United States Court of Appeals
For the First Circuit
No. 10-1559
FRANK A. GAY, as Executor of the Estate of Anita Gay,
also known as Anita M. Gay,
Plaintiff, Appellant,
v.
STONEBRIDGE LIFE INSURANCE COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard, Circuit Judge,
and DiClerico,* District Judge.
Kevin Hensley, with whom Warren, Hensley & Bowen LLP was on
brief, for appellant.
Robert P. La Hait, with whom The McCormack Firm, LLC was on
brief, for appellee.
October 26, 2011
*
Of the District of New Hampshire, sitting by designation.
HOWARD, Circuit Judge. Plaintiff-Appellant Frank A. Gay
("Gay") appeals from the denial of a new trial in this insurance
coverage case. He argues that the district court erred when it
permitted a defense expert witness to present testimony claimed to
be beyond the scope of his expert report. There was a verdict for
defendant, Stonebridge Life Insurance Company ("Stonebridge").
Gay's motion was denied by the district court, and on appeal he
presents the same argument. After review, we affirm.
I. Background
Gay is the brother of the late Anita Gay ("Anita") and
executor of her estate. Her death occurred during a trip she took
to a casino in Lincoln, Rhode Island. While at the casino, Anita
fell. When medical personnel arrived to treat her, she was
unconscious and appeared to have suffered a head injury from the
fall. She was transported to a local hospital, but when her
condition deteriorated she was transferred to Rhode Island Hospital
in Providence. She died the next day.
The hospital records listed Anita's death as an accident,
and stated that she died as the result of a nonsurvivable closed
head injury that caused extensive bleeding in her brain. Her body
was released to the Rhode Island Office of State Medical Examiners
to determine a more precise cause of death. An autopsy was
performed by George Lauro, M.D., a forensic pathologist with that
office. The limited autopsy report that he prepared recorded the
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cause of death as "fractured skull with subdural and subarachnoid
hemorrhage following acute cerebral hemorrhage."1 The death
certificate prepared by Dr. Lauro reports the same cause of death.
The autopsy report stated that Anita's manner of death was an
"accident," from having "collapsed at race track."
Gay made a timely demand for payment of benefits under
three insurance policies issued to Anita by Stonebridge. Gay
sought to recover the amount due under the policies, plus payment
for one day of hospitalization, for a total of $150,500. Each of
the polices provided for payment only in the event of "accidental
death which was a direct and independent cause of death." In the
event of accidental death, the aggregate value of the policies
totaled $150,000, plus an additional $500 for each day of
hospitalization. Stonebridge denied the benefit based on its
conclusion that Anita's death was not "accidental" within the
meaning of the policies. It determined that the occurrence of a
stroke -- which likely caused the fall -- pushed her claim outside
the accidental death coverage of the policies.
Gay filed suit for breach of contract, arguing that
Anita's death was accidental as documented by the hospital records
and autopsy reports. Stonebridge countered that those records in
fact demonstrated that Anita did not die from an accident, but that
1
The parties agree that "acute cerebral hemorrhage" means
"stroke," as the latter term is commonly used.
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her death was caused primarily by the stroke that she suffered.
Stonebridge indicated that it intended to call an expert witness,
Dr. Paul Rizzoli, to testify that her death was attributable to the
stroke, and timely disclosed Dr. Rizzoli's report. See Fed. R.
Civ. P. 26(a)(2)(B). In relevant part, Dr. Rizzoli opined that:
It is difficult to be clear based on the
autopsy description, however, the amount of
bleeding described seems out of proportion to
that which could be expected on the basis of
trauma alone. . . . Cerebral hemorrhage can
range from unapparent to fatal in its
manifestations. Thus, it is difficult to
separate out which aspects of this situation
related to which issue. However, that
cerebral hemorrhage presented in this case
seems certain. . . .[I]t indeed is correct to
conclude that a preceding [stroke] did in fact
lead to unconsciousness, that as a result, the
patient fell sustaining a serious head injury,
and that the [stroke] was a contributing cause
of death.
(Emphasis added.)
The central issue in dispute was whether the
circumstances of Anita's death precluded coverage under the
policies. The insurance policies provided for coverage if the
death was caused by an accident "directly and independently of all
other causes," and denied coverage if the death was caused by an
injury "due to disease, bodily or mental infirmity, or medical or
surgical treatment of these."2 At the final pretrial hearing, the
2
One policy defined covered injuries as "accidental bodily
injuries sustained by the Covered Person which are the direct Cause
of the loss, independent of disease or bodily infirmity and
occurring while the Certificate is in force." The other provides
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court ruled that this policy language required Gay to prove that
the skull fracture resulting from the fall was "the direct cause of
[Anita's] death independent of any preceding medical condition;
that is, that the fall, as opposed to the stroke, was the 'dominant
cause' of her death."3 Because the evidence indicated that more
than one factor contributed to Anita's death -- the stroke and the
skull fracture -- Gay bore the burden of separating out the
consequential causes from the inconsequential causes of her death.
The court explained that if Gay proved the accident was
the prime or dominant cause of death -- even if an illness or
preexisting disease such as a stroke had contributed to the
accident -- he would be entitled to recover under the policies.
That ruling is not the subject of this appeal.
At trial, Gay argued that the head injury caused by
Anita's fall was the "dominant cause" of death. In support of this
claim, he presented the death certificate, the deposition
transcript of the coroner, Dr. Lauro, and the testimony of a
that covered injuries means an injury which: "(1) is caused by an
accident which occurs while this insurance is in full force under
the Policy; (2) results in Loss covered by the Policy; and (3)
creates a Loss due, directly and independently of all other causes,
to such accidental bodily injury."
3
The court based its "dominant cause" ruling on Vickers v.
Boston Mutual Life Insurance Company, 135 F.3d 179, 181 (1st Cir.
1998), and Jones v. Mountain State Telephone and Telegraph Company,
670 P.2d 1305, 1312 (Idaho Ct. App. 1983).
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neurologist, Dr. Matthew Gold. Each of these sources provided
evidence that the skull fracture was the cause of Anita's death.
In response, Stonebridge's expert, Dr. Rizzoli, opined
that the skull fracture contributed to Anita's death, but was not
"a major cause of death." He elaborated, testifying that the
"skull fracture as described doesn't seem like a mortal wound."
Gay moved to strike this testimony because Dr. Rizzoli had only
been asked whether the skull fracture had contributed to causing
Anita's death, not whether it had been a major cause of her death,
but the motion was denied. On cross-examination, Dr. Rizzoli
conceded that his report did not expressly indicate that the skull
fracture was not a mortal wound, or that the stroke was a major, as
opposed to a contributing, cause of Anita's death. Gay renewed his
motion to strike Dr. Rizzoli's testimony, which again was denied.
At the end of the trial, the jury returned a verdict in
favor of Stonebridge. Gay moved for a new trial pursuant to Fed.
R. Civ. P. 59(a), arguing that Stonebridge had failed to adequately
disclose Dr. Rizzoli's opinion prior to trial as required by Fed.
R. Civ. P. 26(a)(2)(B), which rendered Dr. Rizzoli's conclusion
that the skull fracture was not "a major cause" of death
inadmissable under Fed. R. Civ. P. 37(c)(1). The district court
denied the motion, finding that the conclusion had been adequately
presented in the report and that there was neither error nor
prejudice resulting from the admission of Dr. Rizzoli's testimony.
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Gay argues now that the testimony was erroneously
admitted and that, but for this error, he may have prevailed in
what he describes as "an extremely close case." He asserts that he
would have presented his case differently had he known that
Stonebridge intended to introduce live expert witness testimony
that the skull fracture was not the dominant cause of Anita's
death. In particular, he contends that rather than simply
rebutting Dr. Rizzoli's testimony by reading Dr. Lauro's deposition
transcript, he would have called Dr. Lauro as a witness to
supplement Dr. Gold's testimony.
II. Discussion
We review the admission of Dr. Rizzoli's testimony for
abuse of discretion.4 Peña-Crespo v. Puerto Rico, 408 F.3d 10, 14
(1st Cir. 2005). If we determine that the testimony was
erroneously admitted, we then review that admission for harmless
4
Stonebridge argues that our review should only be for plain
error because Gay failed to make timely and specific objections to
the admission of Dr. Rizzoli's testimony and so failed to preserve
them for appeal, citing Gaydar v. Sociedad Instituto Gineco-
Quirurgico y Planificación Familiar, 345 F.3d 15, 22 (1st Cir.
2003). We disagree. Gay moved to strike Dr. Rizzoli's testimony
when those remarks were elicited on direct examination, rendering
the objections timely. As for specificity, while Gay did not
initially articulate the precise nature of his objection, that was
at least in part because his sidebar request was denied. On
review, we find that the context in which his objections were made
sufficiently put the court and Stonebridge on notice of the grounds
for his objection. When Dr. Rizzoli admitted on cross-examination
that his report contained no opinion about the major cause of
Anita's death, Gay immediately renewed his motion to strike.
Certainly at that point, the specific nature of his objection was
made clear.
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error. Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d 472, 480
(1st Cir. 2000). "Our harmlessness inquiry is whether exclusion or
admission of the evidence affected plaintiff's substantial rights.
The central question is whether this court can say with fair
assurance that the judgment was not substantially swayed by the
error." Id. (quoting Lynch v. City of Boston, 180 F.3d 1, 15 (1st
Cir. 1999)).
A. Admission of Dr. Rizzoli's Testimony
A party seeking to introduce expert testimony at trial
must disclose to the opposing party a written report that includes
"a complete statement of all opinions the witness will express and
the basis and reasons for them." Fed. R. Civ. P. 26(a)(2)(B).
Failure to comply with that rule may preclude the party from,
"us[ing] that witness or relevant expert information to supply
evidence on a motion, at a hearing, or at trial, unless the failure
was substantially justified or is harmless." Esposito v. Home
Depot U.S.A., Inc., 590 F.3d 72, 77 (1st Cir. 2009) (describing how
violations of Fed. R. Civ. P. 26(a)(2) may implicate the sanctions
of Fed. R. Civ. P. 37(c)(1)) (quoting Fed. R. Civ. P. 37(c)(1))
(internal quotation marks omitted).
Though the baseline sanction for failure to comply with
Rule 26 is preclusion, preclusion "is not a strictly mechanical
exercise." Id. (quoting Santiago-Diaz v. Laboratorio Clínico y de
Referencia Del Este, 456 F.3d 272, 276 (1st Cir. 2006)). The
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district court has the discretion to choose a lesser sanction. Id.
at 77-78 (citing Laplace-Bayard v. Batlle, 295 F.3d 157 (1st Cir.
2002) to explain the district court's "broad discretion in meting
out . . . sanctions for Rule 26 violations," id. at 162). For
example, allowance of a continuance to permit greater preparation
for cross-examination of an expert may be appropriate. Newell
Puerto Rico, Ltd. v. Rubbermaid Inc., 20 F.3d 15, 22 (1st Cir.
1994).
Together Rules 26 and 37 operate to "prevent the unfair
tactical advantage that can be gained by failing to unveil an
expert in a timely fashion," Poulis-Minott v. Smith, 388 F.3d 354,
358 (1st Cir. 2004), and are designed "to facilitate a fair contest
with the basic issues and facts disclosed to the fullest practical
extent." Id. (quoting Lohnes v. Level 3 Commc'ns, 272 F.3d 49, 60
(1st cir. 2001)) (internal quotation marks omitted)).
Gay contends that Dr. Rizzoli exceeded the bounds of his
report when he testified that the skull fracture was not a major
cause of Anita's death because it was not a mortal wound.5 He
contends that this testimony was inconsistent with Dr. Rizzoli's
previous description of Anita's skull fracture as a "significant"
and "serious" injury. Gay submits that Dr. Rizzoli's report was
5
In fact, Gay concedes that Dr. Rizzoli testified as expected
to the extent that he said: Anita suffered a stroke, which caused
her to lose consciousness, which caused her to fall and fracture
her skull and, therefore, that the stroke was a contributing cause
of Anita's death.
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limited to the conclusion that the stroke was a contributing cause
of Anita's death, which implied nothing about the relative
significance of the skull fracture or the dominant cause of death.
To bolster this argument, Gay relies on Dr. Rizzoli's
statement that "it is difficult to separate out which aspect of
this situation related to which issue." Gay argues that Dr.
Rizzoli's testimony should have been limited to just opining that
the stroke contributed to Anita's death, nothing more. Gay claims
that when Dr. Rizzoli testified that the skull fracture was not a
major cause of death, he necessarily implied that "the stroke
[Anita] allegedly suffered was the dominant cause of her death."
Because that conclusion was never disclosed in the expert report,
Gay concludes, the district court erred in allowing this testimony.
The district court disagreed, finding that Dr. Rizzoli's
report adequately presaged his trial testimony and, therefore, that
Rule 26 was satisfied. The court determined that "Dr. Rizzoli's
report was sufficiently thorough 1) to indicate the general
boundaries of his direct examination and 2) to put the plaintiff on
notice that the stroke was the primary cause of Ms. Gay's death"
(emphasis added). After carefully reviewing both the expert report
and the trial testimony, we readily conclude that the district
court did not err in admitting Dr. Rizzoli's testimony, because it
fell within the scope of his previously disclosed report. Neither
the expert report nor the trial testimony are as limited as Gay
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claims. Dr. Rizzoli's expert report concluded, "to a reasonable
degree of medical certainty . . . that [Anita] suffered a cerebral
hemorrhage which led to unconsciousness and that this event led to
a fall with head injury." To support that conclusion, Dr. Rizzoli
cited Anita's preexisting hypertension, her reported nausea before
the events, which is symptomatic of deep brain hemorrhage, her
"significant injury," which suggested that she had lost
consciousness before falling, and the amount of bleeding in the
autopsy report, which seemed "out of proportion to that which could
be expected on the basis of trauma alone." The district court
summarized Dr. Rizzoli's report as containing at least three
relevant conclusions:
1) that cerebral hemorrhage presented in
this case seems certain;
2) the amount of bleeding described seems
out of proportion to that which could be
expected on the basis of trauma alone;
and
3) it is my opinion . . . that a preceding
hypertensive cerebral hemorrhage did in
fact lead to unconsciousness, that as a
result the patient fell sustaining a
serious head injury, and that the
hypertensive cerebral hemorrhage was a
contributing cause of death.
Gay focuses on the last portion of the third conclusion
-- that the hypertensive cerebral hemorrhage was a contributing
cause of death -- to argue that Dr. Rizzoli had no opinion about
whether the stroke was the dominant cause of Anita's death, but
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instead had only concluded that the stroke was a contributing cause
of her death. Gay's argument asks us to all but ignore the
information conveyed by the other conclusions. It is clear that
Dr. Rizzoli's opinion expressed in the report was that
fundamentally Anita suffered from a stroke. While his report
suggested that both the stroke and the skull fracture contributed
to Anita's death, and never explicitly stated that the stroke was
the dominant cause of death, Dr. Rizzoli's report clearly focused
on the stroke.6
Although his testimony uses different words than the
expert report, it was a reasonable elaboration of the opinion
disclosed in the report, that "the amount of bleeding described
seems out of proportion to that which would be expected on the
basis of trauma alone." See Muldrow ex rel. Muldrow v. Re-Direct,
Inc., 493 F.3d 160, 167 (D.C. Cir. 2007) (explaining how Rule 26
permits an expert to supplement, explain and elaborate on material
contained in his report); see also Thompson v. Doane Pet Care Co.,
470 F.3d 1201, 1203 (6th Cir. 2006) (same).
6
To the extent that Gay did not fully apprehend the
significance Dr. Rizzoli placed on the stroke, as compared to the
skull fracture, he could have deposed Dr. Rizzoli before trial to
clarify his opinion. See Poulis-Minott, 388 F.3d at 358
(explaining how expert disclosure enables the opponent to depose
the expert and conduct expert-related discovery); see also Fed. R.
Civ. P. 26(b)(4)(A) (allowing expert witnesses to be deposed). Had
Gay pursued these options, he may have realized that Dr. Rizzoli
intended to testify as he ultimately did or, alternatively, he may
have had cause to argue for a Rule 37(c)(1) sanction if Dr. Rizzoli
deviated substantively from his deposition testimony.
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We fail to see any abuse of discretion in the district
court's determination that, based on the expert report, Gay
reasonably could have anticipated Dr. Rizzoli's testimony and,
therefore, could not have been unfairly surprised to warrant
striking the challenged testimony. See Licciardi v. TIG Ins. Grp,
140 F.3d 357, 363-64 (1st Cir. 1998) (excluding expert witness
testimony when the expert has changed his opinion on an important
aspect of the case).
B. Harm
Because we conclude that the district court did not err
when it decided to admit Dr. Rizzoli's testimony, there is no need
to assess whatever harm that evidence allegedly caused. Still, we
agree with the district court's finding that Gay was not prejudiced
by any differences in Dr. Rizzoli's report and his testimony, given
all of the evidence of Anita's stroke. Gay in fact offset Dr.
Rizzoli's opinion with substantial evidence of his own, including
the opinions of two other doctors, the death certificate, the
autopsy report, and the records from both hospitals which treated
Anita following her fall, to support his position that Anita had
died from a "nonsurvivable closed head injury."7 Nor was there any
offer of proof that Dr. Lauro would testify as unequivocally as Gay
7
For example, during his cross examination of Dr. Rizzoli,
Gay's counsel countered with Dr. Lauro's opinion "that most of the
brain damage that contributed to the death was secondary to the
fracture rather than to the primary hemorrhage."
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hypothesizes. Given the totality of the evidence, including the
difficult credibility assessments that the jury necessarily
resolved, Dr. Rizzoli's testimony cannot reasonably be understood
as the pivotal evidence that tipped the verdict in favor of
Stonebridge. See Rubert-Torres, 205 F.3d at 480.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
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