Grivois v. Wentworth-Douglass Hospital CV-12-131-JL 1/28/14

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jeanne Grivois

v. Civil No. 12-CV-131-JL Opinion No.

Wentworth-Douglass Hospital and Gregory Walker

MEMORANDUM ORDER

The central question in the case, like in many employment

cases, turns on why the defendant fired the plaintiff--a question

of state of mind that, while it does not necessarily preclude the

remedy of summary judgment, see Fed. R. Civ. P. 56, calls for

"particular cautio[n]" in its application. Stepanischen v.

Merchants Despatch Transp. Co.,

(1st Cir.

1983). The record in this case, like the record in many

employment cases, is characterized by disputes over who said what

to whom, and when, as interested witnesses have given their

recollections of largely undocumented interactions that occurred

several years ago. None of that, though, has stopped the

defendant employer here--like the employer in many employment

cases--from moving for summary judgment, arguing that the

undisputed record evidence shows that it did not fire the

plaintiff for, as she claims, performing acts that public policy

would encourage. Specifically, the plaintiff, Jeanne Grivois, claims that the

defendant, Wentworth-Douglass Hospital, wrongfully terminated her

for engaging in acts that public policy would encourage--her

"expression of concern about Hospital policies which she believed

had created the potential of harm to Hospital patients"--in

violation of New Hampshire law. See Cloutier v. Great Atl, &

Pac, Tea Co.,

(1981). Grivois has also sued

the hospital's president and CEO, Gregory Walker, claiming that

he defamed her when he told surgeons who had worked with her that

she was "fired for engaging in a 'heinous act.'" The defendants

have moved for summary judgment on that claim, too, as well as to

exclude or limit the trial testimony of several of Grivois's

expert witnesses.

Grivois, for her part, has filed a motion to amend her

complaint, see Fed. R. Civ. P. 15(a)(2), seeking to add claims

based on Walker's statement and the statement of another hospital

employee who. Walker says, erroneously told him that Grivois had

been fired for threatening to publicly say that her supervisor is

gay (which the supervisor denies). This court has subject-matter

jurisdiction under

(a)(1) (diversity),

because Grivois is a citizen of Maine and Wentworth-Douglass and

Walker are citizens of New Hampshire.

2 Following oral argument, the defendants' motion for summary

judgment is denied, their motion to exclude or limit the

testimony of Grivois's designated expert witnesses is granted in

part and denied in part, and Grivois's motion to amend is denied.

In moving for summary judgment on Grivois's wrongful discharge

claim, the defendants argue that (1) her mere "'expressions of

concern' that changes in training or different staffing patterns

could create a potential risk to patient safety . . . were not,

as a matter of law, protected acts," (2) in any event, Grivois

lacks evidence that she was fired for expressing those concerns,

as opposed to the unrelated reason that the hospital gave for

firing her, and (3) Grivois likewise lacks evidence that she was

fired "out of bad faith, malice, or retaliation," which she must

also prove to prevail on her wrongful termination claim. Short v.

Sch. Admin. Unit Mo. 16,

(1992). As fully

explained below, see infra Part I.C.l, the court disagrees.

Based on the record evidence (much of which the defendants have

failed to address or glossed over in their briefing), a rational

jury could find that (1) public policy encouraged Grivois to

complain to her managers that their changes to training and

staffing procedures had endangered patient safety, (2) the

hospital fired Grivois for making such complaints, and (3) it

acted out of bad faith, malice, or retaliation in doing so. As

3 also fully explained below, the defendants are incorrect that

Walker's statement that Grivois had been fired for (as one

witness remembers the statement) "a heinous crime" was either

inactionable or privileged as a matter of law. See infra Part

I.C.2. The motion for summary judgment is denied.

Grivois's motion to amend is also denied, because, as fully

discussed below, she filed it several months after the applicable

deadline and has failed to show good cause for that delay. See

infra Part II. Finally, the defendants' motion to exclude or

limit the opinion testimony of Grivois's designated experts is

denied insofar as it is based on the alleged untimeliness of her

expert disclosures, see infra Part III.A, but is granted in part

and denied in part insofar as the motion argues that the opinions

are inadmissible, see infra Part III.B. The court will address

the various motions in turn.

I. Summary judgment

A. Applicable legal standard

Summary judgment is appropriate where "the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(a). A dispute is "genuine" if it could reasonably be

resolved in either party's favor at trial by a rational fact­

4 finder, and "material" if it could sway the outcome under

applicable law. See Estrada v. Rhode Island,

(1st Cir. 2010). Importantly, in deciding summary judgment, the

court "views all facts and draws all reasonable inferences in the

light most favorable to the non-moving" party.

B. Background

The facts relevant to the defendants' summary judgment

motion, set forth in the light most favorable to Grivois, are as

follows.1 Grivois began working for Wentworth-Douglass as a

'Invoking L.R. 7.2(b) (2), the defendants argue that all of the properly supported material facts set forth in their summary judgment memorandum are deemed admitted because Grivois has not "properly opposed" them in her opposition memorandum--a task which, in the defendants' view, reguired her to "identify . . . which of the [their] properly supported material facts [she] contends are either not material or are not disputed by her." Local Rule 7.2(b)(2), however, does not envision the non-movant's version of facts as a response to the movant's version; the rule reguires only that the opposition memorandum "incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists as to reguire a trial." In other words, L.R. 7.2(b)(2) simply directs the non-movant to "set forth, with specificity, her own version of the material facts," accompanied by citations to the record. Lagasse v. McLane/E., Inc., No. 12-CV-240, slip op. at 3 (D.N.H. Oct. 21, 2013). Grivois's summary judgment memorandum does so, and therefore complies with Local Rule 7.2(b) (2) . This is not to say that Grivois's summary judgment objection complies with all other rules applicable to those filings, most notably. Rule 56(c)(2), which reguires that "material submitted to support or dispute a fact . . . be presented in a form that would be admissible in evidence." While Grivois cites to certain admissible materials, such as depositions, affidavits, and

5 surgical technologist in 1976 and, by the time of the events

giving rise to this lawsuit, was acting as a "service

coordinator" for the hospital's general surgeons.

In 2009, Wentworth-Douglass hired Christine Hamill as its

assistant vice president of surgical and out-patient services, a

position that included oversight of the operating room ("OR").

Hamill, in turn, hired Dale Spracklin as the OR's nurse manager,

in or around June 2010.

1, Grivois's complaints to management

Hamill and Spracklin began to implement certain changes to

staffing procedures in the OR.2 One of these changes was to

interrogatory answers, she also repeatedly cites to her complaint--which is unverified--as evidence of the facts alleged. The allegations of an unverified complaint cannot be used to demonstrate a genuine issue of fact in opposing summary judgment. See. e.g., Fragoso v. Lopez,

(1st Cir. 1993). This deficiency is not cured, moreover, by Grivois's submission of an affidavit stating, in a single sentence, that "the information contained in [her summary judgment memorandum] is accurate to the best of [her] knowledge and belief." See F.D.I.C. v. Roldan Fonseca,

(1st Cir. 1986) (ruling that an affidavit "to the effect that the facts in a certain pleading are true to the best of affiant's 'knowledge and belief' . . . is in no way the evidentiary affidavit called for" by Rule 56). In its summary judgment analysis, then, this court has ignored Grivois's factual assertions insofar as they are supported only by citations to her complaint.

2Prior to Spracklin's arrival, Hamill made a change to the OR's on-call policy. Previously, employees over the age of 60 (including Grivois) had been exempt from "on-call" duty. Hamill discontinued that exemption. Grivois formally complained to the

6 relax the training required for new OR staffers. Previously, a

new staff member could fully assume independent duties in the OR

only after completing three months of training and convincing the

"operating room educator," Cindy Wyskiel, that the new hire was

ready for that responsibility. If, based on feedback from more

experienced staffers, Wyskiel determined otherwise, then the new

staffer was not left alone to perform tasks for patients in the

OR until he or she demonstrated the necessary proficiency. After

Hamill took over, however, new staffers were given sole

responsibility over those tasks solely by virtue of completing

the three-month training period.

Grivois says that this led to several situations where

patients were unnecessarily exposed to the risk of harm. She

recalls one case of a laparoscopic abdominal surgery in which a

new staff person could not readily identify an instrument that

the surgeon had requested (a hemoclip), resulting in an

human resources department about this change, which she believed was "a safety issue" (though her formal complaint did not say that). While the complaint in this action mentions that, prior to her firing, Grivois voiced a concern that "at [her] age, being on-call put her at risk for performing her duties with less than adequate competence," she testified at her deposition that she did not believe that the "primary reason" she was fired was that she "complained about being on call," and that she did not believe that her formal complaint played "any part" in her termination. In ruling on summary judgment, then, the court has not considered any theory that Grivois was fired for complaining about the change to the on-call policy.

7 interruption to the procedure and, ultimately, the need to remove

the laparoscope so that blood could be cleared. Grivois says

that this delay could have increased the potential for infection

and tissue morbidity and that "[u]nder the former training

procedure, the experienced staff person with whom [the new hire]

would have been paired would have prevented this unnecessary

delay." Grivois recalls that, in another case, a new staff

member incorrectly positioned the cautery device, causing its

foot pedal to jam underneath the operating table so that the

device malfunctioned--which occasioned several minutes' delay as

the cautery unit was reactivated. Grivois also recalls another

incident in which a new staff member improperly repositioned an

obese patient for a procedure, risking nerve damage.

At her deposition, Grivois said that she raised her concerns

about the orientation of new staff--specifically, "the fear that

something was going to happen to a patient"--to Wyskiel on

"several" occasions. Grivois also testified that she also raised

the issue "10, 12, multiple times" with Spracklin, as well as

during "a long talk" with Hamill in the late spring of 2010. In

addition, in her answers to the defendants' interrogatories,

Grivois states that she told Spracklin "about all of the dangers

that [Grivois] witnessed at [her] yearly evaluation," which took

place in or around September 2010.

8 Another change that Hamill and Spracklin had started to

implement, in the fall of 2010, was to introduce a system called

"PODS" (an acronym for "professional of designated speciality").

Under this system, each OR nurse works in just a few specific

surgical specialities. This focus, in theory, enables the nurse

to better familiarize himself or herself with the procedures

common to those specialties. This differs from a more

traditional staffing model, in which each nurse is expected to

assist with all types of surgery, rather than specializing.

At her deposition, Grivois testified that she "saw flaws in

the POD system which [she] stated to" Hamill and Spracklin,

telling them that it was "a patient safety issue." Under the

PODS regime, as Grivois states in her answers to the defendants'

interrogatories, a surgeon "would train people who would then not

be in his [operating] room [assisting] for a long time, then he

would train more people[,] then when the original people rotated

back into his room, they had totally forgotten what he had taught

them." Grivois states that "[t]his is not good patient care"

because "[i]nexperienced staff make more mistakes." In addition,

Grivois states, "[t]he service coordinators are not there" to

9 guide the inexperienced staff because they "are in other rooms

doing other POD services."3

2. Grivois's suspension and firing

In September 2010, Hamill and Christ! Blanchard, who held

the title of "Human Resource Recruitment and Retention Officer"

at Wentworth-Douglass, informed Spracklin that two nurses who had

recently left the hospital's employ had complained about Grivois

during their exit interviews. These nurses had said that

"Grivois was mean to them, did not support the OR staff, and was

an overall bad influence in the OR." Spracklin spoke to both of

the nurses, who generally repeated the substance of what they had

said in their exit interviews.

In an affidavit submitted with Grivois's objection to the

summary judgment motion, Spracklin explains that she "found it

easy to believe that people were guitting based on inappropriate

behavior by Ms. Grivois," because, among other reasons, Hamill

and Blanchard had told Spracklin that "Grivois had a reputation

3In her interrogatory answers, Grivois describes an incident where she and another coordinator were both assisting with a gynecological procedure, leaving a different surgeon to prepare for another procedure with the help of "3 or 4 new people who had no idea how to position [the] patient for surgery." As a result, Grivois says, "the patient was unnecessarily repositioned multiple times, putting the patient under physical stress," which "could have been avoided by having a [general surgery] coordinator," such as Grivois, present.

10 for being a disruptive employee and there were perhaps multiple

written warnings in her personnel file." In fact, Spracklin

attests, Hamill and Blanchard "led [her] to believe that Ms.

Grivois' complaints about the implementation of the POD system

were just more examples of her disruptive behavior. I was told

that I should 'get rid of her.'"4 Spracklin further attests that

Hamill and Blanchard told her, after Spracklin began working at

Wentworth-Douglass in June 2010, that she "would have difficulty

in implementing changes," due in part to certain employees who

"would be reluctant to change." Hamill and Blanchard identified

Grivois as "one of those 'trouble' employees."

4At oral argument, the defendants maintained that this statement from Spracklin's affidavit--"! was told that I should just get rid of her"--failed to show that it was Hamill or Blanchard who had told Spracklin that, presumably because the statement is couched in the passive voice. As just discussed, though, the surrounding paragraphs of Spracklin's affidavit specifically identify Hamill and Blanchard as the source of other critical comments about Grivois, so it is at least reasonable to read the statement as identifying the same people as the source of the advice to "just get rid of her." Again, the court must view the summary judgment in the light most favorable to Grivois, giving her the benefit of all reasonable inferences. See Part I.A, supra. It is also worth noting that the defendants had a copy of Spracklin's affidavit prior to her deposition, so they could have used that opportunity to ask her to clarify her statement, in hopes of eliminating a potential issue of fact. But they did not do so, at least in any portion of Spracklin's deposition that has been submitted to the court. While the defendants were of course entitled to leave the record as it stood on this point, it is the court's view that, on the record as it stands, the "just get rid of her" comment is fairly attributable to Hamill or Blanchard.

11 Spracklin (with the assistance of Hamill and Blanchard)

took formal disciplinary action against Grivois, in the form of a

"Level II Warning," based on the outgoing nurses' complaints. At

a one-on-one meeting in November 2010), Spracklin presented

Grivois with the warning, but she refused to sign it. In

disputing the accuracy of the nurses' complaints, Grivois told

Spracklin, according to Spracklin's affidavit:

I shouldn't believe everything that I heard from OR staffer members. She then commented that I should hear what OR staff members said about me.

I asked her what was being said. She replied that others had said: that I had been fired from my last job, that I was going through a divorce, and that I was gay.

Spracklin assured Grivois that these stories were untrue.

Spracklin then told Hamill what Grivois had said. On the next

working day, Grivois apologized to Spracklin, who said she would

be making a formal complaint about Grivois's comments.

To do so, Spracklin met with Erin Flanigan, the vice

president of human resources at Wentworth-Douglass, on November

19, 2010. Flanigan, in turn, notified Grivois of Spracklin's

complaint. When Flanigan met with Grivois, she admitted to

making the inappropriate comments to Spracklin. Flanigan

notified Grivois that she was being suspended.

12 On November 22, 2010, Hamill and Flanigan presented Grivois

with written notice that, "[biased on [their] investigation of

the recent complaint lodged against [her] and [her] admission of

said complaint," Grivois was immediately suspended without pay

until December 13, 2010, and relieved of her role as the service

coordinator for general surgery (she was reassigned to

orthopedics). She was also warned that "[i]f improvement in

these areas does not occur, further disciplinary action, up to

and including termination, may occur." Grivois objected that the

punishment was too harsh, and refused to sign the notice, asking

for time to decide how to respond. After Flanigan agreed to give

Grivois a week, Hamill left the room, and Flanigan asked Grivois

whether she would talk to Spracklin. Grivois agreed.

After Spracklin entered, she told Grivois that she was being

moved from her position in general surgery to orthopedics, but

that "we're going to try to work things out." What happened next

is a matter of some dispute. Flanigan has testified that Grivois

"moved forward to the edge of her chair and actually leaned

forward to" Spracklin to express "disagreement with the process

around the Level II Warning" (which, as just discussed, had

resulted from the complaints the two outgoing nurses had made

about Grivois). In response, Flanigan recalls, Spracklin "got

flustered, was actually sitting back, had a flushed face and was

13 kind of looking at [Flanigan] very deer-in-the-headlights." So

Flanigan "stopped the conversation," because "in the course of a

conversation where her manager was trying to get the employee

focused on the future, it became clear . . . that this was not an

employee who was open to hearing feedback from" Spracklin.

Spracklin's account of the meeting is that "obviously

[Grivois] was upset" and "defensive" at the loss of her role as

the service coordinator for general surgery, and "folded [her]

arms and sighed," but that "[t]he discussion was not heated" and

that neither woman "became argumentative." Grivois, for her

part, testified that she told Spracklin, "I would admit to

something I did if I did it, but I didn't know what she said that

I did . . . . I needed to see the complaint." Grivois stated

that, in giving that message, she "used some hand motion" and may

have been "leaning forward" but did not raise her voice. Grivois

further recalled that Spracklin "didn't seem flustered." In

fact, Grivois testified, after Flanigan "stopped the conversation

and said this is going nowhere," Grivois asked Flanigan, "was I

unprofessional in my demanor to [Spracklin] at all?" and Flanigan

said "no, you weren't."

In any event, Flanigan ended the meeting. She then called

Hamill and reported that Grivois "was not interested in improving

her interpersonal relations with [Spracklin] or with people

14 generally, and so it was [Flanigan's] recommendation that

[Wentworth-Douglass] consider termination." Hamill agreed, and

decided to fire Grivois. Spracklin was not consulted further.

On November 23, 2010 (the day after Grivois's meeting with

Flanigan and Spracklin) , Hamill and Flanigan notified Grivois

that she was being terminated due to, as Grivois recalls it, her

"failure to move on with [her] supervisor," Spracklin.

Following Grivois's termination, some of the surgeons with

whom she had worked approached Walker, Wentworth-Douglass's CEO,

seeking to learn why Grivois had been fired. In a series of

meetings that followed. Walker responded, initially, that he

would not discuss the specific reasons for one employee's

termination with the hospital's other employees. Eventually,

though. Walker stated--according to one of the surgeons who was

there--that Grivois had "performed a heinous crime."5 Walker did

not further elaborate, but has since explained, at his deposition

in this case, that he thought when he made that statement that

Grivois had been fired because she threatened "[t]o go public

with the fact that [Spracklin] had an alleged affair with another

5Other witnesses recalled that Walker had used the phrase "heinous act"--which is also what Grivois, in her complaint in this action, accused Walker of saying. Again, though, this court must take the record in the light most favorable to Grivois.

15 employee" at the hospital where she worked prior to taking her

job at Wentworth-Douglass.

C. Analysis

1. Wrongful termination

"In order to prevail on a wrongful termination claim under

New Hampshire law, a plaintiff must establish two elements: one,

that the employer terminated the employment out of bad faith,

malice, or retaliation; and, two, that the employment was

terminated because the employee performed acts which public

policy would encourage or refused to perform acts which public

policy would condemn." Straughn v. Delta Air Lines, Inc.,

(1st Cir. 2001) (quotation marks, bracketing, and

ellipses omitted). The defendants argue that they are entitled

to summary judgment on Grivois's wrongful termination claim

because she cannot show a genuine issue of material fact as

either of these elements. Specifically, the defendants argue

that Grivois lacks sufficient proof:

(a) that she performed any act that public policy would encourage;

(b) even if she did, that Wentworth-Douglass fired her for performing that act, instead of for her conduct at the meeting with Flanigan and Spracklin, in November 2 010; and

(c) that, whatever the conduct that prompted Grivois's termination, it was motivated by the bad faith,

16 retaliation, or malice, as also necessary to give rise to a wrongful termination claim.

For the reasons explained below, this court disagrees, and rules

that Grivois has presented a triable claim for wrongful

termination.

a. Acts that public policy would encourage

As noted at the outset, Grivois alleges that she was fired

for her "expression of concern about Hospital policies which she

believed had created the potential of harm to Hospital patients."

In moving for summary judgment, the defendants do not dispute

that Grivois generally expressed such concerns--instead, they

argue that "diffuse 'expressions of concern' that changes in

training or different staffing patterns could create a risk to

patient safety, without any basis in established minimum

standards or regulations to support that claim, were not, as a

matter of law, protected acts." This court disagrees with the

defendants' characterizations of both what Grivois did, as a

matter of fact, and what an employee is reguired to do, as a

matter of law, to give rise to a wrongful termination claim.

To start with, neither the New Hampshire Supreme Court nor

this court has ever held that an employee's complaints about

safety risks caused by her employer's operations are "protected

acts" only if those risks result from the violation of

17 "established minimum standards or regulations." C f . Bruning v.

D.E. Salmon, Inc., No. 03-352,

, at *2-*3 (D.N.H.

Dec. 18, 2003) (denying motion to dismiss wrongful termination

claim for the lack of a cognizable public policy where the

plaintiff alleged he was fired for complaining about unsafe

behavior in the workplace, without discussing whether that

behavior violated established standards or regulations); Brewer

v. K.W. Thompson Tool Co.,

(D.N.H. 1986)

(similar). To the contrary, "[p]ublic policy exceptions giving

rise to wrongful discharge actions may [] be based on

non-statutory policies" and determining "[t]he existence of a

public policy [] calls for the type of multifaceted balancing

process that is properly left to the jury in most instances."

Cloutier,

.

So far as this court can tell from the existing

pronouncements of the New Hampshire Supreme Court, this

"multifaceted balancing process" does not impose absolute

requirements, such as the one the defendants propose. The

defendants make no attempt to reconcile established New Hampshire

law with their view that public policy encourages complaints

about workplace safety only when those complaints concern

violations of "established minimum standards or regulations."

18 Instead, the defendants rely on case law rejecting wrongful

termination claims under Massachusetts law. But, while

Massachusetts law provides "a cause of action for wrongful

discharge if the discharge is contrary to public policy," DeRose

v. Putnam Mgmt. Co.,

(Mass. 1986),

Commonwealth law in this area differs from that of this state in

at least one crucial respect. As Grivois points out,

Massachusetts recognizes "a cause of action for wrongful

termination only if the termination violates a clearly

established public policy," and "has consistently interpreted the

public policy exception narrowly." King v. Driscoll,

(Mass. 1994) (emphasis added).

Thus, Massachusetts courts have generally restricted

wrongful termination claims to "employees who are terminated for

asserting a legal right, for doing what the law requires, or for

refusing to disobey the law," and to a few other "reasons for

terminations which would directly contradict well-defined public

policies of the Commonwealth." Upton v. JWP Businessland,

(Mass. 1997) (parentheticals omitted). The

New Hampshire Supreme Court, in contrast, has explicitly refused

to limit wrongful termination claims to firings that implicate "a

strong and clear public policy," and, again, has left identifying

19 the existence of a public policy to juries applying a

"multifaceted balancing process," Cloutier,

.®

In light of this important difference between the Massachusetts

and New Hampshire doctrines of wrongful termination, this court

is not persuaded by the Massachusetts decisions that the

defendants have cited in support of their summary judgment

motion, even though two of those cases arose out of circumstances

quite similar to those presented here. See Wright v. Shriners

Hosp. for Crippled Children,

(Mass. 1992); Smith-

Pfeffer v. Superintendent of Walter E. Fernald State Sch., 533

N .E .2d 1368 (Mass. 1989).

Like Grivois, the plaintiff in Wright provided patient care

in a hospital, as a nurse, and claimed that she had been

wrongfully terminated "in retaliation for her having criticized

the hospital, specifically in regard to the quality of care

rendered to patients, to [its] national headquarters survey

team." 589 N.E,2d 1243-44. Rejecting that claim, the Supreme

Judicial Court held, as a matter of law, that firing the

plaintiff for such remarks "would not have violated public

®Indeed, in so holding, the court rejected the opinion of a dissenting justice that "an employee at-will may be discharged with or without cause, unless he identifies a specific expression of clear public policy." Cl.outierf

(Bois, J., dissenting).

20 policy,"

relying heavily on the absence "of any statute that

clearly expresses a legislative policy to encourage nurses to

make the kind of internal report involved in this case," id. at

1244. But, as just discussed, the public policy supporting a

wrongful termination claim under New Hampshire law does not

require a statutory source, let alone one that "clearly

expresses" the policy in guestion, see Cloutier,

, so Wright provides little guidance here.

The same is true of Smith-Pfeffer, the case of a medical

director at a state school for the mentally disabled who claimed

she was wrongfully terminated after she criticized plans to

reorganize the school in a way that would "compromise service

delivery to the residents." 533 N.E.2d at 1370. In affirming a

directed verdict for the school, the court noted that the

plaintiff did not claim that her actions fit within any of the

limited categories of conduct (listed above) that can support a

wrongful discharge claim under Massachusetts law, and refused to

recognize a public policy protecting employees for "performing

appropriate, socially desirable duties." Id. at 1371. Again,

New Hampshire takes a more flexible view of the public policies

that can ground a wrongful termination claim and, in any event,

Grivois does not claim that she was fired merely for "performing

appropriate, socially desirable duties."

21 Rather, Grivois says that she was fired for complaining

about new Wentworth-Douglass "policies which she believed had

created the potential of harm to Hospital patients." The

defendants do not question that, applying New Hampshire law, a

rational fact-finder could conclude that public policy encourages

an employee at a hospital or similar facility to raise concerns

about risks to patient safety. In fact, the defendants agree

that such a policy could be found to exist, so long as the risks

"pose a direct or imminent threat to patient safety." Again,

though, the defendants do not provide any New Hampshire case law

that imposes such a limitation, or any analogous one, on the

kinds of public policy that can support a wrongful termination

claim, and, once again, their suggestion is at odds with the

"multifaceted" approach adopted in Cloutier.

But even assuming, for the sake of argument, that New

Hampshire law imposes this highly specific requirement, Grivois

meets it, at least when the summary judgment record is taken in

the light most favorable to her. As discussed supra, Grivois

testified that she "saw flaws in the POD system which [she]

stated to" Hamill, telling her that it was "a patient safety

issue." Grivois also testified that she raised her "fear that

something was going to happen to a patient" as a result of the

22 relaxed training requirements during "a long talk" with Hamill.7

Despite the defendants' urging, this court is unwilling to

characterize an employee's warnings that inadequate training or

staffing in a hospital operating room could result in physical

harm to a patient as presenting a safety threat that is

insufficiently "direct" or "imminent" to implicate public policy

as a matter of law.

In this court's view, then, this case does not raise the

potential problem--identified by the Massachusetts Supreme

Judicial Court in Wright--of wrongful discharge claims by health

care workers who fail to define their protected conduct any more

specifically than "reporting on issues they feel are detrimental

to health care."

. Again, the summary

judgment record permits the conclusion that, at a minimum,

Grivois told Hamill of specific training and staffing policies

'Grivois also attests that, at her evaluation in September 2010, she told Spracklin "about all of the dangers that [Grivois] witnessed," including, as discussed above, three specific incidents where a patient was exposed to an additional risk of complications due to the inadequate training of OR staff following the changes put in place by Hamill and Spracklin. The summary judgment record arguably supports a reasonable inference that Grivois also referenced those incidents during her "long talk" with Hamill, but the court need not decide that because, as just explained, a jury could conclude that public policy encouraged Grivois to complain to Hamill that the changes in OR staffing and training threatened patient safety, even if Grivois did not provide examples of cases where that had happened.

23 that had jeopardized patient safety. That is sufficient to

create a triable issue as to whether Grivois engaged in conduct

that public policy would encourage under New Hampshire law.

The defendants also suggest that Grivois's wrongful

termination claim fails precisely because it is premised on her

complaints about changes to OR training and staffing policies,

since "an employee's disagreement with management decisions,

including those involving the implementation or enforcement of

internal policies, is not, without more, protected by public

policy." Here, however, there is "more," because (at least on

one permissible view of the evidence) some of the "management

decisions" and "internal policies" at issue put patients at

greater risk of complications, which was the reason Grivois gave

for voicing her disagreement with them.

That fact, which a rational jury could find, distinguishes

this case from those where New Hampshire courts have rejected

wrongful discharge claims premised on an employee's mere

expression of disagreement with managerial or organizational

decisions. See, e.g., MacKenzie v. Linehan,

(2009) (deputy's disagreement with sheriff over whether deputy

had violated department policy during a drunken off-duty

encounter with a civilian); Short,

(educational

consultant's disagreement with school board's criticism of the

24 superintendent). Unlike in those (and similar) cases, Grivois's

wrongful discharge claim is not that public policy encouraged her

to disagree with her supervisors' decisions, but that public

policy encouraged her to inform her supervisors of her concerns

that those decisions endangered the safety of others. Because a

rational jury could so find, the defendants' motion for summary

judgment is denied insofar as it argues that Grivois took no

action that public policy would encourage.

b. Causal connection

To prevail on her wrongful termination claim, Grivois must

prove not only that she engaged in acts that public policy would

encourage, but also that Wentworth-Douglass fired her because of

those acts. See, e.g.. Short,

. The defendants

argue that Grivois cannot create a genuine issue of fact as to

whether she was fired for raising concerns that the training and

staffing changes in the OR were jeopardizing patient safety.

Instead, they argue, the record permits only one conclusion as to

why Grivois was fired, i.e., her behavior toward Spracklin at the

meeting with Flanigan in November 2010. The court disagrees.

First, and most importantly, the defendants ignore

substantial record evidence tending to show a causal connection

between Grivois's allegedly protected conduct and her firing,

viz., Spracklin's affidavit. Spracklin attests that Hamill--who

25 ultimately made the decision to fire Grivois--"led [Spracklin] to

believe that Ms. Grivois' complaints about the implementation of

the POD system were just more examples of her disruptive

behavior" and that Spracklin "should 'get rid of her.'"

Spracklin also recalls that Hamill described Grivois as "trouble"

due to her "reluctan[ce] to change" (as already discussed,

Grivois testified that she had complained to Hamill in the spring

of 2010, before Spracklin's arrival, that the change to the

training reguirement had endangered patient safety) . This

testimony suggests that Hamill wanted to fire Grivois for her

complaints about changes to OR training and staffing procedures,

i.e., the relaxed training reguirements and the PODS system.

Second, the defendants assert that "neither Hamill nor

Flanigan, the sole decision-makers with respect to Grivois'[s]

termination, had received any complaints from [her] of any

actual, direct or imminent threats to patient safety which [she]

attributed to . . . changes in policy regarding staffing or

training of OR staff." While that may be accurate as to Flanigan

(a point the court need not decide at present), it is not

accurate as to Hamill, as already discussed. See Part I.C.l.a,

supra. So, while a plaintiff cannot recover on a wrongful

discharge claim without proof that those involved in the decision

to fire her knew of her allegedly protected acts, see Rowe v .

26 Liberty Mut. Ins. Co.,

, appeal docketed. No.

13-2506 (1st Cir. Dec. 10, 2013), Grivois has such proof here.

Third, though the defendants try to suggest otherwise, there

are material factual disputes as to Grivois's behavior toward

Spracklin at the meeting, and Spracklin's reaction to it.8 While

Flanigan recalls that Spracklin became visibly "flustered" as a

result of Grivois's tone and body language, Grivois maintains

that Spracklin "didn't seem flustered," and Spracklin herself

says that the discussion never became "heated" or

"argumentative." Moreover, Grivois has testified that, after

Flanigan decided to end the meeting because it was "going

nowhere," Grivois asked Flanigan, "was I unprofessional in my

demanor to [Spracklin] at all?" and Flanigan said "no, you

weren't." Yet Flanigan later decided to recommend to Hamill that

Grivois should be fired for the way she behaved toward Spracklin

in the meeting.

8The defendants also argue at length that Grivois has not denied making the comments to Spracklin, earlier in November 2010, which, among other things, questioned her sexual orientation. As the defendants emphasize, however, Grivois was not fired for making those comments (she was suspended), so her "admission" that she did so is immaterial as to whether a genuine dispute exists over why she was fired. The defendants' additional point that "[h]ad [Wentworth-Douglass] intended to use [those] remarks to [Spracklin] as a pretextual reason to terminate [Grivois], it would have [done] so" is, self-evidently, just one permissible inference to draw from the sequence of events leading up to her termination.

27 Viewing the record in the light most favorable to Grivois,

then, a rational jury could conclude that she did not in fact

behave unprofessionally or inappropriately toward Spracklin at

the November 20 meeting. A finding that Grivois did not engage

in the behavior that her employer cited in firing her, of course,

raises a genuine issue of fact as to whether the real reason for

her termination was her protected activity--at least where, as

here, there is additional evidence to that effect, viz., Hamill's

statements to Spracklin. C f . Cook v. CTC Commc'ns Corp.,

, 19-20 & 34-35 (denying summary judgment for defendant on

a wrongful termination claim based on evidence that, after

plaintiff raised concerns over company practices to the human

resources director, the human resources director told the CEO

that the plaintiff should be fired, which tended to show that the

stated reason for firing the plaintiff was pretextual).

The defendants are not entitled to summary judgment based on the

absence of a causal connection between Grivois's allegedly

protected acts and her termination.

c. Bad faith, retaliation, or malice

Finally, the defendants argue that no rational jury could

conclude that Grivois was terminated "out of bad faith, malice,

or retaliation," which she also must show to prevail on her

wrongful discharge claim. Straughn,

. This

28 argument suffers from the same flaws as the defendants' challenge

to Grivois's proof of a causal connection between her protected

acts and her firing, and fails for essentially the same reasons.

Again, the defendants do not address Spracklin's testimony

that Hamill had identified Grivois as a "disruptive" employee

whom, based on her complaints about the PODS system, Spracklin

should "just get rid of."9 Nor do the defendants address

Grivois's version of her meeting with Spracklin and Flanigan,

which, as just discussed, does not square with the reason the

defendants have given for terminating Grivois--in that, among

other things, Flanigan assured Grivois at the end of the meeting

that she had not acted unprofessionally toward Spracklin. As the

defendants acknowledge, an inference of bad faith or malice can

arise when "the record does not support the stated reason for the

discharge."

Accordingly, a reasonable jury could find that

Wentworth-Douglass terminated Grivois out of bad faith.

9Instead, the defendants argue at length that Grivois cannot show that she "was terminated for pursuing policies condoned by her employer," nor that she was subjected to "disparate treatment." While "[b]ad faith or malice on the part of the employer may be established under New Hampshire law where an employee is discharged for pursuing policies condoned by the employer . . . or disparate treatment was administered to a similarly situated employee," Straughn,

(numbering omitted), those are not the only ways to show the bad faith or malice necessary to prevail on a wrongful termination claim. To the contrary, "[b]ad faith or malice comes in various forms." Antonis v. Elecs. for Imaging, Inc.,

.

29 retaliation, or malice. The defendants' motion for summary

judgment on the wrongful discharge claim is denied.

2. Defamation

"Typically, a plaintiff proves defamation by showing that

the defendant failed to exercise reasonable care in publishing a

false and defamatory statement of fact about the plaintiff to a

third party, assuming no valid privilege applies to the

communication." Thomas v. Tel. Publ'g Co.,

, 321

(2007) (quotation marks omitted). Grivois claims that Walker,

the Wentworth-Douglass CEO, defamed her when he told some of her

former colleagues that she had been fired because she "performed

a heinous act"--and, as noted above, one witness to Walker's

statement recalls that he said Grivois "performed a heinous

crime." See note 5 and accompanying text, supra. In moving for

summary judgment on that claim, the defendants argue that, as a

matter of law, Walker's statement was (a) not a statement of

fact, but an inactionable statement of opinion, (b) protected by

a qualified privilege, and (c) not the source of any recoverable

damages, in any event. The court disagrees, and rules that

Grivois has presented a triable defamation claim.

First, even "[a] statement couched as an opinion . . . can

be actionable," so long as it "presents or implies the existence

30 of facts which are capable of being proven true or false."

Levinsky's, Inc. v. Wal-Mart Stores, Inc.,

(1st

Cir. 1997) (applying Maine law); see also, e.g.. Gray v. St.

Martin's Press, Inc.,

(1st Cir. 2000) (applying

New Hampshire law). The defendants argue that Walker's statement

contains no such "objectively verifiable assertion."1®

"Whether a given statement can be read as being or implying

an actionable statement of fact is itself a question of law to be

determined by the trial court in the first instance, considering

the context of the [statement] as a whole." Nash v. Keene Publ'g

Corp.,

(1985) (citation omitted). Here, after

being asked by Grivois's former co-workers to explain why she had

been fired. Walker at first refused to discuss the subject, but

then said (at least according to the account of one witness) that

10The defendants premdse this argument on their version of Walker's statement, i.e., that Grivois "performed a heinous act." Again, though, one witness gave a version of that statement which is more favorable to Grivois's defamation claim, i.e., that she "performed a heinous crime," and it is that version which this court must accept in ruling on summary judgment. See Part I.A, supra. Contrary to the defendants' suggestion at oral argument, this court cannot disregard that account of Walker's statement because, as they put it, that witness "has an agenda" (an accusation which, this court suspects, fits many of the witnesses here to one degree or another) or because the other witnesses to Walker's statement recalled it differently. "Of course, the ground rules of summary judgment leave no room for credibility determinations [and] no room for the measured weighing of conflicting evidence." Rodriguez v. Municip. of San Juan,

(1st Cir. 2011) (quotation marks omitted).

31 Grivois had "performed a heinous crime." While a less literal

reading is perhaps possible, this statement, on the face of it,

amounts to factual assertion that Grivois had been fired for

breaking the law in a serious way.11 Because "an average

[listener] could reasonably understand [Walker's] statement as

actionable defamation, then[,] there is an issue for the jury's

determination, and summary judgment must be denied."

.

Second, the defendants have not even pointed to record

evidence sufficient to support their qualified privilege

argument, let alone shown that the evidence is undisputed on that

point. New Hampshire recognizes a qualified privilege for

otherwise defamatory statements "if the facts, although untrue,

were published on a lawful occasion, in good faith, for a

“ It is also worth noting that, despite the defendants' argument that "[w]hether an act or statement performed by another individual is 'heinous' . . . cannot be objectively verified or disproved," they also assert that "Walker's characterization of [Grivois's] remarks [to Spracklin] was substantially true." Obviously, a statement cannot be both objectively unverifiable and objectively true, and this inconsistency significantly hinders the defendants' attack on the defamation claim. C f . Ark. Pub. Emp. Ret. Sys. v. GT Solar Int'l, Inc.,

(noting the inconsistency in defendants' arguments that allegedly fraudulent statements were both "inactionable puffery" and "accurate statements of historical fact"). Insofar as the defendants are arguing for summary judgment on the ground that Walker's statement was "substantially true," that argument is a non-starter, since there is no evidence that Grivois committed a crime of any severity, let alone that such a transgression played any role in her firing.

32 justifiable purpose, and with a belief, founded on reasonable

grounds of its truth, provided the statements are not made with

actual malice." Simpkins v. Snow,

(1995)

(quotation marks omitted). Here, among other shortcomings, the

defendants have not identified any evidence that Walker's

statement that Grivois was fired for a "heinous act" was "founded

on reasonable grounds of its truth." To the contrary, the

defendants acknowledge that Walker believed— erroneously,

according to the undisputed record evidence--that Grivois "had

threatened to go public with the fact that her supervisor had an

alleged affair with a female employee at [her former]

institution, but that Walker "does not recall who told him that

Grivois had threatened to use the information against Spracklin."

Even on the defendants' version of the facts, then, there is a

genuine issue (at best) as to whether Walker's stated belief that

Grivois had been fired for a "heinous act" was "founded on

reasonable grounds of its truth, " as necessary to support a

qualified privilege.

Moreover, taking the facts in the light most favorable to

Grivois, there is nc> evidence that Walker could have reasonably

believed that Grivois was fired for a "heinous crime" because,

again, there is no evidence that he even believed Grivois had

done anything remotely illegal. The defendants are not entitled

33 to summary judgment on this basis. See Chamberlin v. 101 Realty,

Inc.,

(D.N.H. 1985) (denying defendant's

motion for summary judgment on a defamation claim given a genuine

issue as to "the existence of [his] good faith reasonable belief"

in the accuracy of his defamatory statement).

Third, and finally, the defendants' argument that Grivois

cannot prove that Walker's statement caused her any damages, even

if accurate, is beside the point. "When[,] as in this case, the

factfinder could find that the defamatory [statement] charged the

plaintiff with activities that would tend to injure him in his

trade or business, commonly called libel per se, he can recover

as general damages all damages that would normally result from

such defamation, such as harm to his reputation. He need not

prove those damages specifically." Lassonde v. Stanton,

(2008) (quotation marks, citation, ellipse, and

bracketing by the court omitted). Because a rational trier of

fact could conclude that Walker's statement that Grivois had been

fired from her job for "a heinous crime" accused her of an act

that would tend to injure her in her chosen profession (the

defendants do not argue otherwise), her inability to prove that

the statement in fact caused such an injury does not prevent her

from recovering in defamation. See

The defendants' motion

for summary judgment as to the defamation claim is denied.

34 II. Amendment

Grivois, for her part, has moved to amend her complaint to

add four new claims:

• a claim for defamation against Wentworth-Douglass, alleging that an as-yet unidentified employee falsely told Walker that Grivois had threatened to go public with information that Spracklin was gay;

• a claim against Wentworth-Douglass for intentional infliction of emotional distress based on that same conduct;

• a claim against Wentworth-Douglass for "negligent infliction of emotional distress" based on that same conduct; and

• a claim against both defendants for "negligent infliction of emotional distress" based--like Grivois's existing defamation claim--on Walker's statement to the surgeons that Grivois had been fired for "doing something heinous."

The default rule governing amotion to amend a pleading, if

more than 21 days have passed since it was filed, is Fed. R. Civ.

P. 15(a)(2), which instructs the court to "freely give leave when

justice so reguires." Here, however, this court's scheduling

order, entered when it approved the plan jointly submitted by the

parties, set a deadline of January 15, 2013 for Grivois to amend

her pleadings. Order of Aug. 16, 2012. Grivois did not file her

motion to amend until October 11, 2013. Where a scheduling order

sets a deadline for such amendments, and that deadline has passed

when amendment is sought, "the liberal default rule is replaced

by the more demanding 'good cause' standard of Fed. R. Civ. P.

35 16(b)," because allowing the amendment would amount to a de facto

modification of the order. Steir v. Girl Scouts of the USA,

, 12 (1st Cir. 1994). "This standard focuses on the

diligence (or lack thereof) of the moving party more than it does

on the prejudice to the party-opponent." Id.. (footnote omitted).

While Grivois's motion does not explicitly address the

applicable standard, she suggests that she acted diligently in

moving to amend because the underlying facts "were not known by

[her] until obtained at the depositions" of the four employees

whom, at Walker's deposition, he identified as the only potential

sources of his information that Grivois had been fired for

threatening to publicize Spracklin's reputed homosexuality. It

was at those depositions, Grivois explains, that each of the

employees denied having said that to Walker. Thus, Grivois

suggests, she could not have brought claims arising out of those

employees' alleged statements to Walker until she had taken those

employees' depositions.

The court does not follow this logic. Even on Grivois's

version of events, it was at Walker's deposition that she first

heard evidence that some other Wentworth-Douglass employee told

him that she had been fired for threatening to publicize

Spracklin's reputed homosexuality. So it was at that juncture

that Grivois possessed the facts on which she relies for her

36 proposed new claims against Wentworth-Douglass, each of which

asserts that the hospital is liable for the employee's statement

under the doctrine of respondeat superior. Yet Grivois did not

seek to add those claims through her motion to amend until more

than two months after Walker's deposition, which took place on

August 2, 2013.

It is true that Grivois did not take some of the depositions

of the four employees that Walker, at his deposition, identified

as the potential source of the statement (Spracklin, Hamill,

Flanigan, and Ellen Caille, the hospital's executive vice

president) until later (though Caille's deposition actually took

place the same day as Walker's, Flanigan, Hamill, and Spracklin

who were deposed on August 8, August 19, and September 2 6,

respectively). According to Grivois, though, what she learned at

those depositions was that each of the employees denied telling

Walker that Grivois had been fired because she threatened to

publicize the allegations about Spracklin's sexuality. But that

information undermines, rather than supports, Grivois's proposed

new claims against Wentworth-Douglass. So the court is at a loss

to see how Grivois, having obtained Walker's testimony that one

of four other employees had made a false statement to him as to

why Grivois had been fired, needed to wait until each of those

employees denied being the source of that statement before she

37 could bring claims against Wentworth-Douglass--rather than

against any individual employee--alleging the statement was

tortious.

Furthermore, Grivois does not even attempt to show good

cause for waiting until after she deposed all of those employees

to seek to add her claim for "negligent infliction of emotional

distress" against both defendants. That proposed claim, as noted

at the outset of this section, is based not on what was said to

Walker, but on what Walker said to Grivois's former colleagues,

about why she had been fired. That conduct, of course, is the

basis of Grivois's existing defamation claim--a claim that she

set out in her original complaint, filed at the commencement of

this action. Grivois offers no reason why she did not include

her proposed "negligent infliction of emotional distress" claim

in her original complaint or, failing that, seek to add the claim

through a timely motion to amend. While Grivois references

Walker's deposition testimony "that he did not in any way

investigate the truth or falsity of the alleged statement" by the

other employee (whoever she was), Grivois had already accused

Walker of speaking without exercising due care, since that is an

essential element the defamation claim set out in her original

complaint. See Part I.C.2, supra. Well before she took Walker's

deposition, then, Grivois had a factual basis for alleging that

38 Walker had spoken negligently when he attributed her firing to

her commission of a "heinous crime."

In any eventf as already noted, Grivois deposed Walker on

August 2, yet did not file her motion to amend until October 11.

Grivois does not explain this additional delay of more than two

months, which resulted in her seeking to add four new claims to

her complaint just ten days prior to the deadline for the

defendants to move for summary judgment, which was October 21.

This court has previously found that an unexplained delay of two

and a half months, resulting in a motion to amend filed at the

summary judgment deadline, "comes nowhere near the 'good cause'

necessary to allow an amendment for which leave was not sought

until eight months after the deadline set forth in the scheduling

order." Contour Design, Inc. v. Chance Mold Steel Co.,

. The timeline here is quite similar--as is, more

importantly, the unexplained nature of the delay--so the court

comes to the same conclusion. This conclusion derives additional

support from the fact that, in granting Grivois an extension of

the deadline to disclose her expert witnesses (after she had let

it pass months earlier without disclosing any), this court warned

her counsel to "strictly comply with all future deadlines and

expect no further indulgences." Order of Apr. 16, 2013. An

unexplained delay of two months between coming into possession of

39 the information allegedly necessary to move to amend and actually

filing the motion to amend is inconsistent with that directive.

Because Grivois has failed to show the necessary "good cause" for

her untimely motion to amend, it is denied on that basis.12

Ill. Exclusion of expert testimony

In addition to moving for summary judgment, the defendants

seek to exclude or limit testimony from three witnesses whom

Grivois has indicated will give expert testimony at trial: Jack

12Furthermore, at least as to the claims for negligent and intentional infliction of emotional distress, the amendment appears to be futile. Of course, "futility is fully sufficient to justify the denial of a motion to amend." Hatch v. Dep't for Children, Youth & Their Families,

(1st Cir. 2001). Except in circumstances where a plaintiff witnesses the defendant negligently causing physical injury to a close family member. New Hampshire has not allowed recovery in negligence for purely emotional harm. See Palmer v. Nan King Rest.,

(2002). But Grivois's proposed negligence claims allege only emotional distress. The New Hampshire Supreme Court has likewise limited recovery for intentional infliction of emotional distress to conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Mikell v. Sch. Admin. Unit No. 33,

(2009) (quotation marks omitted). The false report to Walker that Grivois had been fired for threatening to publicize Spracklin's reputed homosexuality does not meet this formidable standard--indeed, the New Hampshire Supreme Court has held that a teacher's "false report of misconduct [against a student] in an effort to affect his disciplinary record and eventually expel him" from school did not reach "the level of extreme and outrageous conduct necessary."

. Because the amendment was untimely, however, the court need not decide whether it was also futile.

40 Bopp, a vocational counselor; Phil Harford, a psychotherapist;

and Albert Drukteinis, a psychiatrist. The defendants challenge

portions of this anticipated testimony as either improperly

disclosed under Rule 26 of the Federal Rules of Civil Procedure

or inadmissible under Rule 702 of the Federal Rules of Evidence.

For the reasons explained below, the court overrules those

objections, and denies the defendants' motion--except as to a

portion of a proffered opinion from Harford and the challenged

opinions from Bopp.

A. Improper disclosures

The scheduling order set a deadline of January 15, 2013, for

Grivois to disclose her expert witnesses. Some two and one-half

months later, on April 1, 2013, Grivois filed a motion to extend

that deadline, acknowledging that she had "failed to disclose her

anticipated expert witnesses under the current discovery

deadline." Grivois stated, however, that she had "anticipated

identifying" two expert witnesses, Bopp and Catharine Newick, an

economist, "from early in this litigation," because their

testimony was "essential to prove a significant portion of Ms.

Grivois' claimed damages." The motion thus reguested an

"extension of [the] discovery deadline for disclosure of

plaintiff's experts [to] June 1, 2013" (capitalization omitted).

41 This court subsequently granted the motion over the defendants'

objection, though "very reluctantly," and with a caution to

Grivois's counsel, as noted supra. Order of Apr. 16, 2013. The

court also granted the defendants' request, presented as an

alternative to denying Grivois's motion, to extend their deadline

to disclose experts until August 15, 2013. Id.

Grivois served the defendants with a "preliminary expert

disclosure" identifying Bopp, Newick, and Drukteinis, as well as

a "hybrid witness disclosure" identifying Harford, on May 31,

2013--the day before the extended deadline. The defendants argue

that the disclosures of Harford and Drukteinis were nevertheless

untimely because, unlike Bopp and Newick, they were not mentioned

in Grivois's motion to extend the expert disclosure deadline. As

Grivois points out, however, her motion did not limit its request

for relief to an extension just so that she could disclose Bopp

and Newick. Nor did the court limit the extension it granted to

the disclosure of Bopp and Newick. While, as the basis for the

relief, the motion cited Grivois's intention to disclose Bopp and

Newick, the court declines to rule, from that fact alone, that

either the motion or the order granting it contained the

limitation now urged by the defendants--who, significantly, do

not claim that they were ever under the impression that any such

42 limitation was in effect. Their motion to preclude testimony

from Harford and Drukteinis as untimely disclosed is denied.

In the alternative, the defendants seek to limit the bases

for Drukteinis's opinions to those disclosed in his expert report

of May 31, 2013, to the exclusion of additional bases for his

opinions set forth in a subsequent letter from Drukteinis, which

counsel for the defendants did not see until August 5, 2013. The

letter states, in relevant part, that Drukteinis has "now also

had the opportunity to review Ms. Grivois's deposition, interview

her, and administer pyschological testing. This new information

does not change the opinions expressed in my earlier report of

[May 30, 2013] and, in fact, supports those opinions." The

defendants argue that, insofar as this letter could serve to

supplement Drukteinis's expert report, see Fed. R. Civ. P. 26(e),

the supplementation is "untimely and improper." The court

disagrees on both counts.

While, oftentimes, the parties will propose a deadline in

their discovery plan for the supplementation of expert reports,

the parties here did not. Their proposed plan, endorsed by the

court, states simply that "[s]upplementations under Rule 26(e)

are to be made seasonably pursuant to court rules." Those rules

provide, in relevant part, that "[f]or an expert whose report

must be disclosed under Rule 26(a) (2) (B)," such as Drukteinis,

43 "the party's duty to supplement extends both to information

included in the report and information given during the expert's

deposition. Any additions or changes to this information must be

disclosed by the time the party's pretrial disclosures under Rule

26(a)(3) are due." Fed. R. Civ. P. 26(e)(2). By rule, those

disclosures are due 30 days before trial. Fed. R. Civ. P.

26(a)(3)(B). Here, the defendants received Drukteinis's letter

on August 5, 2013, and trial is not scheduled to commence until

March 4, 2013. So the letter was not "untimely," at least as a

matter of Rule 26(e)(2).

Nor was the letter "improper" under Rule 26(e)(1). That

rule requires a party to supplement a prior disclosure or

discovery response "in a timely manner if the party learns that

in some material respect the disclosure or response is incomplete

or incorrect." As the defendants point out, courts have

cautioned that this rule " 'permits supplemental reports only for

the narrow purpose of correcting inaccuracies or adding

information that was not available at the time of the initial

report.'" Christensen v. Quinn, No. 10-4128,

, at

*2 (D.S.D. May 17, 2013) (quoting Minebea Co. v. Pabst,

(D.D.C. 2005)). But that is exactly what

Drukteinis's letter did.

44 Again, Drukteinis's letter noted that, since his initial

expert disclosure, he had interviewed Grivois, subjected her to

psychological testing, and reviewed her deposition. Time records

that he attached to the letter show that he reviewed the

deposition and conducted the interview and testing in mid-July

2013, i.e., after the defendants received his original report on

May 31. By disclosing those tasks in the letter, then, he was

"adding information not available at the time of the initial

report."

He also made the supplemental disclosure in a

"timely manner" under Rule 26(e)(2)(1)(A), i.e., less than three

weeks after he completed those tasks and, moreover, nearly two

months before discovery closed on October 1.

Furthermore, the defendants acknowledge that Drukteinis

"renders no new or different opinions" in the letter from those

set forth in his initial report, and they do not challenge the

adeguacy of the bases for his opinions as they are set forth in

his initial report. This is not a case, then, where a party is

using supplementation "to sandbag [its] opponent with claims and

issues which should have been included" in its expert's original

report, Beller ex rel. Beller v. United States,

(D.N.M. 2003) (guotation formatting omitted), or to provide

"a 'new and improved' expert report" that attempts to correct the

45 flaws that its adversary has identified, Gallagher v. S. Source

Packaging, LLC,

(E.D.N.C. 2008).

At most, Drukteinis arguably ought to have interviewed and

tested Grivois in time to incorporate the results into his

initial report (he could not have reviewed her deposition before

then, however, because it was not even taken until June 19). But

that failing, if it is one, would not support barring Drukteinis

from relying on the interview and testing at trial. At the time

the defendants received the supplemental letter, they had yet to

take Drukteinis's deposition--and still had plenty of time to do

so, since there were nearly two months to go until discovery

closed (and the scheduling order contained no separate deadline

for expert discovery). Ultimately, though, the defendants did

not seek to depose Drukteinis.13 This is not a case, then, where

a party did not learn that the opposing expert had conducted

13While the defendants say that they "chose not to incur the expense of deposing Drukteinis" due to "the limited scope of his inquiry" as reflected in his original report, they do not explain why they did not seek his deposition after learning, via the letter, that his inquiry had broadened--again, nearly two months of discovery remained at that point. The defendants also point to the fact that, while Drukteinis has opined that Grivois suffers from depression, he has not disclosed an opinion linking that condition to her termination from Wentworth-Douglass. If that is correct, then Drukteinis will not be able to offer such an opinion at trial (and this court will decide that at the appropriate time). But it has nothing to do with whether the letter--which, as the defendants acknowledge, does not set forth any new opinions--compiies with Rule 26(e).

46 post-report testing until his deposition, hampering counsel's

ability to conduct the deposition. See MMG Ins. Co. v. Samsung

Elecs. A m ., Inc.,

(D.N.H. 2013). Even if there

were some violation of Rule 26, it was harmless. See Fed. R.

Civ. P. 37(c)(1); West v. Bell Helicopter Textron, Inc.,

. The defendants' motion to limit Drukteinis's

testimony is denied.

B. Inadmissible opinions

Finally, the defendants seek to exclude certain opinions

disclosed by Harford and Bopp as inadmissible under Rule 702 of

the Federal Rules of Evidence. Under that rule.

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 and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The defendants argue that several of Harford's opinions (and one

of Bopp's) are inadmissible under this rule because, variously,

they will not assist the trier of fact, they are not based on

reliable principles and methods, and the witness is unqualified

to give them. While the court agrees as to Bopp's challenged

opinion, it disagrees (with one exception) as to Harford's.

47 1. Harford

Harford is a licensed clinical social worker who practices

as a psychotherapist. He began treating Grivois in March 2013

and, since then, has conducted approximately 64 counseling

sessions with her. Harford has diagnosed Grivois with major

depressive order. While he had also diagnosed her with

post-traumatic stress disorder ("PTSD") , as stated in his

original expert report, he later revised his report to indicate

that she did not meet the accepted diagnostic criteria for that

condition, though she displayed symptoms of it. The defendants

argue, then, that "Harford should be precluded from testifying

that Grivois has PTSD."

In response, Grivois states that Harford will not testify

that she has PTSD, but "will testify that she has PTSD-like

symptoms." In the court's view, however, the potential for that

testimony to confuse the jury substantially outweighs any

probative value it has. See Fed. R. Evid. 403. While Harford

can testify to Grivois's symptoms as he has noted them, he cannot

testify that they are "PTSD-like" when he acknowledges that she

does not in fact have PTSD.

The defendants further argue that Harford cannot testify

that Grivois has major depressive order, because that diagnosis

"was necessarily based on [her] self-report of 'a depressed and

48 anxious mood,'" rather than "psychological tests" (though they

also acknowledge, two sentences later, that Harford performed

"limited testing . . . based on what Grivois told him"), or any

"other records." So far as this court is aware, however, a

trained psychotherapist can diagnose depressive disorder based

solely on a patient's in-person reports; the defendants provide

no evidence or authority to the contrary. The jury will make its

own assessment of the reports Grivois gave Harford (informed, of

course, by its assessment of her credibility as a trial witness)

and if it does not find them credible, can discount his opinions

accordingly. But that possibility goes to the opinions' weight,

not their admissibility. See, e.g., Newell P.R. v. Rubbermaid,

Inc.,

(1st Cir. 1994). Harford can testify to his

opinion that Grivois suffers from major depressive order.

The defendants also challenge Harford's opinion as to the

cause of Grivois's depressive disorder. In his expert report,

Harford states his "clinical observation that the involuntary

loss of her employment was one of a number of events that

contributed significantly to Ms. Grivois's depression." The

other recent events, as also identified in Harford's reports,

were "the death of her parents and her sister and the unexpected

discord she observed among her surviving siblings," and "a

painful loss involving the euthanasia of her two horses." The

49 defendants argue that Harford is no "more qualified than the

average juror to determine whether, and to what extent, one or

more of the recent stressors in Grivois' life contributed to

[her] emotional distress." Harford is, however, a practicing

psychotherapist, and one of the roles of a psychotherapist is to

assist patients in managing the symptoms of their psychological

disorders by identifying the origins of those symptoms. The

court sees nothing to suggest that Harford departed from reliable

methods of psychotherapy in attributing Grivois's depression, in

part, to her termination from Wentworth-Douglass.

While the defendants are correct that the causal connection

(if any) between Grivois's termination and her alleged emotional

distress is ultimately for the jury to decide, that does not

itself render Harford's causation opinion inadmissible, because

"the bar on 'ultimate issue' opinions has been abolished in civil

cases." Dinco v. Dylex Ltd., Ill F.3d 964, 973 (1st Cir. 1997)

(citing Fed. R. Evid. 704(a)). This does not provide "carte

blanche for experts to substitute their views for matters well

within the ken of the jury,"

but that is not a fair

characterization of what Harford would be doing by testifying

that Grivois's termination "was one of a number of events that

contributed significantly to [her] depression." Indeed, expert

opinion testimony attributing a plaintiff's emotional disorder to

50 a defendant's allegedly tortious conduct is commonly allowed, so

long as It meets the requirements of Rule 7 02. See, e.g.. West,

. Harford's opinions as to Grivois's depression

and its causes meet those requirements, so far as the court can

tell from the record and arguments before it at present. The

defendants' motion to exclude those opinions is denied, without

prejudice to revisiting their objections at trial.

2. Bopp

The defendants direct their sole challenge to Bopp's

disclosed opinions at his statements in his report that

(1) "there exists a 'grapevine' among hospitals and medical

practices within the state and I suspect the story of Ms.

Grivois' discharge circulated among professionals in the local

medical industry" and (2) her "involuntary termination . . . is

perceived negatively by most of the prospective employers she has

contacted and I suspect that it has lead [sic] prospective

employers to decide against considering her." The court agrees

with the defendants that these statements, at least as they are

presented in Bopp's report, are speculation--as indicated by his

use of the phrase "I suspect"--rather than opinions based on

reliable principles and methods. The defendants' motion to

preclude Bopp from making such statements at trial is granted.

See Fed. R. Evid. 702. This ruling is not intended to prohibit

51 Bopp from giving other opinions as to the likelihood of Grivois's

finding future employment following her termination, so long as

those opinions are properly disclosed and otherwise admissible.

IV. Conclusion

For the foregoing reasons, the defendants' motion to exclude

or limit the opinions of Grivois's experts14 is GRANTED in part

and DENIED in part, as fully discussed above; Grivois's motion to

amend15 is DENIED; and the defendants' motion for summary

judgment13 is DENIED.

SO ORDERED.

ited States District Judge

Dated: January 28, 2014

cc: John G. Vanacore, Esq. Debra Weiss Ford, Esq.

14Document no. 22.

15Document no. 26.

13Document no. 29.

52