Palliative Care Expert’s New and Expanded Opinions on Facility Neglect Admitted
Posted on December 1, 2025 by Expert Witness Profiler
Plaintiffs are the estates of three decedents, Robert W. Petersen (“Mr. Petersen”), Mary Ann Simons, (“Ms. Simons”) and Charlotte Elaine Guilford (“Ms. Guilford”) (collectively, “Plaintiffs”). Plaintiffs were residents of Canyon Creek, an assisted living facility in Billings, Montana specializing in memory care, during the height of the COVID-19 pandemic in 2020. Plaintiffs alleged that Canyon Creek was negligent in the care of Mr. Petersen, Ms. Simons, and Ms. Guilford and that its negligent care caused their deaths.
Defendants Koelsch Senior Communities, LLC (“Koelsch”), and Billings Partners, LLC d/b/a Canyon Creek (“Canyon Creek”) filed a motion in limine to exclude the Plaintiffs’ expert Scott Bolhack, M.D.’s undisclosed expert opinions and limit his testimony to only what was timely disclosed in his expert disclosure.
Palliative Care Expert Witness
Scott Matthew Bolhack, M.D. is board certified in internal medicine and hospice and palliative medicine with additional credentials as a Certified Wound Specialist Physician and a Certified Medical Director in long-term care. He has experience as a medical director for skilled nursing homes, assisted living facilities, hospices, home health agencies and wound centers. He has spoken on many topics nationally and has presented over 35 scientific posters in the areas of wound care, quality improvement, and post-hospital care.
Discussion by the Court
Defendants first sought to exclude three categories of material Bolhack relied on in forming his opinions, but did not disclose until his deposition. Those categories include: (1) documents available to Plaintiffs before the expert disclosure deadline but not provided to Bolhack until one week before his deposition; (2) documents available to Plaintiffs after the expert disclosure deadline but not provided to Bolhack until one week before his deposition; and (3) documents available to Bolhack before the expert disclosure deadline but only relied on after receiving the additional documents from Plaintiffs’ counsel one week before his deposition.
Defendants next sought to exclude Bolhack from relying on the new opinions found in his Deposition Notes, which were provided to Defendants for the first time at his deposition.
A. Federal Rule of Civil Procedure 26
1. Documents Available to Plaintiffs Before the Expert Disclosure Deadline but not Provided to Bolhack Until One Week Before his Deposition
All material in the first category, except for one employee declaration, was available to the parties before the expert disclosure deadline.
Yet, Plaintiffs did not provide the material to Bolhack until approximately one week before his deposition. This means Bolhack received the material almost three months after his initial disclosure and one month after the close of discovery.
Here, the Court found no reason justifying Plaintiffs’ decision to withhold the first category of material from Bolhack when that material was available before the expert disclosure deadline. Because Bolhack ultimately relied on the material to form his opinions, Plaintiffs failed to timely and adequately disclose under Rule 26(a).
2. Documents Available to Plaintiffs After the Expert Disclosure Deadline but not Provided to Bolhack Until One Week Before his Deposition
Here, the parties learned of the material in this second category after the initial disclosure deadline.
Therefore, Plaintiffs duty to supplement arose under Rule 26(e) when they learned that Bolhack’s Initial Disclosure was either incomplete or incorrect based on the new information. Plaintiffs’ contention that they “need not supplement when information [was] made known in the discovery process” has no merit here because the information in this second category exceeds the scope of Rule 26(e), that is—”correcting inaccuracies or filling the interstices of an incomplete report.”
As the Court has discussed, Bolhack used this second category of material to revise, add to, and create new opinions. Even if Plaintiffs are now conceding the Initial Disclosure was inaccurate or incomplete, they have failed to show what part of the Initial Disclosure needed to be corrected or filled in. As such, the Court found that the additional material in this category was not a proper supplementation as allowed under Rule 26(e)(1).
3. Documents Available to Bolhack Before the Expert Disclosure Deadline but Only Relied on After Receiving the Additional Documents from Plaintiff’s’ Counsel One Week Before his Deposition
The final category of material Defendants sought to exclude consisted of governmental regulations and medical literature Bolhack admitted to reviewing only after he received and reviewed the preceding two categories of material.
The scientific articles were published between 1993 and 2022, and the governmental regulations were both publicly available and long-standing. Therefore, they would have been available for review before the expert disclosure deadline.
Again, Bolhack did not disclose these regulations or articles in his Initial Disclosure and therefore they were untimely disclosed under Rule 26(a). And unless Plaintiffs now concede Bolhack’s Initial Disclosure was inaccurate or incomplete, the introduction of this new material was not proper supplementation as contemplated by Rule 26(e).
4. Bolhack’s Deposition Notes and Opinions
After receiving and reviewing the three categories of undisclosed material, Bolhack compiled his Deposition Notes. As a result, his Notes—by his own admission—contain “a host of opinions” not found in his Initial Disclosure.
Bolhack’s new and expanded opinions pertain to causation of death, facility neglect and causality, expanded event timelines, COVID-19 response, pressure wound management and nutritional declines, hospice care initiation, and detailed rebuttal of other experts’ testimony.
For example, as to causation and neglect, the Deposition Notes surpass the summary-level conclusions initially disclosed. At first, Bolhack detailed causation opinions regarding all three decedents, with references to multiple contributing factors beyond the primary disease listed on each death certificate, but with no specific references to Canyon Creek’s standard of care breach. By contrast, the Deposition Notes include more detailed and pointed attributions of death and decline to Canyon Creek’s failure in monitoring, intervention, and institutional processes, including explicit citations to regulatory standards.
Likewise, Bolhack’s Notes introduced new criticisms of Canyon Creek’s pandemic response. His new opinions connect pandemic failures to patient outcomes in ways that were largely absent from his Initial Disclosure.
Finally, unlike his Initial Disclosure, Bolhack’s Notes challenged opposing expert testimony with new opinions, stating he was not confident their COVID-19 severity assessment was correct, and critically questions whether appropriate processes were in place. His detailed critiques of the testimony and opinions of opposing experts, referencing both factual disagreements and regulatory mandates, are absent from the Initial Disclosure.
It is obvious—by Bolhack’s own admission and after review of the two reports—that the Deposition Notes are different from, rather than supplemental to, the opinions contained in his Initial Disclosure.
B. Federal Rule of Civil Procedure 37
1. Substantially Justified and Harmless
Plaintiffs first attempted to justify Bolhack’s late disclosure by claiming they complied with Defendants’ subpoena after the parties agreed expert notes were not discoverable.
Plaintiffs further argued that the late disclosure was harmless because Defendants have now known about Bolhack’s opinions for over a year, declined to follow up, and never tried to re-open the deposition or supplement their own experts’ reports.
The Court found that the late disclosure was neither substantially justified nor harmless. Initially, the late disclosure deprived Defendants of a meaningful opportunity to prepare for, examine, and respond to Bolhack’s new opinions at his deposition. True, Plaintiffs complied with Defendants’ subpoena. However, had Defendants not subpoenaed Bolhack, they may not have learned about the new materials Bolhack relied on or his new opinions until trial.
The record showed the additional material Bolhack relied on was largely available before the disclosure deadline. Plaintiffs offered no reason why it was not provided to Bolhack before his Initial Disclosure, and therefore, the late disclosure of the documents and Bolhack’s new opinions was not justified.
The Court next rejected Plaintiffs’ contentions that Defendants “sat on their hands” in bringing the instant motion. The procedural record reflected Defendants’ timely pursuit of relief consistent with the Court’s directive regarding the timing of motions in limine.
2. Sanctions
Here, Plaintiffs’ inadequate disclosure was neither substantially justified nor harmless. However, the Court ultimately concluded that the risk of any prejudice to Defendants at trial is mitigated by two factors. First, despite Plaintiffs’ procedural infraction, Defendants have had adequate time to prepare for trial since they learned of Bolhack’s late disclosure 14 months ago. Second, expert testimony is essential to litigating the parties’ case; as such, there are less drastic sanctions available than striking portions of Bolhack’s opinions.
The jury should be allowed to weigh the entirety of Plaintiffs’ experts’ opinions.
Therefore, the Court elected to impose the lesser sanction of allowing Plaintiffs to file Bolhack’s supplemental expert report and allowing Defendants to reopen Bolhack’s deposition. The parties may conduct this deposition by Zoom or other remote means, and Plaintiffs shall bear the reasonable costs of conducting this deposition.
Held
The Court denied Defendants’ motion in limine to exclude the Plaintiffs’ expert Scott Bolhack, M.D.’s undisclosed expert opinions and limit his testimony to only what was timely disclosed in his expert disclosure.
Key Takeaway:
Sanctions which interfere with the litigants’ claim or defenses violate due process when they are imposed merely for punishment of an infraction that did not threaten to interfere with the rightful decision of the case.
Case Details:
| Case Caption: | Estate Of Robert W. Petersen Et Al V. Koelsch Senior Communities LLC |
| Docket Number: | 1:22cv11 |
| Court Name: | United States District Court, Montana |
| Order Date: | November 13, 2025 |
