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Colligan v. Mary Hitchcock Memorial Hospital

United States District Court, D. New Hampshire

June 14, 2018

R. Lacey Colligan, M.D.
Mary Hitchcock Memorial Hospital and Dartmouth Hitchcock Clinic

          William E. Christie, Esq., Natalie J. Laflamme, Esq., Timothy John McLaughlin, Esq., William D. Pandolph, Esq., Christopher James Pyles, Esq.


          Joseph A. DiClerico, Jr. United States District Judge

         The plaintiff, R. Lacey Colligan, M.D., brought suit against Mary Hitchcock Memorial Hospital and Dartmouth Hitchcock Clinic, alleging disability discrimination and infliction of emotional distress that arose from an incident that caused the defendants to terminate a business relationship with her and bar her from their property. The plaintiff moves to exclude the defendants' expert witness, Bonnie Michelman, pursuant to Federal Rule of Civil Procedure 37(c)(1). The defendants object to the motion.

         Standard of Review

         Federal Rule of Civil Procedure 26(a)(2) governs disclosure of expert witnesses and related information. For expert witnesses who are required to provide a written report, the report must include, among other things, “the facts or data considered by the witness in forming [the opinions stated in the report], ” the witness's qualifications along with a list of all publications over the past ten years, “a list of all other cases in which, during the past 4 years, the witness testified as an expert at trial or by deposition, ” and a statement of the compensation to be paid to the witness. Rule 26(e) requires timely supplementation of disclosures made under Rule 26(a).

         Rule 37(c)(1) provides: “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Rule 37(c)(1) provides additional or alternative sanctions of ordering the party to pay reasonable expenses, informing the jury of the party's failure, and the sanctions listed in Rule 37(b)(2)(A). Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 77-78 (1st Cir. 2009). A party who fails to comply with Rule 26(a) or (e) bears the burden of showing that the failure was substantially justified or harmless. Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001).


         The plaintiff alleges that the defendants hired her, through a contract with her company, Sharp End Advisory, LLC, as a research consultant. As of January 1, 2015, the plaintiff became an adjunct assistant professor in the department of pediatrics at the Geisel School of Medicine at Dartmouth College. She further alleges that she was a patient at Dartmouth-Hitchcock and that she had a diagnosis of post-traumatic stress disorder and depression.

         During the time of the events pertinent to this case, Dr. John Birkmeyer was an executive vice president of Darthmouth-Hitchcock, chief academic officer, and program director for a project funded by a grant from an agency within the United States Department of Health and Human Services. The plaintiff also contributed to the grant. During the summer of 2015, Dr. Birkmeyer held meetings at Dartmouth-Hitchcock to announce new and contentious plans to address budgetary concerns, which included consolidation of the pediatrics department. The plaintiff opposed the budgetary restrictions and consolidation plans.

         About 8:00 on the morning of September 1, 2015, the plaintiff was walking near her home when she alleges that she saw someone in a car across from the Birkmeyers' home taking pictures and she thought she recognized the person as someone who had recently been terminated by the defendants. The Birkmeyers' house was in the midst of a construction project, and the plaintiff went to an open side door, where workers were entering the house. A worker directed her to the front door.

         Dr. Birkmeyer's wife met her at the front door. The plaintiff said to Mrs. Birkmeyer: “I want you to know that we don't like what Dr. Birkmeyer is doing and we all know where you live.” Mrs. Birkmeyer was concerned and called her husband at work to report the incident. Soon after the incident, the plaintiff went back to the Birkmeyers' house and left flowers and a note of apology.

         Dr. Birkmeyer contacted the head of human resources at Dartmouth-Hitchcock to report the incident. He also reported the incident to the Hanover police. The Birkmeyers secured their home and took measures to protect their family.

         Based on Dr. Birkmeyer's report, the defendants immediately decided to terminate their relationship with the plaintiff. Later on September 1, the director of employee relations notified the plaintiff of that decision. The defendants also limited the plaintiff's access to and use of the Dartmouth-Hitchcock system, including barring her from the defendants' property except in cases of medical emergency and to attend scheduled medical appointments as a patient, in which case she was required to contact security before she arrived.

         The plaintiff brought this action on November 18, 2016. The defendants disclosed Bonnie Michelman as their expert witness on December 4, 2017, and provided the plaintiff with Michelman's report. Michelman is currently, and has been since 1991, “Executive Director of Police, Security, and Outside Services” at Massachusetts General Hospital. Michelman did not disclose in her report any publications, other cases where she served as an expert, or the compensation she is being paid in this case. She ...

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