United States District Court, D. New Hampshire
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.
A. DiClerico, Jr. United States District Judge
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.
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).
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).
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.
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.
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
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.
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.
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
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 ...