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Supplemental expert report cured initial defect

The plaintiff defeated a motion to strike by convincing the court that any defects in his initial expert disclosure were cured by providing a supplemental report that detailed the information one expert relied upon in reaching his conclusions, withdrawing two witnesses as experts, and having a third expert testify as a non-expert witness.


On Jan. 18, 2019, the plaintiff, Roger S. Fuller Jr., filed an expert discovery report in which he disclosed the following expert witnesses: (1) Philip S. Hayden (expert in police procedures); (2) Christy Taylor (non-expert who would testify as to observations of plaintiff before and after alleged events that led to plaintiff’s injuries); (3) Dr. Nathan B. Fountain (expert in treating epilepsy and seizure disorders) and (4) Dr. Stephanie Bajo (expert in psychiatry).

The disclosure contains a written report of Mr. Hayden. Plaintiff did not provide a written report from Dr. Fountain or Dr. Bajo, indicating that the doctors had diagnosed plaintiff on the date that the expert witness disclosure was due, but that he would supplement the disclosures as soon as practicable.

After filing its own expert discovery report, the defendant Carilion Clinic filed a motion to strike plaintiff’s expert discovery report. Carilion Clinic first stated that Mr. Hayden’s report does not contain any discussion of the reasoning behind his conclusions, and the data he relied on to reach his conclusions may not be complete since Mr. Hayden indicated that such data may include information that has not yet been produced by Carilion Clinic. Carilion Clinic then indicated that Dr. Fountain’s and Dr. Bajo’s reports do not contain the required written reports signed by the witnesses.

The plaintiff then submitted a supplemental expert witness disclosure stating that, in the absence of a written report, Dr. Fountain is a treating physician, incorporating the disclosure of Dr. Fountain as set forth in the previous expert disclosure.

Plaintiff then filed a response to Carilion Clinic’s motion to strike. In that response, plaintiff withdrew Dr. Bajo and Dr. Fountain as retained expert witnesses, but indicated that Dr. Fountain was deposed by both parties. Plaintiff then asserted that Mr. Hayden’s report stated the information he relied upon to reach his conclusions, and that the report listed his credentials to reach such conclusions. Plaintiff then concluded by stating that he would agree to any extension of the discovery deadline should defendant choose to depose Mr. Hayden after reviewing the supplemental report.


Plaintiff Fuller has provided sufficient information in accord with Federal Rule of Civil Procedure 26(a)(2)(A) and (B). Fuller has remedied any potential defect in his initial expert disclosures by providing a supplemental report further detailing the information Mr. Hayden relied upon to reach his conclusions. Moreover, Fuller has withdrawn both Dr. Fountain and Dr. Bajo as retained expert witnesses, while noting that Dr. Fountain has been deposed by both parties. Dr. Fountain is designated as a treating physician under Federal Rule of Civil Procedure 26(a)(2)(C). Lastly, there seems to have been no objection based on Federal Rule of Evidence 701 as to Fuller’s intent to have Ms. Taylor provide non-expert testimony.

Defendant’s motion to strike denied.

Fuller v. Carilion Clinic, Case No. 17-cv-564, April 16, 2019. WDVA at Roanoke (Stamp). VLW 019-3-193. 4 pp.

VLW 019-3-193

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