. Quarles, (document

no. 33-2) Exh. A.

Five weeks later, on November 17, 2008, plaintiffs’ counsel

emailed the report of a new expert on lost earning capacity.

Plaintiffs’ counsel has argued that the “supplementations”

deadline meant supplementing with additional experts, not just

supplementing the reports of already disclosed experts. This

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argument is not only disingenuous but frivolous. Rule 26(e)(2)

makes it clear that the supplementation is for information

included in the report and information given at the expert’s

deposition. Supplementation is to be made when a party learns

that the expert’s report is “incomplete or incorrect and if the

additional or corrective information has not otherwise been made

known to the other parties during the discovery process or in

writing.” Federal Rules of Civil Procedure 26(e)(1).

The disclosures of October 8th and November 17th were not

timely as “supplementation” within the scheduling order. 

Plaintiffs’ counsel’s arguments to the contrary do not pass the

“straight face” test and are frivolous.

2. Rule 37(c)(1)

Rule 37(c)(1) provides in pertinent part that 

[a] party that without substantial justification fails to

disclose information required by Rule 26(a) or Rule 27(e)(1)

or to amend a prior response to discovery as required by

Rule 26(a)(2) is not, unless such failure is harmless,

permitted to use as evidence at trial, at a hearing, or on

motion any witness or information not so disclosed. In

addition to or in lieu of this sanction, the court on motion

and an opportunity to be heard, may impose other appropriate

sanctions . . .. 

Under First Circuit law, mandatory preclusion of the

undisclosed information is the sanction called for in the

ordinary case. Klonoski v. Mahlab, 156 F. 3d 255, 269 (1st Cir.

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1998). 

Still, preclusion is not a strictly mechanical exercise;

district courts have some discretion in deciding whether or

not to impose that onerous sanction. See, e.g. Jackson v.

Harvard Univ., 900 F. 2d 464, 468-69 (1st Cir. 1990). In

passing upon a district court’s decision to order

preclusion, an appellate court should consider an array of

factors, including “the history of the litigation, the

proponent’s need for the challenged evidence, the

justification (if any) for the late disclosure; and the

opponent’s ability to overcome its adverse effects.” 

Macaulay, 321 F. 3d at 51.

Santiago-Diaz v. Laoratorio Cliníco y De Referencia Del Este and

Sara Lopez, M.D., 456 F. 3d 272, 276-77 (1st Cir. 2006).

The First Circuit has upheld the preclusion of a medical

malpractice expert disclosed one week before trial and an expert

disclosed three months after the discovery deadline. See La

Place - Bayard v. Battle, 295 F.3d 157 (1st Cir. 2002); Primus v.

United States, 389 F.3d 231 (1st Cir. 2004). District courts

have broad discretion in imposing Rule 37(c) sanctions. 

Preclusion is mandated “. . . unless the failure was

substantially justified or is harmless.” Fed. R. Civ. P. 37(a). 

The Rule permits lesser sanctions. Each expert disclosure must

be considered.

3. The Expert Disclosures

a. Douglas S. Cohen, M.D.

Paragraphs 29 and 30 of plaintiffs’ complaint allege that

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the head injury incurred in the ski class caused extensive

medical care and ultimately caused decedent’s death. Defendant’s

answer to those paragraphs was that it was without sufficient

information to admit or deny the allegations and therefore denied

them. Defendant has persisted in that answer. The opinion of

Dr. Cohen is critical to proving the allegations.

Plaintiffs’ justification for the delay in disclosing Dr.

Cohen and his report is that Dartmouth and Dartmouth Hitchcock

refused to provide decedent’s medical records until they were

subpoenaed. Defendant points out that the document request was

first made on August 7, 2008, thirty-eight days after expert

disclosures were due and six months after defendant told

plaintiffs’ counsel that Dartmouth had no identity or control

over Dartmouth Hitchcock Medical Center. Defendant also points

out that Dr. Cohen prepared his report on September 2, 2008, two

days prior to the subpoena. It is clear that counsel for the

plaintiffs have no honest justification for missing the deadline. 

Whether counsel’s failure is due to incompetence or negligence,

the failure in a wrongful death case is shocking. This fake

justification and ridiculous position on supplementation leave

plaintiffs’ counsel with no credibility with me.

Despite the lack of justification, the plaintiffs do not

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1In its motion for summary judgment, defendant admits

decedent died of her ski class injury.

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deserve to add the loss of this crucial witness to the loss of

their daughter because of the malpractice of their lawyers. 

Dartmouth is not harmed by the late disclosure. The trial is not

until October 6, 2009. Assuming Dartmouth can actually find a

credible physician to express opinions contrary to Dr. Cohen

and/or the death certificate, it is granted two months in which

to do so.1 In addition, as a sanction, Dartmouth is given two

months in which to depose Dr. Cohen and plaintiffs’ counsel are

ordered to personally pay any expert fee for that deposition, the

legal fee and expenses of one defense lawyer for the deposition

and the stenographic fee. 

b. Sylvie Covey and David Stein

Ms. Covey’s opinions relate to her evaluation of decedent’s

art work and likelihood of future commercial success as an

artist. Dr. Stein’s opinion is an assessment of decedent’s lost

earning capacity assuming a career as an artist. Once again

counsel have no credible justification for failing to timely

disclose these experts. Other than to lose the benefit of

counsel’s negligence, Dartmouth can point to no harm other than

the cost to depose the experts and potentially prepare Daubert

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motions. The latter appear unlikely to be successful. As a

sanction, defendant may depose both experts at the personal

expense of plaintiffs’ counsel (expert fees, stenographic fees,

legal fees and expense of one lawyer). They may also have two

months to get their own experts on these subjects.

The motion (document no. 33) is granted to the extent as set

forth above. In addition, plaintiffs’ counsel are to personally

pay the reasonable legal fees incurred by defendant in connection

with this motion. Defendant is to provide counsel with a

detailed fee statement within ten (10) days. Plaintiffs’ counsel

are to pay the statement or show cause why not within ten (10)

days thereafter.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 8, 2009

cc: Charles J. Raubicheck, Esq.

 K. William Clauson, Esq.

 Kevin Murphy, Esq.

 Bradford T. Atwood, Esq.

 Matthew R. Johnson, Esq.

 Thomas B.S. Quarles, Jr., Esq.

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