Angela Wegener (Wegener), guardian and next friend of her son Noah Wegener (Noah), appeals from the judgment in a medical malpractice case against Dr. Dean E. Johnson. Wegener argues that the district court 1 erred by excluding supplemental testimony from one of Wegener’s experts and by directing the jury to reread existing instructions instead of giving a supplemental instruction. We affirm.
I. Background
Following approximately a month of severe abdominal pain and vomiting, Wegener, who was twenty-eight-weeks pregnant, was admitted to Columbus Community Hospital (Columbus) in an incoherent state on June 3,1997. At the time of her admission, she was dehydrated and many of her blood test values were elevated. Most notably, her calcium was at a life-threatening level. Two days later, Wegener was transferred to Methodist Hospital in Omaha (Methodist), where she delivered Noah prematurely and her gallbladder was removed. Noah developed cerebral palsy.
On July 28, 2004, Wegener filed suit on Noah’s behalf against Johnson, her obstetrician, claiming that he failed to meet the applicable standard of care, which resulted in Nоah’s cerebral palsy. In her case-in-chief, Wegener advanced the theory that her health conditions that led to Noah’s premature birth were primarily caused by *690 gallbladder disease and resulting pan-creatitis. Johnson’s defense offered the alternative theory that Wegener’s health conditions were primarily caused by her ingestion of an off-label dоsage of over-the-counter calcium carbonate antacids.
The trial was delayed several times. The district court’s progression order was filed on January 24, 2005, and initially scheduled the trial for November 14, 2005. The district court extended the deadline to disclose initial expert witness reports on Wegener’s motion and granted Wegener another extension to сomplete the reports. On the parties’ joint motion, the progression order was amended to accommodate the extended discovery period and the trial was rescheduled for February 6, 2006. The trial was rescheduled three more times, twice at the behest of the parties and once of the district court’s accord. Trial began on October 3, 2006.
Thе jury returned a verdict in Johnson’s favor, and the district court entered judgment on the verdict, rejecting Wegener’s motion for a new trial.
II. Analysis
A. Exclusion of Supplemental Expert Testimony
On September 15, 2006, two-and-a-half weeks before trial was scheduled to begin, Wegener attempted to supplement her expert witness disclosures with additional testimony from her previously disclosed expert witness Dr. Bruce Halbridge that interpreted ultrasounds taken at both Columbus and Methodist hospitals and concluded that they showed gallstones in Wegener’s gallbladder. Johnson moved to exclude the testimony as untimely filed. The district court ruled that Wegener could not present the testimony in her case-in-chief, but postponed ruling with respect to its use for rebuttal until after Johnson had presented his defense. The district court ultimately rejected Wegener’s offer of proof for purposes of rebuttal.
Wegener offers two arguments in support of her contention that the district court erred by excluding Dr. Hal-bridge’s supplemental testimony: first, that the testimony was admissible as impeachment or rebuttal evidence; and second, that exclusion was not the appropriate remedy for violation of the applicable discovery rules. We address each of these arguments in turn, reviewing the district court’s exclusion of the evidence for a clear and prejudicial abuse of discretion. We will reverse only if the district court’s ruling was based on “an erroneous view of the law or a clearly erroneous assessment of the evidence” and affirmance would result in “fundamental unfairness.”
Davis v. U.S. Bancorp,
1. Timeliness of Supplemental Expert Disclosure
The parties do not dispute that Wegener’s disclosure did not comply with the deadline imposed by Federal Rule of Civil Procedure 26(e) for disclosing supplemental expert testimony to be used in her case-in-chief. Wegener contends, however, that the district court erred by failing to admit the testimony as impeachment or rеbuttal evidence. We hold that, even if it were offered in impeachment or rebuttal, Wegener was required to disclose Dr. Hal-bridge’s supplemental testimony under Rule 26 and she failed to do so in a timely manner.
a. Required Disclosure of Expert Testimony Used to Contradict
Rule 26 does not require the disclosure of evidence used solely for impeachment purposes.
See
Fed.R.Civ.P. 37(c) advisory committee’s note (1993).
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The district court did not err by concluding that Rule 26(a)(2) required disclosure of Dr. Halbridge’s supplemental testimony, however, because it is not impeachment evidence of the kind exempted from disclosure. Impeachment is “an attack on the credibility of a witness.”
Sterkel v. Fruehauf Corp.,
b. Timeliness of Expert Disclosure for Rebuttal Purposes
The district court alsо did not err in declining to admit Dr. Halbridge’s supplemental testimony as rebuttal evidence. Wegener contends that Dr. Halbridge’s supplemental testimony was admissible to rebut Johnson’s experts’ assertion that Wegener’s hospital records as a whole indicate that no gallstones were present in Wegener’s gallbladder. Wegener also argues, more specifically, thаt the supplemental testimony was admissible to rebut the supplemental report of Johnson’s expert Dr. West, which was disclosed on September 6, 2006. We disagree, for Dr. Halbridge’s supplemental testimony was untimely disclosed and was not offered in true rebuttal.
The district court’s progression order of January 24, 2005, set forth the deadlines for, inter alia, depositions and the disclosure of initial and rebuttal expert witness reports. See Fed.R.Civ.P. 16(b)(3)(B)(i), 26(a)(2)(C) (district court may set time limits for disclosure of initial and rebuttal expert witness testimony). Although the district court changed the dates for the initial expert witness reports and depositions on Wegener’s motion and the trial was rescheduled four times, the January 24, 2005, order set the deadline for rebuttal expert reports to.be “fifteen (15) days рrior to the date set for the completion of depositions.” Final Progression Order at 2 (original emphasis omitted). The final deposition deadline set by order of the district court was September 1, 2006. Therefore, Wegener’s September 15, 2006, disclosure of Dr. Halbridge’s supplemental testimony was untimely as a rebuttal expert disclosure.
Wegener’s argument that Dr. Hal-bridge’s supplemental testimony rebuts the supplemental report of Johnson’s expert Dr. West does not excuse its untimeliness. Dr. Halbridge’s supplemental testimony did not rebut any new information disclosed in Dr. West’s supplemental report. Dr. West stated in both his initial and supplemental reports that neither Wegener’s medical records as a whole nor the Columbus hospital ultrasounds providеd evidence of gallbladder disease. Weg-ener argues that Dr. West’s initial opinion relied exclusively on the radiologist’s report interpreting the ultrasound and that because Johnson’s counsel had subpoenaed Wegener’s ultrasound records in the time between Dr. West’s initial report and his *692 supplemental report, the opinion contained in his supplemental report was based on the ultrasound film itself and was, therefore, new. Our review of the record does not reveal that Dr. West’s supplemental report was, in fact, based on the ultrasound films. The supplemental report does not list the films in the documents reviewed, nor does the report specifically refer to them at any point. As a basis for comparison, the list of documents reviewed does include microscopic slides of Wegener’s gallbladder, Dr. West’s independent reading of which is discussed in his report. Furthermore, Dr. West testified at trial that his opinion was not based on the ultrasound films, but on the radiologists’ reports. We therefore conclude that Weg-ener’s disclosure of Dr. Halbridge’s supplemental testimony was untimely and that it was not offered solely to rebut any new information contained in Johnson’s supplemental disclosures.
2. Remedy for Untimely Disclosure of Expert Testimony
Wegener argues that the district court should have employed a less-restrictive remedy, such as a continuance, instead of excluding her untimely disclosed evidence. When a party fails to provide information or identify a witness in compliance with Rule 26(a) or (e), the district court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case. Fed.R.Civ.P. 37(c)(1);
Trost v. Trek Bicycle Corp.,
We note, however, that the district court’s discretion narrows as the severity of the sanction or remedy it elects increases.
See Heartland Bank v. Heartland Home Fin., Inc.,
Wegener argues that her disclosure was untimely because Dr. Halbridge’s supplemental report responded to Dr. West’s supplemental report, which her counsel suspected was bаsed on his review of ul
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trasounds that the defense had subpoenaed from the hospitals. Because we have concluded that Dr. Halbridge’s supplemental testimony was not true rebuttal evidence, we hold that this argument does not substantially justify its untimely disclosure. Furthermore, Dr. Halbridge’s supplemental testimony was based on hospital records that were easily discoverablе, patently relevant to Wegener’s case, and which Wegener’s counsel knew the defense had subpoenaed five months prior to the disclosure deadline. Wegener’s failure to exercise due diligence with respect to her expert’s review of relevant medical records also does not substantially justify her untimely disclosure.
See Trost,
The untimeliness of Wegener’s disclosure also was not harmless with respect to Johnson’s preparation for trial and the district court’s trial schedule. See id. at 1008-09. Wegener contends that her untimely disclosure did not prejudice Johnson because his counsel had subpoenaed the ultrasounds months before and had already disclosed experts who were capable of reading ultrasounds. Though Johnsоn may not have been surprised by the potential for the ultrasounds to be interpreted in Wegener’s favor, he still may have been surprised by the untimely disclosure of the opinion as evidence and of Dr. Halbridge as the opinion’s source. Counsel’s preparation for the cross examination or possible rebuttal of an expert witness on a matter of expertise can be extensive. Dr. Halbridge’s qualifications for reading upper-abdominal ultrasounds were not readily apparent, and it may have been in the interest of justice to allow Johnson to depose Dr. Halbridge to explore his qualifications and the basis for his interpretation of the ultrasound. The district court could well have concluded that the two-and-a-hаlf weeks remaining before trial would not have provided sufficient time to prepare a rebuttal and cross examination involving expert testimony. Thus, had the district court admitted Dr. Halbridge’s supplemental testimony, it might have been necessary to grant Johnson a continuance and further disrupt the district court’s trial calendar.
Finally, Dr. Halbridge’s supplemental testimony, though relеvant, was not that important to Wegener’s case because it was offered to prove a point in support of which a substantial amount of other evidence was presented to the jury.
See, e.g., Wood v. Valley Forge Life Ins. Co.,
We conclude that the district court did not abuse its discretion in excluding the proposed testimony. In any event, any error in excluding it would have been harmless for the reasons detailed above with respect to the testimony’s relative lack of probative value. Therefore, we affirm the district court’s exclusion of Dr. Halbridge’s supplemental testimony.
B. Supplemental Jury Instructions
During deliberations, the jury requested that the district court clarify its instructions, asking, “Do we have to come to an unanimous decision or simple majority of one or more of the 5 claims set forth under instruction # 5 Part A. in order to move on to Part B #2.” Part A of Instruction No. 5 discussed five ways in which Wegener claimed Johnson was negligent. Part B discussed Wegener’s burden of proof and stated, in pertinent part, that Wegener must prove the following by a preponderance of the evidence:
1. That Dr. Johnson was negligent as a professional in one or more of the ways set forth in section A of this Instruction;
2. That Dr. Johnson’s professional negligence was the proximate cause of injury to Noah Wegener;
3. That Noah Wegener sustained damages; and
4. The nature and extent of those damages.
Part C of Instruction No. 5 stated, “If Angela Wegener has not met this burden of proof, then your verdict must be for Dr. Johnson. On the other hand, if Angela Wegener has met this burden of proof, then your verdict must be for Angela Weg-ener.” Instruction No. 11 discussed, inter alia, the requirement that “[t]he verdict must be unanimous.”
At a telephone conference with counsel for both parties, the district court proposed onе of the following two responses: “Please reread Instructions No. 5 and No. 11,” or “It is your verdict that must be unanimous.” Counsel for Johnson requested that the district court give the former instruction; counsel for Wegener requested the latter. The district court directed the jury to reread Instructions No. 5 and 11.
Wegener argues that the district court erred by directing the jury to reread existing Instructions Nоs. 5 and 11 instead of giving a supplemental instruction. We review for abuse of discretion a district court’s decision with respect to the amplification or supplementation of jury instructions.
Jackson v. City of Little Rock,
It is the district court’s duty to instruct the jury on the applicable law.
Thomlison v. City of Omaha,
Wegener does not dispute that the instructions provided to the jury were accu
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rate. Instead, she argues that the district court abused its discretion by directing the jury to reread existing Instructions Nos. 5 and 11 because the instructions were inadequate to guide the jury to a lawful determination of the issue. We disagree. Instructions Nos. 5 and 11 were based on model instructions from the Nebraska and Eighth Circuit courts, respectively. The district court’s response focused the jury on the pertinent instructions and askеd it to read them together. The jury did not express any difficulty after receiving the district court’s direction and did not request further clarification of the issue before returning a verdict for Johnson.
See Jackson,
The judgment is affirmed.
Notes
. The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska.