Filed: Jan. 09, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1554 ANNETTE CAMPBELL, Administrator of the Estate of Loyd H. Campbell, Deceased, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:10-cv-00363-JRS-DWD) Submitted: December 16, 2011 Decided: January 9, 2012 Before DUNCAN, DAVIS, and DIAZ, Circuit Judges. Affirmed
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1554 ANNETTE CAMPBELL, Administrator of the Estate of Loyd H. Campbell, Deceased, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:10-cv-00363-JRS-DWD) Submitted: December 16, 2011 Decided: January 9, 2012 Before DUNCAN, DAVIS, and DIAZ, Circuit Judges. Affirmed b..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1554
ANNETTE CAMPBELL, Administrator of the Estate of Loyd H.
Campbell, Deceased,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:10-cv-00363-JRS-DWD)
Submitted: December 16, 2011 Decided: January 9, 2012
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brenda L. Page, Alan F. Duckworth, PAGE LAW FIRM, P.C.,
Richmond, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Jonathan H. Hambrick, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Annette Campbell filed a wrongful death action against
the United States of America pursuant to the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680 (2006), alleging that
medical staff at the Veterans Affairs Medical Center (“VA
Medical Center”) acted negligently while providing dialysis
treatment to her husband, Lyod Campbell, resulting in his death.
Campbell appeals the district court’s orders excluding her
expert witness, dismissing her complaint, and denying her motion
to alter or amend judgment. We have reviewed the record and
find no reversible error. Accordingly, we affirm.
We review the district court’s exclusion of a
plaintiff’s expert witness for an abuse of discretion. Carr v.
Deeds, 453 F.3d 593, 601 (4th Cir. 2006). Rule 26(a)(2) of the
Federal Rules of Civil Procedure imposes specific requirements
for the disclosure of expert testimony during the discovery
period. A plaintiff must disclose her expert by the date
provided by a court’s pretrial order. Fed. R. Civ. P.
26(a)(2)(C) (2010). In addition, an expert witness’s report
must contain:
(i) a complete statement of all opinions the witness
will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in
forming them; (iii) any exhibits that will be used to
summarize or support them; (iv) the witness's
qualifications, including a list of all publications
authored in the previous 10 years; (v) a list of all
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other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by
deposition; and (vi) a statement of the compensation
to be paid for the study and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). Thus, “the expert report should be
written in a manner that reflects the testimony the expert
witness is expected to give at trial.” Sharpe v. United States,
230 F.R.D. 452, 458 (E.D. Va. 2005).
Pursuant to Rule 37(c)(1), a party who fails to
properly designate an expert witness as required by Rule 26(a)
may not use the expert at trial, “unless the failure was
substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1).
The party facing sanctions carries the burden of showing that
the failure to comply with Rule 26(a) was either substantially
justified or harmless. Carr, 453 F.3d at 602. In determining
whether a party’s failure to properly designate an expert was
“substantially justified or harmless,” a court should balance:
(1) the surprise to the party against whom the evidence would be
offered; (2) the ability of that party to cure the surprise; (3)
the extent to which allowing the explanation would disrupt the
trial; (4) the importance of the evidence; and (5) the
nondisclosing party’s explanation for its failure to disclose
the evidence. S. States Rack & Fixture, Inc. v. Sherwin-
Williams Co.,
318 F.3d 592, 597 (4th Cir. 2003). The district
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court has “broad discretion to determine whether a nondisclosure
of evidence is substantially justified or harmless.” Id.
Campbell filed her expert designation, identifying Dr.
Moffatt as her proposed expert, on December 7, 2010, five days
after the deadline set forth in the district court’s scheduling
order. The district court found Campbell’s expert report
deficient, as Dr. Moffatt failed to delineate the applicable
standard of care, discuss the issue of causation, explain the
factual basis for his conclusions, or reveal the records that he
reviewed, as required by Rule 26(a). The district court also
held that Campbell failed to show her failure was “substantially
justified or harmless,” thereby excluding her expert witness
pursuant to Rule 37(c)(1). Having excluded Campbell’s only
proposed expert witness, the district court granted the
Government’s motion for summary judgment, and denied Campbell’s
subsequent motion to alter or amend its judgment.
On appeal, Campbell argues that the district court
erred by failing to consider less drastic sanctions, such as
sanctioning her attorney. However, Campbell’s argument is
misplaced; as we have previously held, and as the language of
Rule 37(c)(1) evidences, the Federal Rules impose an “automatic
sanction” of exclusion of a party’s expert witness for failure
to adhere to the expert witness requirements set forth in Rule
26(a). See Southern States, 318 F.3d at 592 n.2 (“The Rule
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37(c) advisory committee notes emphasize that the automatic
sanction of exclusion provides a strong inducement for
disclosure of material that the disclosing party would expect to
use as evidence.”) (internal quotation marks and citation
omitted). Therefore, the district court did not abuse its
discretion in failing to consider less drastic sanctions than
exclusion of Campbell’s expert witness, as Rule 37(c) requires
exclusion unless the party establishes substantial justification
or harmlessness.
Campbell next asserts that the district court
erroneously applied the factors set forth in Southern States to
determine whether Campbell’s failure was “substantially
justified or harmless.” In an attempt to justify the deficiency
of her December 7 report, Campbell argues that the Government’s
“hide the ball tactics” prevented her from preparing an adequate
expert designation. With respect to the surprise to the
defendant, Campbell asserts that, although Dr. Moffatt’s
December 7 report did not address the standard of care or the
issue of causation, the Government could “infer” these
requirements from his report. Further, Campbell argues, any
surprise suffered by the Government was cured by Campbell’s
January 14, 2011 supplement, which included a new report from
Dr. Moffatt and fifty-seven pages of exhibits.
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As the district court correctly found, however,
Campbell’s arguments do not establish that her failure to
designate an expert witness was “substantially justified or
harmless.” Although Campbell correctly notes the importance of
her expert witness, as her medical malpractice case hinged upon
his testimony, the other Southern States factors weigh against
Campbell. The surprise suffered by the Government due to the
deficiency of Campbell’s December 7 report was great; pursuant
to Rule 26(b)(4)(A), the Government could not depose Dr. Moffatt
until Campbell provided an adequate expert report. At the time
of the motion in limine hearing, trial was scheduled to begin in
less than thirty days, and deposition of Campbell’s expert
witness had not yet occurred. As this court has previously
emphasized, “A party that fails to provide [expert] disclosures
unfairly inhibits its opponent's ability to properly prepare,
unnecessarily prolongs litigation, and undermines the district
court's management of the case.” Saudi v. Northrop Grumman
Corp., 427 F.3d 271, 278-79 (4th Cir. 2005) (internal quotation
marks and citation omitted). Further, although Campbell asserts
that she was unable to prepare an adequate expert designation
due to the Government’s refusal to provide meaningful discovery
responses, counsel for Campbell candidly admitted to the
district court that her failure to properly designate an expert
6
witness in compliance with Rule 26(a) was her own mistake, not
attributable to the Government’s wrongdoing.
Moreover, Campbell’s January 14 supplement did not
serve to “cure” the deficiencies of her original report.
Although Campbell did not obtain court leave to file her January
14, 2011 supplement, more than a month after the December 2,
2010 deadline, Campbell contends that her supplement was
properly before the court because she was under a “continuing
duty” pursuant to Fed. R. Civ. P. 26(e)(1) to supplement her
December 7 report. However, Campbell miscomprehends the Federal
Rules; Rule 26(e) envisions supplementation “to add additional
or corrective information.” Sharpe, 230 F.R.D. at 462. “To
construe [Rule 26(e)] supplementation to apply whenever a party
wants to bolster or submit additional expert opinions would
[wreak] havoc in docket control and amount to unlimited expert
opinion preparation.”
Id. Because Campbell’s January 14
supplement did not simply add or correct information, but rather
attempted to recast Dr. Moffatt’s initial opinions so as to
comply with the requirements of Rule 26(a), it does not fall
within the bounds of Rule 26(e)(1). Thus, Campbell failed to
establish that her failure to designate an expert witness was
“substantially justified or harmless,” as required by Rule
37(C)(1). Accordingly, the district court did not abuse its
discretion in excluding Campbell’s expert witness.
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The district court’s grant of summary judgment is
reviewed de novo. Jennings v. Univ. of North Carolina, 482 F.3d
686, 694 (4th Cir. 2007) (en banc). Summary judgment shall be
granted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “Where the record taken
as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine issue for trial.”
Scott v. Harris,
550 U.S. 372, 380 (2007) (internal quotation
marks and citation omitted).
Virginia law, which governs Campbell’s claim, ∗ requires
a plaintiff suing for medical malpractice to demonstrate: (1)
the applicable standard of care; (2) breach of that standard of
care; and (3) that the breach proximately caused the plaintiff’s
injuries. Parker v. United States, 475 F. Supp. 2d 594, 598 (E.D.
Va. 2007). Absent the rare case in which the alleged negligent
act or omission is clearly within the common knowledge of
laymen, “expert testimony is ordinarily necessary” to establish
these elements.
Id. (internal quotation marks and citation
omitted). Without an expert witness, Campbell was unable to
∗
As the alleged negligence occurred in Virginia, Campbell’s
lawsuit is governed by Virginia law. See 18 U.S.C. § 1346(b)
(indicating that FTCA claims are governed by the “law of the
place where the act or omission occurred”).
8
establish a prima facie case of medical malpractice. As there
was no genuine dispute as to any material fact, the district
court did not err in granting the Government summary judgment.
Finally, we review the denial of a Fed. R. Civ. P. 59
motion to alter or amend a judgment for abuse of discretion.
Sloas v. CSX Transp., Inc., 616 F.3d 380, 388 (4th Cir. 2010).
The district court “necessarily abuses its discretion when it
makes an error of law.”
Id. (citing Wolfe v. Johnson,
565 F.3d
140, 160 (4th Cir. 2009)). “There are three grounds for
amending an earlier judgment: (1) to accommodate an intervening
change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.” Pacific Ins. Co. v. Am. Nat’l Fire
Ins. Co.,
148 F.3d 396, 403 (4th Cir. 1998) (citation omitted).
On appeal, Campbell fails to highlight a change in controlling
law, present new evidence, or identify a clear error of law.
Accordingly, we conclude that the district court did not abuse
its discretion in denying Campbell’s motion to alter or amend
judgment.
We affirm the judgment of the district court. We
dispense with oral argument because the facts and legal
9
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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