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Ronald S. Robinson v. Suffolk County Police Department

October 17, 2011


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:


Presently before the Court is Defendants' objections to Plaintiff's purported expert report dated August 19, 2011. See DE 98. The report at issue was drafted by Plaintiff's treating physician, Dr. Brian Durkin, who is the current Director of the Center for Pain Management within the Department of Anesthesiology at the Stony Brook University Medical Center. Defendants argue that the most recent submission "is wholly inadequate and does nothing to cure the defects of the prior attempts" by Dr. Durkin. As such, Defendants object to the purported report and any attempt of Plaintiff to offer testimony designated to reach the conclusions contained in the report.


As reflected in the docket of this action, the Court has given the pro se Plaintiff multiple opportunities to serve an expert report that complies with Rule 26 of the Federal Rules of Civil Procedure. During the April 6, 2011 Status Conference, Plaintiff notified the Court of his intention to introduce an expert witness in the case, namely, his treating physician, Dr. Durkin. See DE 84, ¶ 3. At a subsequent Pre-Trial Conference held on June 27, 2011, Plaintiff advised the Court that he served Defendants' counsel with an expert report prior to the April 26, 2011 deadline. Defendants' counsel argued, however, that the report, consisting of a one-page letter, did not comply with Rule 26. After reviewing the purported expert report, the Court agreed with Defendants' counsel and found that Dr. Durkin's report did not satisfy the requirements of Rule 26. See DE 93, ¶ 2. After providing Plaintiff with a copy of Rule 26(a)(2)(B), which lists the information that must be addressed in the expert report, the Court went on to state the following:

In this case, it is clear from the Plaintiff's statements that he intends to have his treating physician testify in an expert capacity. That is perfectly acceptable, so long as the expert complies with the requirements of Rule 26. Here, the Court is advised by the Plaintiff that his physician will be testifying as to causation as it relates to the underlying incident. Specifically, the doctor presumably will be offering an opinion, "with a reasonable degree of medical certainty" (the standard for expert testimony), that the neck injury sustained by the plaintiff was directly caused by the incident underlying this lawsuit. In order to do so, the doctor must file a complete expert report, setting forth all the required information and documentation provided for in Rule 26, including what he relied upon in forming his opinion (e.g., medical records, prior experience, medical treatises, the physician's own publications, etc.). The report should be divided by (and address) the six categories of information stated in Rule 26. Plaintiff is urged to give a copy of this Order to the physician to assist him in this process.

Id. At this same Conference, the Court gave Plaintiff one final opportunity to serve Defendants' counsel with an expert report that satisfies the requirements of Rule 26. An August 5, 2011 deadline was given for such service to be made and another conference was scheduled for August 22, 2011.

Subsequent to the June 27, 2011 Conference, Plaintiff submitted to the Court and Defendants' counsel another single-page letter from Dr. Durkin dated July 18, 2011. On August 15, 2011, Defendants' counsel objected to this purported expert report since it failed to comply with Rule 26 on its face and was, according to Defendants, completely speculative. See DE 95. At the August 22, 2011 Conference, Plaintiff provided Defendants' counsel and the Court with additional documents from Dr. Durkin. These documents included: (1) an August 3, 2011 letter from Dr. Durkin setting forth his deposition fee; (2) an August 19, 2011 letter which appears to be Dr. Durkin's most recent purported expert report; and (3) Dr. Durkin's curriculum vitae. See DE 96, ¶ 1. In light of this new information, the Court granted Defendants' counsel ten (10) days to review the materials and submit any opposition to the Court. On August 31, 2011, Defendants' counsel submitted his objections which is the basis for the instant dispute.


The Court explicitly instructed Plaintiff during the June 27, 2011 Conference that he had one final opportunity to cure the deficiencies contained in the previously submitted expert reports. The purported August 19, 2011 "expert report" and the other submissions from Dr. Durkin not only fail to rectify all the deficiencies contained in the previously submitted expert reports but they also bring to light other serious concerns regarding Dr. Durkin's anticipated expert testimony. Rule 26 explicitly states that an expert report must contain the following:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B). Courts may strike expert reports that are incomplete and insufficiently detailed to satisfy Rule 26(a)(2). See Conte v. Newsday, Inc., No. CV 06-4859, 2011 WL 2671216, at *4 (E.D.N.Y. July 7, 2011) ("An expert report that lacks detailed discussion and fails to include any of the underlying conclusions on which the experts' ultimate opinions are based violates Rule 26(a)(2)(B) and may be excluded pursuant to Rule 37.") (internal quotations omitted); Smolowitz v. Sherwin-Williams Co., No. 02-CV-5940, 2008 WL 4862981, at *3 (E.D.N.Y. Nov 10, 2008) ("A party that fails to satisfy the Rule 26 disclosure requirements without justification is precluded from offering expert witnesses at trial.")

Putting aside the fact that the most recent proposed expert report satisfies only some of the Rule 26 requirements when it is considered in conjunction with Dr. Durkin's other submissions,*fn1 other Rule 26 requirements are either missing or inadequately addressed. For instance, the purported expert report (or the other submissions from Dr. Durkin) fails to identify or attach any exhibits that will be used by Dr. Durkin to support the opinions rendered in his report. In addition, while the purported report contains Dr. Durkin's ultimate opinion that Plaintiff "was the recipient of some type of violence that likely led to the disc bulge at C3-C4," the report does not explain the basis and reasoning behind this opinion. In fact, all Dr. Durkin states in the report is that prior cervical spine scans revealed an essentially normal C3-C4 level and that a subsequent cervical spine scan was done on March 9, 2007. While the Court presumes that it is Dr. Durkin's belief that this March 9, 2007 spine scan evidences a disc bulge that was not present in previous spine scans, the report inadequately explains Plaintiff's injury and the cause of the same. Likewise, Dr. Durkin does not provide any basis or reasoning supporting his opinion that Plaintiff "has more chronic pain now." Therefore, in this Court's view, Dr. Durkin's report does not satisfy the requirements of Rule 26(a)(2)(B) and should be excluded. See Smolowitz, 2008 WL 4862981, at *3 (finding plaintiff's purported expert report which failed to explain the basis for the opinions rendered inadequate).

Separate from the issue of whether Dr. Durkin's report was in compliance with Rule 26 is the admissibility of the "expert" testimony which Dr. Durkin seeks to offer in this case. See Conte, 2011 WL 2671216, at *4 ("Whereas Rule 26(a) guards against the presentation of sketchy and vague expert reports that provide little guidance to the opposing party as to an expert's testimony, Rule 702 guards against the presentation of insufficiently reliable evidence to the finder of fact."). Federal Rule of Evidence 702, which governs the admissibility of expert testimony, provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles ...

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