Proposed Expert Witnesses Barred from Evaluating Psychological and Economic Damages
Posted on October 8, 2024 by Expert Witness Profiler
Domski filed this lawsuit on August 11, 2023, alleging that she was wrongfully terminated from her employment by defendant Blue Cross Blue Shield of Michigan after she refused to comply with the company’s COVID-19 vaccination policy. Domski worked for Blue Cross Blue Shield from March 10, 2008 until her termination on January 5, 2022, most recently as an IT Process Specialist II.
She submitted a written religious exemption request, which generally cited a belief that taking the vaccine would be immoral because “[t]he three COVID vaccines were ether developed or tested using fetal cells that originated in abortion.”
The Defendant interviewed Domski regarding her religious beliefs but denied her request for an accommodation shortly thereafter, stating that “she did not meet the criteria for an exemption due to a sincerely held religious belief, practice, or observance.”
On July 5, 2024, the Plaintiff filed a witness list indicating that Dr. Gerald A. Shiener would provide expert testimony regarding the Plaintiff’s psychological damages, and Jeffrey Bagalis would provide expert testimony as to the Plaintiff’s economic damages. The Plaintiff served Bagalis’ report on the Defendant on July 18, 2024. Generally, he opined that the Plaintiff’s economic damages exceed $1.2 million. At oral argument, the Plaintiff stated that she had furnished a report from Shiener on September 12, 2024.
The Defendant asked the Court to exclude the testimony of Bagalis and Shiener because the disclosures were woefully late. Blue Cross maintained that the Plaintiff’s expert disclosures came as a surprise because she did not list either expert on her initial disclosures or include them in her responses to its discovery requests, and Blue Cross did not have an opportunity to depose them during the discovery period.
Psychiatry Expert Witness
Dr. Gerald Shiener, MD, is a board-certified psychiatrist with over 40 years of experience. He is also an Assistant Professor in the Department of Psychiatry at Michigan State University.
Accounting Expert Witness
Jeffrey Bagalis is the Managing Member of Accurity Group, LLC (“Accurity”), a Certified Public Accountant (CPA), Accredited in Business Valuations (ABV), and Certified in Financial Forensics (CFF) with over 20 years of experience providing a wide range of professional service.
Discussion by the Court
The Court held that the Plaintiff’s expert disclosures in this case plainly were deficient. Under the scheduling order, Domski was obligated to serve her Rule 26(a)(2)(B) and (C) disclosures on or before December 7, 2024. Neither of her proposed expert witnesses was disclosed formally until July 5, 2024, more than half a year past the deadline.
The Plaintiff’s disclosures also were substantively deficient. Because Shiener and Bagalis were retained experts, Rule 26(a)(2)(B) required Domski to furnish a report containing, among other things, a complete statement of the expert’s opinions and their basis, “the facts or data considered by the witness,” a statement of the expert’s experiences and qualifications, and information about the expert’s compensation. She did not provide a report for Bagalis until July 18, 2024 and did not provide a report from Shiener until after the briefing was completed on this motion.
Citing Rule 26(a)(2)(D)(i), the Plaintiff appears to argue that her expert disclosure was timely because that rule establishes a deadline of 90 days before trial. She forgot, however, that this is a default rule, which only applies “[a]bsent a stipulation or a court order.”
Surprise
The Plaintiff argued that its expert disclosures did not surprise the Defendant for two reasons. Initially, she said that her responses to the Defendant’s interrogatories in November 2023 put it on notice of her intention to seek expert testimony regarding her economic and psychological damages. She added that her attorney’s February 4, 2024 email regarding expert discovery in the other cases the attorneys were managing together should have alerted him to her intentions in this case.
Despite the Plaintiff’s representation about her intentions, it is uncontested that she never disclosed information about any expert by the December 7, 2023 deadline. By its own terms, the Plaintiff’s email would seem to exclude Domski’s case because the discovery deadline had already passed, and no dispositive motions had been filed. The Court expressly stated that the scheduling order in this case trumps any inconsistent provision of the consolidation order governing the other cases.
All should have been aware that this case has its own scheduling order and deadlines for expert disclosure, so nothing about the email necessarily alerted the Defendant that the Plaintiff intended to use Bagalis and Shiener in this case.
Therefore, the Court held that these two announcements did not minimize the effect of the Plaintiff’s late disclosures on this case; it was reasonable for the Defendant to believe that the Plaintiff did not anticipate using expert testimony in this matter. And even if the Defendant was informed that expert witnesses might be part of the Plaintiff’s evidentiary presentation, that information was not much use without the detail required by Rule 26(a)(2)(B).
Ability to Cure Surprise and Disruption to Trial
The Plaintiff’s argument that the surprise can be cured takes two paths. First, she says that it was the Defendant that “manufactured” the surprise by not moving to compel the production of the missing expert reports and by not responding to her attorney’s February 4, 2024 email containing her counsel’s “plan.”
However, Rule 26(a)(2) places the disclosure obligation on the party offering the evidence, in this case, the Plaintiff. The Defendant was under no obligation to seek the production of a report it did not know existed and had no reason to suspect would be forthcoming, and the February 4, 2024 email contained no indication that it applied to this case. The Defendant only became aware of the Plaintiff’s intention to use experts for this case in July and filed a motion to exclude these untimely-disclosed witnesses shortly thereafter.
The Plaintiff argued that there is ample opportunity to cure any surprise and only a small likelihood of disrupting the trial date because she can make her experts available for depositions before the trial, or the trial date can be adjusted.
The Court disagreed. For one, taking these depositions is only one step in the Defendant’s likely trial preparation. It is reasonable to anticipate that the Defendant would want to find its own rebuttal experts, provide the factual materials to them, generate reports, and prepare them for trial. At oral argument, Plaintiff’s counsel acknowledged that Schiener actually examined the Plaintiff before completing his report. Presumably, a defense expert would want to do the same. And the Plaintiff forgets that compressing the schedule as she suggests would deprive the Defendant of mounting a Daubert challenge to the expert witnesses’ testimony.
Certainly, issuing a new scheduling order would cure all of these difficulties. But the Plaintiff must demonstrate good cause for that relief.
Importance of the Evidence
Both sides seem to agree that the testimony of Bagalis and Shiener relates only to the question of damages. Excluding Bagalis and Shiener as witnesses will not make or break the Plaintiff’s liability case.
In this case at least, the Court held that the unimportance of the evidence, when measured against the burden of providing the Defendant an opportunity to take expert discovery and procure rebuttal experts in an otherwise straight-forward case, weighs against the Plaintiff.
Non-Disclosing Party’s Explanation
The Plaintiff’s explanation for failing to disclose her expert reports by the ordered deadline is unclear, which, perhaps, is at least partially attributable to her apparent belief that the reports were submitted timely. The Plaintiff seems to view her lapse within the context of the other ongoing lawsuits against the Defendant being managed by her counsel.
The Court held that this explanation is unpersuasive; it confounds the tasks of litigating wholesale multiple similar claims with producing discovery that is inherently individualized.
And each of those Plaintiffs no doubt will present their own evidence of damages. Domski’s case stands on its own and is subject to its own scheduling order. As the Court has previously reminded the parties, “counsel should have evaluated whether it was prudent to take on this workload if they were not prepared to litigate each case to completion by the dates established in the Court’s scheduling order.”
Held
The Defendant’s motion to exclude the Plaintiff’s proposed expert witnesses Gerald A. Shiener and Jeffrey Bagalis is granted.
Key Takeaway:
Because of the Plaintiff’s late disclosure, the Defendant would be deprived of the opportunity for an evidentiary challenge under Evidence Rule 702 and probably would not be able to marshal rebuttal evidence in a measured and non-rushed manner, which the scheduling order was intended to avoid.
The Plaintiff failed to comply with the deadlines for disclosing expert witness information, and she has not shown that the failure was substantially justified or harmless. The mandatory preclusion sanctions in Rule 37(c)(1) apply here.
Case Details:
| Case Caption: | Domski V. Blue Cross Blue Shield Of Michigan |
| Docket Number: | 2:23cv12023 |
| Court: | United States District Court, Michigan Eastern |
| Order Date: | October 07, 2024 |
