Lack v. Caesars Enterainment Corporation

Background

Myrna Lack brought a diversity action asserting a negligence claim under New Jersey law. She alleges that, in October 2019, she slipped and fell on a polished marble floor at defendants’ Atlantic City casino and suffered a left hip fracture.

On April 9, 2024, Lack filed a separate motion seeking to prevent Dr. Gidumal from testifying that her hip fractured spontaneously because of osteoporosis, causing her to fall. Defendants relied in part on a supplemental report dated March 31, 2024, which Lack’s counsel received by mail on April 22, 2024. Lack then asked the court to prevent defendants from using that supplemental report, arguing that it was an untimely attempt to add a new basis for the expert’s causation opinion.

Legal standard

Federal Rule of Civil Procedure 26 requires an expert’s written report to provide a complete statement of the expert’s opinions, the reasons and basis for those opinions, the facts or data considered, and supporting exhibits. The rule also requires a party to timely supplement or correct a report when it becomes materially incomplete or incorrect, and in any event by the deadline for pretrial disclosures.

Under Rule 37, a court may bar testimony or evidence when an expert report was not timely served or supplemented unless the failure was substantially justified or harmless. Courts consider the explanation for the delay, the importance of the testimony, the prejudice to the opposing party, and whether a continuance is possible. Because barring testimony is a severe sanction, courts must consider less severe responses first.

Analysis

The court first held that the supplemental report was not a timely supplement under Rule 26. The additional medical records discussed in it had been provided to defendants years earlier. For example, bone-density scan results had been sent to defense counsel on December 10, 2021. Defendants offered no explanation for why Dr. Gidumal waited so long to supplement his report.

Nevertheless, the court concluded that the failure was harmless and that preclusion was not warranted. The court rejected Lack’s argument that the supplemental report changed the substance of Dr. Gidumal’s previously disclosed causation opinion. His earlier reports had already reviewed surveillance video and medical records and had concluded that Lack’s hip broke before she fell, consistently with osteoporosis shown on the medical images and the absence of direct trauma to the hip area.

The supplemental report summarized additional medical records and provided background about insufficiency fractures associated with osteoporosis, but the court found that Dr. Gidumal continued to rely on the same theory. He provided more detail about the basis for his opinion, but did not change his method or disclose a new theory of causation.

The court also found that defendants had identified the additional medical records in their Rule 26 disclosures. The parties’ proposed pretrial order listed records from Lack’s primary-care physician and medical group, including the bone-density testing discussed in the supplemental report. The court therefore rejected the argument that Lack had no notice that defendants intended to use those records. The court also noted that records on Lack’s own exhibit list documented a history of osteoporosis in 2018.

The parties did not address the relative importance of the supplemental report, but the court found that expert testimony about an alternative theory of causation was materially important. A continuance would have been impractical and inefficient because of the age of the case and the court’s docket. However, trial was still about five weeks away, giving Lack enough time to prepare to confront and cross-examine Dr. Gidumal about the supplemental report.

Disposition

Judge Vincent L. Briccetti denied Lack’s letter application to prevent defendants from using the supplemental report. The order addressed only that application. The court reserved decision on Lack’s separate motion in limine and on whether Dr. Gidumal’s opinion about the cause of Lack’s fall was otherwise admissible.