Zhai v. Central Nebraska Orthopedics & Sports Medicine, P.C.
4:16-cv-03049
D. Neb.Dec 22, 2017Background
- Zhai sued multiple medical defendants for malpractice, alleging delayed recognition/treatment of compartment syndrome caused nerve and muscle injuries.
- Court set an expert-disclosure deadline (April 17, 2017); Zhai timely disclosed six retained experts but did not disclose a retained neurologist.
- After depositions, Zhai sought leave to disclose an additional expert focused on EMG testing; court granted limited leave to disclose an expert "focused on EMG testing," warning the disclosure could be challenged if it did not rebut or properly supplement prior disclosures.
- On October 27, 2017 Zhai disclosed neurologist Daniel L. Menkes, M.D.; Menkes’s report opined extensively on causation beyond EMG interpretation.
- Defendants moved to exclude Menkes as untimely, beyond the court’s limited order, and neither proper rebuttal nor permissible supplementation under Fed. R. Civ. P. 26.
- Court found Menkes’s opinions exceeded the scope of the court’s permission, were not proper rebuttal or supplementation, and exclusion was neither substantially unjustified nor harmless; motion to exclude granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff may disclose an additional expert beyond previously disclosed experts | Menkes would rebut defendants and/or supplement prior disclosures by addressing EMG test interpretation | Menkes exceeds court’s limited leave and effectively fills gaps plaintiff left by not disclosing a neurologist earlier | Excluded: Menkes’s report goes beyond the court’s limited EMG-focused permission |
| Whether Menkes’s EMG-related opinions constitute proper rebuttal testimony | Menkes’s report rebuts or counters defendant experts and addresses EMG interpretations raised at deposition | Menkes’s opinions repeat or expand plaintiff’s case-in-chief rather than respond to new matters raised by defendants | Excluded as rebuttal: opinions do not address novel issues that could not have been anticipated |
| Whether Menkes’s opinions are permissible supplemental disclosures under Rule 26(e) | Disclosure supplements earlier expert reports by clarifying EMG interpretation and causation | Supplemental rule cannot be used to gap-fill or strengthen plaintiff’s case-in-chief; no prior disclosure required correction | Excluded as supplemental: no correction/clarification of prior reports justified the new opinions |
| Whether exclusion is an improper sanction (substantially justified or harmless) | Disclosure delay was justified or harmless after depositions | No substantial justification; disclosure would cause delay and prejudice; exclusion is within court’s discretion | Exclusion proper: not substantially justified or harmless; sanction warranted |
Key Cases Cited
- Sherman v. Winco Fireworks, 532 F.3d 709 (8th Cir. 2008) (untimely expert disclosure may be excluded under scheduling-order principles)
- Marmo v. Tyson Fresh Meats, 457 F.3d 748 (8th Cir. 2006) (rebuttal testimony must not be mere continuation of plaintiff’s case-in-chief)
- Wegener v. Johnson, 527 F.3d 687 (8th Cir. 2008) (district court has discretion to exclude untimely expert testimony unless substantially justified or harmless)
- ADT Sec. Servs., Inc. v. Swenson, 276 F.R.D. 278 (D. Minn. 2011) (rebuttal experts should address new arguments that could not have been anticipated)