Economics Expert’s Updated Damages Calculations Admitted

Plaintiff Misty Blanchette Porter was previously employed as a physician in the Reproductive Endocrinology and Infertility (“REI”) Division within Dartmouth Health’s Department of Obstetrics and Gynecology (“OB/GYN”).

After Dartmouth Health made the decision to shut down the REI Division entirely and to terminate all three physicians employed therein—including Porter—Porter filed suit against Dartmouth Health citing disability discrimination.

Dartmouth Health argued that the testimony of Porter’s damages expert, Dr. Robert L. Bancroft, should have been excluded due to untimely disclosure under Rule 26.

Economics Expert Witness

Robert L. Bancroft holds a bachelor’s degree in economics from the University of Vermont (“UVM”); a Master of Science in agricultural economics from UVM; and a Ph.D. in agricultural economics from Purdue University.

From June 1979 until August 1981, Bancroft worked for the United States Department of Agriculture to develop an econometric forecasting model to forecast farmers’ participation in certain government programs and to provide testimony and research to the U.S. House of Representatives. Next, Bancroft began work as an assistant professor in the Department of Agriculture and Resource Economics—later renamed the Department of Community Development and Applied Economics—at the University of Vermont in August 1981. Bancroft continued as an assistant professor of economics until 1991, when he became an adjunct professor. He worked as an adjunct professor of economics until 1996.

Want to know more about the challenges Robert Bancroft has faced? Get the full details with our Challenge Study report.

Discussion by the Court

Rule 26

Dartmouth Health contended that the Court erred by admitting testimony and exhibits offered by Porter’s expert damages witness, Bancroft, because Porter failed to timely disclose several of his expert opinions under Rule 26.

The Court found that the timing of the disclosure of Bancroft’s March 19, 2025, supplemental report did not warrant a new trial. The March 2025 supplemental report was a direct response to defense counsel’s cross-examination of Bancroft at a hearing on Dartmouth Health’s motion to exclude Bancroft from testifying as an expert witness at trial.

Cross-examination elicited that Bancroft was unaware of certain information relevant to his calculations. Bancroft subsequently updated his report on March 19 to incorporate this new information. Dartmouth Health plainly knew this information before Bancroft issued his March 19 report, as defense counsel raised the issue at the evidentiary hearing. 

Moreover, Bancroft did not change the substance of his opinion. He used the same methodology in his March supplemental report as in his prior reports, changing only the inputs to produce updated damages calculations.

The Court did not share Defendants’ view that Bancroft issued his corrective March 2025 report because his testimony at the March 12 evidentiary hearing revealed that his August 2024 report “had not included key facts and assumptions . . . such as Porter’s promotion to full professor in July 2023 and her most recent earnings from UVMMC at a higher rate of pay than what Bancroft had projected.”

Rule 37

Even if the disclosures were untimely, admitting Bancroft’s testimony was not error because the disclosures were substantially justified or harmless under Rule 37.

The first factor—the willfulness of the non-compliance regarding the March 2025 report and the reason for the noncompliance—did not weigh definitively in either party’s favor. Porter knew well before March 2025 that she had received a $7,698 tuition credit for her son’s undergraduate education at UVM in 2019, and Bancroft could have included that information in his August 2024 report. On the other hand, Dartmouth Health knew that it had approved salary freezes in 2020 and 2021, and Dartmouth Health did not allege that Porter or Porter’s expert had that information until March 2025.

The efficacy of lesser sanctions and the possibility of a continuance weigh against excluding Bancroft’s testimony. Dartmouth Health’s proposed alternative—introducing its own expert witness to rebut Bancroft’s supplemental report—was simply not feasible only four days before a three-week trial.

The duration of noncompliance factor was inconclusive. Although Porter was aware of some information that impacted her expert’s damages calculations well in advance of the March 2025 report, other information was only in the possession, custody, or control of Dartmouth Health until the March evidentiary hearing. Bancroft submitted his updated report one week after the evidentiary hearing.

The Court is unaware of any previous warning to Porter that an untimely supplemental expert report could result in exclusion of the expert witness.

Moreover, Dartmouth Health already had a significant amount of the updated information Bancroft relied on for his March 2025 supplemental report. It is difficult to conceive how admitting the March 2025 report, or Bancroft’s testimony consistent with that report, prejudiced Dartmouth Health given that the report estimated substantially lower damages figures than any of Bancroft’s previous reports.

Held

The Court held that the relevant factors weighed against excluding Robert Bancroft’s testimony.

Key Takeaway:

Without Bancroft’s testimony, Porter would have been severely disadvantaged in quantifying her claimed economic damages. Such a sanction would have been disproportionate to the alleged noncompliance given that the late disclosure had a reasonable basis; Bancroft’s methodology did not change from one report to the next, and Bancroft’s final report substantially reduced Porter’s estimated damages.

Case Details:

Case Caption:	Blanchette Porter V. Dartmouth Hitchcock Medical Center
Docket Number:	2:17cv194
Court Name:	United States District Court, Vermont
Order Date:	November 26, 2025