Brown v. Robert Packer Hospital

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RUSS BROWN, No. 4:19-CV-02001

Plaintiff, (Chief Judge Brann)

v.

ROBERT PACKER HOSPITAL and

DOUGLAS TROSTLE, MD,

Defendants.

MEMORANDUM OPINION

APRIL 18, 2022

Certain disputes between competing litigants do not necessitate judicial

resolution—at least, they shouldn’t. But, alas, far too often lawyers come

clambering into Court seeking redress for petty grievances and perceived

injustices. Undoubtedly, the offender’s conduct is “egregious” and “in bad faith,”

demonstrating “disrespect for the court” and always “irreparably prejudicing” the

defendant. Hyperbole aside, these frustrations (although often genuine and

understandable) rarely warrant judicial intervention. This is no exception.

Here, Plaintiff Russ Brown asks the Court to exclude the report prepared by

the Defendants’ expert witness as a sanction for violating a Court-ordered

discovery deadline. But the supposed deadline did not exist, and, even if it did,

Brown has not been prejudiced in any meaningful way. Therefore, Brown’s motion

is denied.

I. BACKGROUND

In November 2017, Brown went to Robert Packer Hospital for surgery to

remove his gallbladder.1 His primary surgeon was Defendant Douglas Trostle,

MD.2 Following the operation, Brown experienced severe abdominal pain and

other medical complications, necessitating two additional surgeries—the first,

performed by Dr. Trostle and his colleague Robert Fanelli, MD; the second, which

allegedly addressed the underlying causes of Brown’s post-operation issues,

performed by a separate surgeon at the Hospital.3

Brown initiated this suit in November 2019, filing the one-count Complaint

that alleges negligence by both Dr. Trostle and the Hospital.4 This Court issued a

Case Management Order on June 2, 2020, which followed the standard case

management track.5 Relevant here, this initial Case Management Order set

deadlines for fact discovery (March 1, 2021) and dispositive motions (April 1,

2021), as well as the following deadlines for expert discovery:

 May 3, 2021 – Plaintiff’s expert reports due

 June 3, 2021 – Defendant’s expert reports due

1 Doc. 1 ¶ 12.

2 Id. ¶ 13.

3 Id. ¶¶ 22–63.

4 Id. ¶¶ 66–70. The Complaint initially alleged recklessness by Dr. Trostle and the Hospital as

well as several other medical officials at the Hospital; however, the parties agreed by

stipulation to strike the allegations for recklessness and remove the other individual defendants.

Doc. 9; Doc. 10.

 June 17, 2021 – Supplemental and rebuttal expert reports due

 July 15, 2021 – Conclusion of expert discovery6

Discovery issues arose almost immediately. In August 2020, Brown filed a

motion to compel the Defendants to respond to Brown’s first requests for

production.7 Brown initially served these requests on March 22, 2020, but several

months passed without a response.8 Indeed, the parties corresponded and agreed to

extend the production deadline, but as that later deadline came and went, the

Defendants still had not responded.9 In October 2020, the Court granted Brown’s

motion and ordered the Defendants to respond.10

But still, the discovery issues continued. In February 2021, the Defendants

requested an extension of the case management deadlines.11 The Court granted this

extension over Brown’s objection, setting the following new deadlines: (1) June 1,

2021 – discovery deadline; and (2) July 1, 2021 – dispositive motions deadline.12

The Court also explained that “[a]ll expert report deadlines are CANCELLED and

will be rescheduled, if necessary, upon resolution of any filed dispositive

motion.”13

6 Id. ¶¶ 3–7, 10.

7 Doc. 22.

8 Doc. 25 (Order Granting Brown’s Motion to Compel) at 2–3 (citing Doc. 22, Ex. 4; Doc. 23 at

2).

9 Id.

10 Id.

11 Doc. 38.

12 Doc. 40 ¶¶ 1–2; see also Doc. 39 (Brown’s Opp. to Defendants’ Mot. to Extend).

In 2021, the Court extended the case management deadlines two additional

times. First, in April, following Brown’s second motion to extend the deadlines

(this time, unopposed), the Court delayed the discovery and dispositive motions

deadlines an additional month—to July 31 and August 30, respectively.14 And in

September, the Court granted the parties’ joint motion to extend the case

management deadlines, delaying the conclusion of discovery until September 30,

2021, and dispositive motions until October 31, 2021.15

Despite this Court’s considerable accommodations, the discovery challenges

persisted. Although the Court had not reimposed any deadlines for expert

discovery, the parties seemingly believed that the September 30, 2021, fact

discovery deadline applied to expert witnesses as well.16 In September 2021,

Brown identified his medical expert, Dr. Fanelli, who sat for a deposition on

September 24, 2021.17 The Defendants asked for a “one-week extension” of the

supposed deadline until October 1, 2021, to respond to Brown’s expert discovery,

and counsel for Brown responded, “For you, of course.”18 This October 1

“extension” passed, but the Defendants still had not identified their expert or

produced the corresponding expert report. The Defendants requested an additional

14 Doc. 51.

15 Doc. 60.

16 See Doc. 66, Ex. E (Sept. 23, 2021 R. Pugh & T. Kolman Emails) at 2 (Defendants requesting

“a 1 week extension until 10/1/21 to respond to your expert discovery in light of the [expert]

deposition happening tomorrow”).

17 Doc. 66 at 2.

extension on October 2, 2021, to which Brown’s counsel apparently did not

respond.19 Finally, on October 25, 2021, the Defendants produced their expert

report.20 Recognizing the delay in producing this report, Defense counsel informed

his counterpart of his clients’ willingness to grant Brown an “extension of time” to

“depose [the] defense expert.”21

On November 10, 2021, Brown filed a motion to strike the Defendants’

expert report as untimely.22 The parties have, in a fashion, fully briefed the motion,

and, as such, it is now ripe for disposition.23

19 Doc. 66, Ex. F (Oct. 2, 2021 R. Pugh Email).

20 Doc. 66 at 2.

21 Doc. 66, Ex. G (Nov. 17, 2021 R. Pugh Email).

22 Doc. 61.

23 It must be said: the parties thoroughly buggered up the briefing for this motion. Consistent

with the Federal Rules of Civil Procedure, the Local Rules of this District detail the procedure

for briefing motions before the Court: (1) “[w]ithin fourteen (14) days after the filing of any

motion, the party filing the motion shall file a brief in support of the motion”; (2) “[a]ny party

opposing any motion, other than a motion for summary judgment, shall file a brief in

opposition within fourteen (14) days after service of the movant’s brief”; (3) “[a] brief in reply

to matters argued in a brief in opposition may be filed by the moving party within fourteen

(14) days after service of the brief in opposition”; and (4) “[n]o further briefs may be filed

without leave of court.” United States District Court for the Middle District of Pennsylvania

Rules of Court 7.5–7.7. Although the parties initially followed this standard procedure—

Brown filed a brief in support of his motion to exclude the Defendants’ expert report five days

after filing the motion, Doc. 62, and the Defendants filed their brief in opposition four days

after that, Doc. 66—things quickly went off the rails.

Instead of filing the customary brief in reply, Brown filed a “Motion in Support of His Sur

Reply to Defendants’ Response to Plaintiff’s Motion to Strike Defendants’ Expert Report.”

Doc. 68. This is confusing on several levels. First, there is no reason to present this filing as an

independent motion—it is filed in support of an existing motion on the docket. Second, this is

not, and cannot, be “in [s]upport of [Brown’s] Sur Reply”—no reply had been filed and, in any

event, given that Brown is the moving party, the sur-reply for this motion would be filed by

the Defendants. Third, this filing contained no analysis or argumentation; instead, Brown

merely attached an exhibit purportedly relevant to the motion while noting that he “relies on

his Memorandum of Law in support [i.e., Doc. 62], which is incorporated herein as if set forth

II. ANALYSIS

Brown argues that the report prepared by the Defendant’s expert witness

should be excluded because (1) the Defendants’ failed to identify this expert or

produce his report before the September 30, 2021, deadline for fact discovery, and

(2) this delay significantly—indeed, “irreparably”—prejudiced Brown because as

“[d]iscovery is over,” Brown “cannot now depose [the] Defendants’ [e]xpert

pursuant to Fed. R. Civ. P. 26(b)(4)(A),” and “[n]either can he produce a rebuttal

to [the] [e]xpert [r]eport.”24 But Brown is misguided on both fronts.

First, the Defendants’ production of the expert report was timely because, as

the Defendants note, “[t]here is no expert report deadline in place.”25 As discussed,

the initial Case Management Order set separate deadlines for fact discovery,

dispositive motions, and expert discovery.26 But in February 2021, the Court

granted the Defendants’ request to extend the case management deadlines and, in

Not to be outdone, the Defendants then filed two separate “Responses” to Brown’s motion to

strike. See Doc. 69 (Supplemental Response); Doc. 76 (Second Supplemental Response).

These responses, which address legal arguments Brown made in his initial brief in support of

the motion but that the Defendants failed to confront in their opposition, are properly

understood as sur-replies. But, as noted in Local Rule 7.7, following the moving party’s reply,

“[n]o further briefs may be filed without leave of court.” Here, the Defendants never sought

leave of this Court to file their initial “response,” to say nothing of the “supplemental

response.” That simply isn’t done.

The Court suggests that counsel for both parties reacquaint themselves with the Federal Rules

of Civil Procedure and the Local Rules of this District. Hopefully, after doing so, the parties

can avoid making a dog’s breakfast of future motions in this case.

24 Doc. 62 at 6–7.

25 Doc. 66 at 3.

the Order announcing this ruling, provided new deadlines for only fact discovery

and dispositive motions.27 The Court explicitly refrained from setting new

deadlines for expert discovery: “[a]ll expert report deadlines are CANCELLED

and will be rescheduled, if necessary, upon resolution of any filed dispositive

motion.”28 Although the Court further extended the deadlines for fact discovery

and dispositive motions on two subsequent occasions, it never rescheduled expert

report deadlines.29 Accordingly, the September 30, 2021, discovery deadline

applied only to fact discovery, and the Defendants’ failure to produce expert

witness materials by this date does not constitute a violation of this Court’s

discovery orders.

Second, even if the Defendants’ expert witness disclosure and production

were untimely, striking the expert report would nevertheless be inappropriate

because Brown has not established that he has been improperly and incurably

prejudiced. Under Federal Rules of Civil Procedure 26 and 37, a party that fails to

disclose an expert witness or expert report “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.”30 In determining whether to

27 Doc. 40 ¶¶ 1–2.

28 Id. ¶ 3.

29 See Doc. 51; Doc. 60.

30 See Fed. R. Civ. P. 26(a)(2)(A) (“[A] party must disclose to the other parties the identity of

any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703,

or 705 [i.e., rules covering expert witnesses].”); Fed. R. Civ. P. 26(a)(2)(B) (“Unless otherwise

exclude evidence as an appropriate sanction for failure to comply with discovery

duties under Rules 26 and 37, courts consider four factors:

(1) the prejudice or surprise of the party against whom

the excluded evidence would have been admitted; (2) the

ability of the party to cure that prejudice; (3) the extent to

which allowing the evidence would disrupt the orderly

and efficient trial of the case or other cases in the court;

and (4) bad faith or willfulness in failing to comply with

a court order or discovery obligation.31

Applying this standard, the United States Court of Appeals for the Third

Circuit has held that it is well within a district court’s discretion to exclude an

expert’s testimony and report if the offering party failed to disclose the expert and

produce the report prior to the district court’s prescribed discovery deadline.32 That

said, exclusion of an expert’s testimony and report based on an untimely disclosure

is generally unwarranted if the prejudice to the opposing party is slight and

curable—particularly in the absence of a firm, impending trial date.33

prepared and signed by the witness—if the witness is one retained or specially employed to

provide expert testimony in the case.”); Fed. R. Civ. P. 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.”).

31 Nicholas v. Pennsylvania State University, 227 F.3d 133, 148 (3d Cir. 2000).

32 See McCann v. Miller, 502 F. App’x 163, 172 (3d Cir. 2012) (finding that district court did not

abuse its discretion in barring plaintiffs’ expert testimony when “plaintiffs did not notify

[defendants] of their intent to call the . . . expert witnesses until shortly before trial”).

33 See, e.g., White v. Beaver County, 2019 WL 5395212, at *2–3 (W.D. Pa. Oct. 22, 2019)

(declining to strike plaintiff’s expert report when “(1) the prejudice to the Defendant is slight;

(2) any prejudice can be cured by a brief extension of the case-management schedule; (3)

Plaintiff’s untimely filing is unlikely to disrupt trial of the case because no trial date has yet

Here, any prejudice caused by the date the Defendants produced their

expert’s report is slight, easily curable, and unlikely to disrupt trial. As a

preliminary matter, Brown cannot claim he was surprised to receive the expert

report, as the Defendants informed him of their intention “to respond to [his]

expert discovery” on September 23, 2021—seven days before the purported

deadline.34 Indeed, Brown’s attorney agreed to grant the Defendants an extension

to provide this response.35

Moreover, even if the September 30, 2021, discovery deadline applied to

expert witness material (which, again, it does not), the Court could—and would—

adjust the case management deadlines to mitigate any prejudice to Brown. Given

the representations made by the Defendants’ attorneys, the Court presumes the

Defendants would not object.36 And as this case has not been scheduled for trial,

any such adjustment would not disrupt the orderly and efficient trial of the case.37

Because the Defendants’ production of their expert’s report did not violate

any of this Court’s orders or cause Brown incurable prejudice, the Court declines

to strike the report.

34 Doc. 66, Ex. E at 2 (Sept. 23, 2021 R. Pugh & T. Kolman Emails).

35 Id. at 1.

36 See Doc. 66, Ex. G (Nov. 17, 2021 R. Pugh Email) (telling Brown’s attorney, “[i]f you wish

to depose our defense expert, I will not object and will agree to any extension of time you need

to do so”).

37 See White, 2019 WL 5395212, at *2 (“[T]he Court is hard-pressed to find a reason to strike the

III. CONCLUSION

The Court sympathizes with Brown: discovery in this case has dragged on

for more than two years and, in the Court’s estimation, the fault lies primarily with

the Defendants. That said, striking an expert report is a draconian measure

warranted only in extreme cases. And the circumstances here in no way justify

such a drastic remedy. The Court therefore denies Brown’s motion to strike the

Defendants’ expert report.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge