Christol English v. DC, et al, No. 09-7150 (D.C. Cir. 2011)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on July 1, 2011.
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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 09-7150 September Term 2010 1:08-cv-01337-JR Filed On: August 26, 2011 Christol English, as Personal Representative of the Estate of Jason Taft, Appellant v. District of Columbia and Kevin McConnell, Detective, Metropolitan Police Department, in both his official and individual capacities, Appellees BEFORE: Rogers and Kavanaugh, Circuit Judges, and Williams, Senior Circuit Judge ORDER Upon consideration of appellant s petition for rehearing, it is ORDERED that the petition be denied. It is FURTHER ORDERED, on the court s own motion, that the opinion filed on July 1, 2011, be amended as follows: (1) Slip Op., p. 3, (a) lines 1-3, delete , in view of appellant s cross-examination of the expert after receiving the expert s interview notes, (b) line 5, delete is and insert in lieu thereof was and delete reversible error and insert in lieu thereof an abuse of discretion. (2) Slip Op., p. 7, first full paragraph (a) line 4, delete in and insert in lieu thereof on (b) line 5, insert 22, before 2009" (c) line 8, insert to reflect the October interview after the word government (d) line 10, delete he and insert in lieu thereof that in preparing the September 25, 2009 disclosure he had and delete in part (3) Slip Op., p. 8, first full paragraph United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 09-7150 September Term 2010 (a) line 23, delete and examination (4) Slip Op., p. 18, first full paragraph (a) line 11, insert on which he relied for his opinion in the September 25, 2009 report after the words FIT Report (b) line 12, delete the words and examination (5) Slip Op., p. 19, lines 4 and 6, delete the words and examination (6) Slip Op., p. 20, first full paragraph (a) lines 5-6, insert the words of September 25, 2009" after the word report and delete the words and examined and insert on October 22, 2009" after the word McConnell (7) Slip Op., p. 22 delete the first full paragraph and insert in lieu thereof Nonetheless, the district court did not abuse its discretion in declining to strike Dr. Restak s testimony, pursuant to Federal Rule of Civil Procedure 37(c)(1), because the government s failure to supplement its disclosure was harmless, see id. As was made clear through re-cross-examination, Dr. Restak had reached his opinion before he had interviewed Detective McConnell and the interview did not change that opinion. Appellant thus suffered no unfair prejudice. Upon learning of the interview during recross, appellant received Dr. Restak s notes from his interview of Detective McConnell, and reviewed them. Inasmuch as Dr. Restak s opinion was stated in the September 25, 2009 disclosure, appellant s questioning focused on the materials Dr. Restak had reviewed for that opinion and asked no questions concerning the interview. Moreover, assuming sanctionable conduct, the striking of Dr. Restak s entire testimony, as appellant sought, would have imposed a sanction that exceeded the discovery violation. See Outlet v. New York, 837 F.2d 587, 591 (2d. Cir. 1988); cf. Webb v. District of Columbia, 146 F.3d 964, 972 (D.C. Cir. 1998). On appeal, appellant does not suggest how the trial proceedings would have been different had there been a timely supplemental disclosure; and there is no basis from which to conclude that the Rule 26(a)(2)(E) violation affected appellant s substantial rights. Fed. R. Civ. P. 61; see Whitbeck, 159 F.3d at 1375. Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Jennifer M. Clark Deputy Clerk
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