Gould-Lehe v. United States of America

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
Martha Gould-Lehe, Individually, and as Legal Guardian of John Lehe v.
United States of America
Case No. 3:21-cv-00265-TMB
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
This matter comes before the Court on Defendant United States of America’s (the “Government”)
Motion to Preclude Dr. Ramin Zand, M.D. at Docket 28 (the “Motion”).1 The Government seeks
to preclude expert witness Dr. Zand from Plaintiffs’ expert witness list; in the alternative, the
Government asks the Court to “issue a new scheduling order that allows Defendant sufficient time
to find and retain a reciprocal expert in neuroimaging in response.”2 Plaintiffs oppose the Motion.3
For the reasons stated below, the Motion is GRANTED in part and DENIED in part.
A. Background
On December 8, 2021, Martha Gould-Lehe filed a Complaint against Alaska Native Medical
Center on behalf of herself and her husband John Lehe.4 In this Federal Tort Claims Act case,
Plaintiffs allege two causes of action: (1) Negligence and Recklessness, and (2) Loss of Spousal
Consortium.5
On July 19, 2022, the Court issued a Scheduling and Planning Order (the “Scheduling Order”),
setting a trial date for October 2, 2023.6 The parties initially complied with the expert witness
deadlines set out in the Scheduling Order:
- 	On August 26, 2022: The parties identified expert witnesses.7
- 	On 	September 	9, 	2022: 	The 	parties 	identified 	“responsive 	supplemental 	expert
witnesses.”8
1 Dkt. 28 at 2 (Motion to Preclude).
2 Id.; Dkt. 32 at 6 (Reply).
3 Dkt. 30 (Opposition).
4 Dkt. 1 (Complaint).
5 Id. at 7–8; see also ALASKA S TAT. § 09.55.530–560.
6 Dkt. 13 (Scheduling & Planning Order); Dkt. 23 (Transcript).
7 See Dkt. 13 at 4 (“Expert witnesses shall be identified by each party on or before August 26,
2022, and each party may identify responsive supplemental expert witnesses within 14 days
thereafter.”) (emphasis in original); Dkt. 28-1 (Exhibit – Plaintiffs’ Expert Witness Identification).
8 Dkt. 13 at 4; Dkt. 28-2 (Exhibit – Plaintiffs’ Supplemental Expert Witness Identification).
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- 	On September 26, 2022: Plaintiffs disclosed their expert reports.9
- 	November 26, 2022: Defendant disclosed its expert reports.10
The Scheduling Order required Plaintiffs to disclose their expert witness rebuttal reports by
December 28, 2022. However, on December 14, 2022, Plaintiffs filed an expedited Motion to
Extend this deadline, requesting a 26-day extension because certain expert witnesses were unable
to complete their reports due to the winter holidays.11 The Government opposed this motion.12 The
Court granted the Motion to Extend and reset Plaintiffs’ expert rebuttal report deadline to
January 23, 2022, without modifying the Scheduling Order’s remaining dates.13
On January 31, 2023, the Government filed the Motion, claiming that Plaintiffs violated Federal
Rule of Civil Procedure 37(c)(1) when they untimely disclosed expert witness, Dr. Zand.14 The
Government asserts that, “on January 20, 2023, Plaintiffs provided it with [the document,]
‘Plaintiffs’ Supplemental Expert Disclosure,’” which “included for the first time the name of
Dr. Ramin Zand, a professor of neurology, board-certified in neurology, vascular neurology, and
neuroimaging.”15 Plaintiffs oppose the Motion. On February 22, 2023, Plaintiffs requested oral
argument, which the Court granted.16 Oral argument was heard on March 14, 2023.17 This matter
is ripe for resolution.18
B. Motion to Preclude
In the Motion, the Government argues that Plaintiffs should be precluded from using Dr. Zand as
an expert witness because Plaintiffs failed to identify Dr. Zand by the “responsive supplemental
expert witness” deadline of September 9, 2022.19 In its Reply, the Government clarifies that, if the
Court does not find Dr. Zand’s preclusion to be appropriate, the Court should “issue a new
scheduling order that allows Defendant sufficient time to find and retain a reciprocal expert in
neuroimaging in response.”20 In support of Dr. Zand’s preclusion, the Government states that
Plaintiffs have failed to establish a substantial justification for Dr. Zand’s untimely inclusion or to
9 Dkt. 28-3 (Plaintiffs’ Expert Witness Disclosure).
10 Dkt. 13 at 4; Dkt. 28 at 3.
11 Dkt. 14 (Motion for Extension of Time).
12 Dkt. 20 (Motion for Reconsideration).
13 Dkt. 19 (Text Order Granting Motion to Extend). After granting the Expedited Motion to Extend,
the Government filed a Motion for Reconsideration, which the Court denied. Dkt. 20; Dkt. 21
(Response); Dkt. 22 (Declaration of AUSA Marie Scheperle); Dkt. 25 (Order Denying Motion for
Reconsideration).
14 Dkt. 29 at 2 (Declaration of Dustin M. Glazier); Dkt. 28-4 (Plaintiffs’ Supplemental Expert
Witness Disclosure).
15 Dkt. 28 at 3 (citation omitted); Dkt. 28-4 (Plaintiffs’ Supplemental Expert Disclosure); Dkt. 28-
5 (Curriculum Vitae).
16 Dkt. 33 (Motion for Oral Argument); Dkt. 34 (Text Order).
17 Dkt. 38 (Minute Entry).
18 See Dkt. 28; Dkt. 30; Dkt. 32.
19 Dkt. 13 at 4.
20 Dkt. 32 at 6.
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establish that Dr. Zand’s inclusion is harmless, as Federal Rule of Civil Procedure (“Rule”)
37(c)(1) requires.21
In opposition, Plaintiffs argue that: (1) “Dr. Zand is being offered to rebut the Government’s
neurologist, Dr. Chitra Venkatasubramanian, M.D.,” and; (2) “despite its claims to the contrary,
the 	Government 	is 	in 	no 	sense 	surprised 	that 	[Plaintiffs 	are] 	proffering 	a 	rebuttal 	to
Dr. Venkatasubramanian's theories.”22
In reply, the Government asserts that Plaintiffs “already have two, timely identified expert
witnesses” who “expressly rebut” the opinions proffered by Dr. Venkatasubramanian.23 The
Government contends that based on Plaintiffs’ argument that Dr. Zand was a timely-introduced
expert witness, “any expert could be added at the rebuttal stage—without prior identification—as
long as they refute some portion of the opposing party’s expert reports.”24
C. Legal Standard
Rule 26 governs the identification of lay and expert witnesses, requiring parties to disclose the
identities of each expert and their written reports. “Absent other direction from the court, a rebuttal
report shall be filed ‘within 30 days after the disclosure’ of the evidence that the expert is assigned
to rebut.”25
Under Rule 37(c)(1):
if a party fails to provide information or identify a witness 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.26
The Ninth Circuit recognizes four guiding factors in determining whether substantial justification
or harmlessness exist, including: “(1) prejudice or surprise to the party against whom the evidence
is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of trial;
and (4) bad faith or willfulness in not timely disclosing the evidence.”27
21 Id. at 6–10.
22 Dkt. 30 at 1–2.
23 Dkt. 32 at 4.
24 Id. at 3.
25 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (citing Fed.
R. Civ. P. 26(a)(2)(C)).
26 Fed. R. Civ. P. 37(c)(1) (emphasis added).
27 Liberty Ins. Corp. v. Brodeur, 41 F.4th 1185, 1192 (9th Cir. 2022) (citing Silvagni v. Wal-Mart
Stores, Inc., 320 F.R.D. 237, 242 (D. Nev. 2017)) (quotations omitted) (holding that “the district
court abused its discretion because it completely failed to consider whether any defect in the
Brodeur disclosures was harmless or substantially justified before imposing sanctions. Instead, it
simply concluded that ‘I may exclude from trial any evidence that is not within the scope of
the Rule 26(a) disclosures.’”).
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Rule 37 indicates that “consideration must be given to the harm, if any, caused by the alleged
failure.”28 This rule is a “self-executing,” “automatic” sanction that is “designed to provide a strong
inducement for disclosure.”29
“Exclusion sanctions are not a foregone conclusion if substantial justification or harmlessness have
not been established, however. ‘Rule 37(c)(1) does not require the court, in all instances, to exclude
evidence as a sanction for a late disclosure that is neither justified nor harmless.’”30 “Absent a
showing of bad faith or other misconduct, courts are leery of imposing the harsh sanction of
exclusion absent a significant possibility of prejudice due to the untimeliness of the disclosure.”31
Ultimately, the district court is entrusted with “particularly wide latitude” in exercising its
discretion to impose sanctions under Rule 37(c),32
recogniz[ing] the strong preference for deciding cases on the merits
whenever 	reasonably 	possible. 	. 	. 	. 	[T]he 	initial 	disclosure
requirements are meant to provide necessary information to create a
balanced playing field, and sanctions serve as a deterrent to parties
seeking to avoid those obligations. These rules should not be viewed
as procedural weapons through which parties seek to gain a tactical
litigation advantage. The focus of defense counsel should be
“work[ing] out agreements that will reasonably permit them to
respond to newly disclosed evidence and defend the claims on the
merits,” rather than automatically resorting to motions for exclusion
sanctions.33
D. Discussion
In consideration of the Motion, the parties’ briefing, and arguments presented, the Court finds that
Dr. Zand’s preclusion would be inappropriate at this juncture, preferring instead that the parties
propose modifications to the Scheduling Order so as to remedy Dr. Zand’s untimely inclusion.
The Court reaches this conclusion for four reasons: (1) any prejudice or surprise to the Government
caused by Dr. Zand’s inclusion may be remedied by a scheduling modification; (2) the
Government had the opportunity to cure any alleged prejudice prior to filing the Motion; (3) a
modification of the Scheduling Order will avoid any threat of disrupting trial; and (4) there is no
evidence of Plaintiffs’ bad faith or willfulness related to this untimely disclosure.34
28 Pineda v. City & Cnty. of San Francisco, 280 F.R.D. 517, 520 (N.D. Cal. 2012).
29 Goodman v. Staples The Off. Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011) (quoting Fed.
R. Civ. P. 37 Advisory Committee Note (1993)).
30 Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 242 (D. Nev. 2017) (quoting Jackson v.
United Artists Theatre Cir., Inc., 278 F.R.D. 586 (D. Nev. 2011)).
31 Id. at 243.
32 See Yeti by Molly, 259 F.3d at 1106.
33 Silvagni, 320 F.R.D. at 243 (citations omitted) (quoting Jones v. Wal-Mart Stores, Inc., No.
2:15-cv-1454-LDG-GWF, 2016 WL 1248707, at *7 (D. Nev. Mar. 29, 2017)).
34 See Brodeur, 41 F.4th at 1192.
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First, any prejudice or surprise to the Government may be assuaged through an extension to the
expert witness discovery deadlines. In the Motion, the Government argues that it was “surprised
by Plaintiffs’ late designation and will be prejudiced. That prejudice cannot be easily cured. Not
only are the deadlines long past, but there is no way for the United States to go back in time,
knowing Dr. Zand’s proposed testimony, and make different litigation decisions.”35 The Court
disagrees. Although Dr. Zand’s inclusion violated both the Scheduling Order and Rule 37(c)(1),
this late designation does not pose an insurmountable obstacle to the Government that requires
preclusion, as opposed to an extension to the discovery deadlines. The Government appears to
concede as much in its Reply.36 In consequence, the Court finds that any potential prejudice to the
Government is best addressed through discovery deadline modifications.
Second, the Government had the ability to cure any prejudice caused by the Plaintiffs before
involving the Court in this dispute. At oral argument, both the Government and Plaintiffs admitted
that neither party had attempted to resolve this issue before the Government filed the Motion.37
The Court reiterates that in discovery disputes the parties should always strive to “‘work out
agreements that [would] reasonably permit them to respond to newly disclosed evidence and
defend the claims on the merits,’ rather than automatically resorting to motions for exclusion
sanctions.”38 The exclusion of a witness is an extreme measure that the Court does not take lightly.
Because the parties did not attempt to resolve this matter before bringing it to the Court’s attention,
and because any potential prejudice may be alleviated through the modification of the Scheduling
Order, preclusion is not warranted.
Third, trial has been set for October 2, 2023; the parties still have approximately nine months to
prepare for this event.39 Considering that it is likely this trial date will be modified by the parties
to afford the Government the sufficient time to respond to Dr. Zand’s rebuttal report, Dr. Zand’s
late inclusion does not disrupt trial and this consideration weighs against Dr. Zand’s preclusion.
Fourth and finally, the Court does not find any evidence of Plaintiffs’ bad faith or willfulness, nor
does the Government assert as much.40 The Court recognizes that “[a]bsent a showing of bad faith
or other misconduct, courts are leery of imposing the harsh sanction of exclusion absent a
significant possibility of prejudice due to the untimeliness of the disclosure.”41 Because Plaintiffs
do not appear to have acted in bad faith or to have engaged in other misconduct, and because there
is no “significant possibility of prejudice” if the Court allows the parties to modify the Scheduling
Order, this consideration also heavily weighs against Dr. Zand’s preclusion.
35 Dkt. 28 at 9.
36 Dkt. 32 at 6 (“[T]he Court should strike Dr. Ramin Zand from Plaintiffs’ expert witness list, or
in the alternative the Court should issue a new scheduling order that allows Defendant sufficient
time to find and retain a reciprocal expert in neuroimaging in response.”).
37 Dkt. 38.
38 Silvagni, 320 F.R.D. at 243 (citation omitted).
39 Dkt. 13.
40 Dkt. 28 at 10 n.1 (noting that the Government “does not take a position on whether Plaintiffs
acted in bad faith or willfully in failing to timely disclose Dr. Zand”).
41 Silvagni, 320 F.R.D. at 243.
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In conclusion, Plaintiffs’ untimely inclusion of Dr. Zand may be rendered harmless with a new
scheduling order that will allow the Government “sufficient time to find and retain a reciprocal
expert in neuroimaging in response.”42 Consequently, the Motion at Docket 28 is GRANTED in
part and DENIED in part.
As specified at oral argument, the Court directs the parties to meet and confer, and file a joint
status report with agreed-upon date extensions on or before March 22, 2023.43
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: March 20, 2023.
42 Dkt. 32 at 6.
43 Dkt. 38.
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