Opinion
Case No. 2:04-cv-0735.
January 31, 2008
ORDER
On October 4, 2007, defendant Terminix International Company, LLC, filed a "Motion to Strike Opinion Testimony of Peter Bernad, M.D. Pursuant to Rule 37(c)(1)" (#111). Responsive and reply memoranda have been filed. For the following reasons, the motion will be denied.
I.
Dr. Bernad is an expert witness who has been identified by plaintiffs Bruce and Mindy Kerner pursuant to Fed.R.Civ.P. 26(a)(2). In connection with that identification, the Kerners provided a report to Terminix in 2005. The parties engaged in significant dialogue about the content of the report after it was produced. They contacted the Court concerning the completeness of the production of the documents reviewed by or relied upon by Dr. Bernad in preparing his opinion. That issue also surfaced with respect to other expert witnesses' reports. As presented to the Court, the issue was not necessarily the substantive question of whether all documents reviewed by and relied upon by the parties' expert witnesses had been produced, but whether the Kerners adequately represented that they had.
The Court held several discovery conferences in the fall of 2006 to address that issue. Its orders contemplated that all expert documents which were discussed at those conferences, which included documents relating to Dr. Bernad's opinion, would be produced, along with a verification that all such documents were produced, by December 1, 2006. According to the parties' submissions, the Kerners actually produced additional documents after that date. However, document production ended on January 5, 2007. On that same date, Terminix received a verification (albeit from someone acting on Dr. Bernad's behalf) that his entire file had been produced.
At some point during their dialogue about Dr. Bernad's report, Terminix also requested a complete listing of the cases in which Dr. Bernad had given testimony as required by Rule 26(a)(2). That rule requires, among other things, that an expert specially retained for purposes of litigation provide a "listing of any other cases in which the witnesses testified as an expert at trial or by deposition within the preceding four years." On several occasions, Terminix requested that the case list be supplemented. A supplemental case list was provided on June 26, 2007. However, Terminix contends that the case list did not provide enough information for Terminix to locate many of the cases and the list also omitted mention of several cases in which Dr. Bernad had served as an expert.
Finally, Dr. Bernad's report (which expresses opinions concerning the source of certain symptoms experienced by Dr. Kerner) is based at least in part upon the process of differential diagnosis. That process involves excluding other possible causes for the same symptoms. Terminix asserts that there is an insufficient level of analysis in the report. As a result, Terminix has asked the Court to strike Dr. Bernad's expert report because (1) Terminix is still not certain it has all the documents he reviewed or relied on; (2) Terminix has not received an accurate list of cases in which Dr. Bernad previously served as an expert witness; and (3) his report is too conclusory.
II.
The Court notes first that the objection to Dr. Bernad's report as too conclusory is more akin to an attack on the substance of his report rather than an assertion that he failed to comply with the procedural requirements set forth in Rule 26(a)(2). Further, the Court notes that Terminix has also filed a motion in limine asking the Court to exclude Dr. Bernad's report based on its substantive content. For those reasons, that ground for requesting that the report be stricken will not be addressed in this order.
III.
Terminix has also asked that the report be stricken because it is not confident it has received all of the documents upon which Dr. Bernad relied or which he reviewed in preparation of his report. The Court conducted exhaustive discussions with the parties concerning exactly this matter. Ultimately, Terminix was provided with a certification that it had the entirety of Dr. Bernad's file. That certification was provided nine months prior to the filing of its motion.
Terminix's primary objection to the certification is that it was unaware of the position held by the person who signed the certification. The Kerners explained in their responsive memorandum that the person signing the certification is Dr. Bernad's former office manager. The Kerners also note that, had they been asked that question at any time before the motion was filed, they would have been happy to provide that information to Terminix.
In its reply memorandum, Terminix characterizes the certification as "evasive" and describes the person who signed it as a "purported office administrator. . . ." There is nothing in the record to suggest, however, that the person who signed the certification was not an office administrator. Further, there is nothing in the record to contradict the Kerners' assertion that it has provided similar certifications for other records.
Here, Terminix has had the opportunity to depose Dr. Bernad. It had nine months from the receipt of the certification to question the completeness of the certification or the knowledge held by the person who made it. Having done neither, and in the absence of any evidence that there are any additional documents reviewed by or relied upon by Dr. Bernad which have not been produced, the Court concludes that this is essentially a non-issue. It certainly provides no basis for striking Dr. Bernad's entire report.
IV.
Terminix's most significant argument in support of its motion is that it did not receive a proper listing from Dr. Bernad concerning the cases in which he has served as an expert witness. Because Rule 26(a)(2) requires an expert witness to list only those cases in which he or she has testified, either at trial or at deposition, during the four years preceding the issuance of the report, the Court's analysis will focus on that time frame.
In the memorandum supporting Terminix's motion, it identified six cases in which Dr. Bernad gave expert testimony which were not contained on his disclosure list. The last two cases on that list date from 1994 and 1995. These are not within the four-year period prescribed in Rule 26(a)(2), and Dr. Bernad was under no obligation to disclose this information.
One of the other four cases, Young v. Memorial Hermann Hospital Systems, was apparently decided in 2006. The Kerners explained that Dr. Bernad did not originally disclose his testimony in this case because, at the time of his original report, he had not given that testimony. It appears that this case was included on his supplemental case list. As a result, there are really only three cases which Terminix has identified and which Dr. Bernad did not disclose in his report. Dr. Bernad has described this failure as "inadvertent".
Terminix takes issue with the notion that this failure to disclose was inadvertent. It cites to a portion of Dr. Bernad's testimony concerning his qualification as an expert in the District of Columbia Superior Court as evidence that he keeps no records concerning when and where he has testified as an expert witness. That testimony was given on February 13, 2001 in a different case. In the Court's view, that deposition excerpt does not support the broad conclusion reached by Terminix.
Dr. Bernad was asked specifically whether he kept records of the times when he was qualified by a court to testify as an expert. His precise testimony was that he does not keep such records because he was not sure of the benefit to his consulting business of having records of every time a court permitted him to testify as an expert witness. That is a far cry from a concession that he keeps no records concerning the times when he is retained to testify as an expert, or the times that he actually gives testimony. Thus, in terms of a factual record, the Court is presented with a situation where an expert witness concedely failed to disclose several cases in which he had testified within the relevant four-year period. However, the record also indicates that Terminix is aware of these cases, the cases are published, and Terminix was presumably able to obtain Dr. Bernad's testimony.
Terminix argues that once a non-disclosure has occurred, it is the party retaining the expert witness that has the burden of demonstrating that any such non-disclosure is either substantially justified or harmless. Assuming that to be the case, the Court concludes that any such non-disclosure in this case was harmless. The only prejudice which Terminix has identified is the cost it expended in investigating whether the case list was complete and accurate. It has not, however, asked for sanctions in the form of an award of such costs. Its concluding argument appears to be that, even if Dr. Bernad has now represented that he has supplied a complete list and even if its own research has not turned up any additional cases, the Court should be reluctant to believe Dr. Bernad in light of his prior testimony, should conclude that he is still withholding information about additional cases, and should strike his report because the absence of that information is prejudicial. The Court cannot accept that reasoning. Consequently, the Court concludes that the failure of Dr. Bernad to make a full and complete disclosure of cases in which he has testified within the relevant four-year period is not a basis for striking his report.
V.
For the foregoing reasons, Terminix's motion to strike (#111) is denied.
Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4