LEWIS et al v. SPURWINK SERVICES INC

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
GRETCHEN LEWIS, et al., )
)
Plaintiffs )
)
v. ) 2:22-cv-00054-NT
)
SPURWINK SERVICES, INC., )
)
Defendant )
ORDER ON MOTION FOR SANCTIONS
Defendant asks the Court to impose sanctions upon Plaintiffs for alleged discovery
violations related to the expert witnesses designated by Plaintiffs. More specifically,
Defendant seeks to exclude or limit expert testimony and the reimbursement of certain
attorney fees and costs. (Motion for Sanctions, ECF No. 43.) Following a review of the
record and after consideration of the parties’ arguments, the Court grants in part and denies
in part Defendant’s motion.
BACKGROUND
Plaintiffs are the parents and legal guardians of their adult son, Sean Lewis, who has
multiple physical and cognitive disabilities. Plaintiffs allege that while Sean was enrolled
in one of Defendant’s residential programs, Defendant failed to provide appropriate care
for Sean.
Plaintiffs designated Kieran Kammerer, M.D., and John Kelty, Ph.D., a clinical
psychologist, as expert witnesses. As the result of Defendant’s objections to the adequacy
of Plaintiffs’ designations and following conferences with the Court, Plaintiffs amended
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their designations on multiple occasions to address Defendant’s concerns that Plaintiffs’
designations failed to identify the bases and reasons for the experts’ opinions. Defendant
then conducted the depositions of the experts.1
During questioning at Dr. Kammerer’s videoconference deposition, Plaintiffs’
counsel observed Dr. Kammerer look down at something offscreen before responding to a
question regarding the information he reviewed in connection with one of his opinions.
(Dep. of Dr. Kammerer at 73-74, ECF No. 43-2.) Dr. Kammerer acknowledged that he
looked at a notepad with a note from counsel. (Id.) When asked to produce the document
that the witness evidently viewed, Plaintiffs’ counsel declined. When Defendant’s counsel
asked Dr. Kammerer to read the note, Plaintiffs’ counsel instructed the witness not to do
so. (Id. at 74-75.) Approximately one month following the deposition, Plaintiffs’ counsel
produced the document. The document consists of notes written by Plaintiffs’ counsel
during the deposition and a written “arrow” directed to a specific portion of the notes.
(Exhibit E to Defendant’s Motion for Sanctions at 20, ECF No. 43-5.) Plaintiffs’ counsel
wrote in a letter to Defendant’s counsel that he had drawn an arrow on his legal pad and
further stated: “I did not provide information to form the basis of an answer to your question
about what documents he had reviewed prior to testifying. I was simply directing his
attention to his prior answer to your question about what documents he had reviewed prior
1 Defendant deposed Dr. Kammerer over the course of two days (December 4, 2023, and December 7,
2023), and deposed Dr. Kelty on December 22, 2023.
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to testifying. In hindsight, I can appreciate both that you were surprised and frustrated by
this incident. I apologize.” (Id. at 1.)
At his deposition, Dr. Kelty testified that he made some notes during his assessment
of the matter. When Defendant’s counsel asked Dr. Kelty to provide a copy of the notes,
Plaintiffs’ counsel instructed Dr. Kelty not to forward the notes. (Dep. of Dr. Kelty at 135-
138, ECF No. 43-3.) Plaintiffs’ counsel suggested that he would produce at least some of
the requested documents after the deposition. Approximately two weeks after the
deposition, Plaintiffs’ counsel sent Dr. Kelty’s notes to Defendant’s counsel. During the
deposition, Plaintiffs’ counsel, citing the work product privilege, also advised Dr. Kelty
not to answer questions regarding the information counsel shared with Dr. Kelty regarding
the deposition testimony of another witness, Dara Oja, a nurse who evidently provided
some services to Sean. (Dep. of Dr. Kelty at 58-59, ECF No. 43-3.)
DISCUSSION
Defendant asks the Court to exclude or limit the testimony of Drs. Kammerer and
Kelty based on Plaintiffs’ alleged failure to comply with the discovery requirements of
Federal Rules of Civil Procedure 26 and 30. Defendant also seeks the attorney fees and
costs incurred in its efforts to learn the experts’ opinions and the bases of the opinions and
its fees and costs in the prosecution of this motion. Plaintiffs contend the expert witness
designations were adequate and the record does not support Defendant’s request for
sanctions.
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A. Expert Witness Designations
“A party seeking to introduce expert testimony at trial must disclose to the opposing
party a written report that includes ‘a complete statement of all opinions the witness will
express and the basis and reasons for them.’” Gay v. Stonebridge Life Ins. Co., 660 F.3d
58, 62 (1st Cir. 2011) (quoting Fed. R. Civ. P. 26(a)(2)(B)). “The purpose of the expert
disclosure rules is to facilitate a fair contest with the basic issues and facts disclosed to the
fullest practical extent.” Poulis-Minott v. Smith, 388 F.3d 354, 358 (1st Cir. 2004) (citation
and internal quotes omitted). The court may impose sanctions under Rule 37(c)(1),
including precluding the non-complying party from “using that witness or relevant expert
information to supply evidence . . . at trial.” Gay, 660 F.3d at 62. “Thus Rules 26(a) and
37(c)(1) seek to prevent the unfair tactical advantage that can be gained by failing to unveil
an expert in a timely fashion.” Poulis-Minott, 388 F.3d at 358.
As was apparent during the parties’ discovery conferences with the Court, the
adequacy of an expert witness designation before the expert’s opinion is offered at trial or
as part of a motion practice is often difficult to assess. A challenge to the adequacy of a
designation typically arises when a party offers an expert opinion either at trial or in
connection with a dispositive motion and the opposing party contends the designation did
not fairly inform the party of the opinion or the bases for the opinion. Most expert witness
designations include a summary of the opinion or opinions and at least a minimal
explanation of reasons the expert maintains the opinion. Plaintiffs’ designations were
consistent with that approach.
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Here, the Court could not at the time of the conferences and cannot now find that
on their face, Plaintiffs’ designations were or are inadequate. Plaintiffs summarized each
expert’s anticipated opinions and the grounds for the opinions. Plaintiffs’ designations do
not preclude the designated experts from testifying to the identified opinions as clarified or
explained during the experts’ depositions. Whether the opinions Plaintiffs attempt to
present at trial or in connection with a dispositive motion are in accord with the identified
opinions as explained during the depositions would be decided by the Court at the time of
the proffer, if challenged by Defendant.
B. Conduct During Deposition
Defendant argues that counsel unreasonably and inappropriately directed the expert
witnesses not to provide certain information during their depositions and, therefore,
interfered with Plaintiffs’ ability to question the experts.
1. Communication with Dr. Kammerer
When Defendant’s counsel asked Dr. Kammerer about the information he reviewed
in forming one of his opinions, through use of a written “arrow,” Plaintiffs’ counsel
directed Dr. Kammerer’s attention to a portion of the notes counsel was making during the
deposition. The arrow pointed to the note “opinion based on med records his Spurwink
MMC etc.” (Exhibit E to Defendant’s Motion for Sanctions at 20, ECF No. 43-5.)
“It is well settled that it is inappropriate for an attorney to influence or coach a
witness during a deposition.” Musto v. Transport Workers Union of America, AFL-CIO,
No. 03-CV-2325 (DGT)(RML), 2009 WL 116960, at *1 (E.D. N.Y. Jan. 16, 2009) (citing
Calzaturficio S.C.A.R.P.A. s.p.a. v Fabiano Shoe Co., Inc., 201 F.R.D. 33, 40 (D. Mass.
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2001)). In this case, the transcript of the deposition testimony and counsel’s explanation
(“I was simply directing his attention to his prior answer to your question about what
documents he had reviewed prior to testifying”) demonstrate that counsel attempted to
influence or direct the testimony of the witness as he was testifying.
Plaintiffs argue that in “context,” counsel’s interaction with the witness did not
delay or interfere with the deposition. (Plaintiffs’ Response to Motion for Sanctions at 14,
ECF No. 53.) While the nature and substance of the information communicated by counsel
might inform the consequence of the conduct, any attempt by counsel to influence the
substance of a witness’s testimony while the witness is testifying during a deposition is
unacceptable. Such conduct risks “undermin[ing] the truth-seeking purpose of discovery.”
Barksdale School Portraits, LLC v. Williams, 339 F.R.D. 341, 345 (D. Mass. Aug. 31,
2021) (imposing sanctions where counsel repeatedly “surreptitiously fed answers” to a
deponent).
2. Dr. Kelty’s Notes
The record suggests the disputed documents referenced in Dr. Kelty’s deposition
include the notes that Dr. Kelty took during his review of the matter and possibly other
items. For instance, Plaintiffs’ counsel references some correspondence or other
documents that might be within the work product privilege. The work product privilege,
however, would not protect from discovery the notes taken by a retained testifying expert
witness while reviewing the materials from which the witness developed an expert opinion.
Plaintiffs’ counsel’s stated willingness to produce the documents after the deposition
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suggests that in the moment, counsel suspected or believed that at least some of the
documents were discoverable.
3. Communication Regarding Nurse Oja’s Testimony
Citing the work product privilege, Plaintiffs’ counsel directed Dr. Kelty not to
disclose the substance of counsel’s discussion with him regarding Nurse Oja’s deposition
testimony. The work and communications of expert witnesses are not categorically
covered by the work product privilege. See Fed. R. Civ. P. 26(b)(4); In re Application of
Republic of Ecuador v. Douglas, 153 F. Supp. 3d 484, 490 (D. Mass. 2015). For expert
witnesses expected to give testimony to the factfinder, draft reports are protected from
disclosure, Fed. R. Civ. P. 26(b)(4)(B), as are communications between the attorney and
the expert, with the exceptions of communications related to compensation and the facts
and assumptions underlying expert opinions. Fed. R. Civ. P. 26(b)(4)(C). A review of the
record reveals that the information counsel shared regarding Nurse Oja’s testimony was
not “considered” or “relied on” by Dr. Kelty. Fed. R. Civ. P. 26(b)(4)(ii)(iii). Dr. Kelty’s
testimony reveals that he considered and relied on email communications to which Nurse
Oja was a party, but that he did not consider Nurse Oja’s deposition testimony. Dr. Kelty
testified, “what I’m going on is the basis of those email exchanges and what she said in
those exchanges. What she says about it now may or may not be relevant to my opinion.
It could be, but it also might be – might not be.” (Dep. of Dr. Kelty at 61-62.)
4. Sanctions
“The Court may impose an appropriate sanction . . . on a person who impedes,
delays, or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2).
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Plaintiffs’ counsel’s attempt, through a written communication during the deposition, to
direct Dr. Kammerer to his response to a prior question constitutes an effort to influence
Dr. Kammerer’s testimony. That effort and the related instruction to Dr. Kammerer not to
disclose the substance of the communication “impeded and frustrated” the ability of
Defendant to conduct an examination of the Dr. Kammerer. The degree to which, if at all,
the failure to produce Dr. Kelty’s notes interfered with Defendant’s examination of Dr.
Kelty, is uncertain given that Defendant did not seek to reopen the deposition after receipt
of the notes.2 Nevertheless, Defendant’s frustration with the inability to review the records
during the deposition is reasonable.
While the Court believes sanctions are warranted, because the Court discerns no
unfair prejudice to Defendant’s substantive arguments in defense of Plaintiffs’ claims, the
Court will not exclude or limit the expert witnesses’ testimony. The Court concludes that
monetary sanctions should operate to deter similar conduct and compensate Defendant for
its efforts to address the conduct. See Anderson v. Beatrice Foods Co., 900 F.2d 388, 394
(1st Cir. 1990) ( “Sanctions, under both Rules 11 and 37, serve dual purposes of deterrence
and compensation.”).
CONCLUSION
Based on the foregoing analysis, the Court grants in part and denies in part the
motion for sanctions. The Court orders:
2 On January 2, 2024, Plaintiffs’ counsel asked Defendant’s counsel to advise whether Defendant intended
to reconvene Dr. Kelty’s deposition. (Exhibit E to Defendant’s Motion for Sanctions at 2.) The record
lacks any evidence that Defendant sought to reconvene the deposition.
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1. Defendant’s request to exclude or limit the scope of the testimony of Drs.
Kammerer and Kelty is denied without prejudice to Defendant’s ability
to challenge the scope of the opinions offered at trial or in connection
with a dispositive motion if Defendant believes the designations and
deposition testimony did not fairly notify it of the proffered opinions.3
2. Plaintiffs shall reimburse Defendant for the reasonable attorney fees and
costs Defendant incurred during the conduct of Dr. Kammerer’s
deposition.
3. Plaintiffs shall reimburse Defendant for the reasonable attorney fees and
costs Defendant incurred in prosecuting the motion for sanctions.
3 Defendant also argues that Dr. Kelty’s Declaration, filed in response to the motion for sanctions, should
be disregarded because in the Declaration, Dr. Kelty testifies to facts that are inconsistent with his
deposition testimony. The inconsistencies appear to involve primarily the time when Dr. Kelty might have
formed his opinions and the information he reviewed as he formed his opinions. The mere fact that a
declaration is inconsistent with deposition testimony does not automatically result in the disregard of the
declaration. In the context of summary judgment practice, the First Circuit has observed, “[w]here a party
has given ‘clear answers to unambiguous questions’ in discovery, that party cannot ‘create a conflict and
resist summary judgment with an affidavit that is clearly contradictory,’ unless there is a ‘satisfactory
explanation of why the testimony has changed.’” Hernandez-Loring v. Universidad Metropolitana, 233
F.3d 49, 54 (1st Cir. 2000) (quoting Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4–5 (1st Cir.
1994)). But “lapse of memory, new sources of information or other events can often explain a revision of
testimony.” Id. “[I]n applying this rule, it is critical that there be no ‘satisfactory explanation’” before a
court disregards a party’s affidavit. Id. The Court would address the issue of whether Plaintiffs can rely
on the information in the Declaration, if raised, either at trial or in connection with dispositive motion
practice. If the inconsistencies are material, whether the Court limits Dr. Kelty’s testimony to his deposition
or permits him to supplement his testimony as set forth in the Declaration would depend at least in part on
whether Dr. Kelty provides a “satisfactory explanation” for the differences.
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NOTICE
Any objection to this order shall be filed in accordance with Federal
Rule of Civil Procedure 72.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 25th day of April, 2024.
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