                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-1554


ANNETTE CAMPBELL, Administrator of the Estate of Loyd H.
Campbell, Deceased,

                Plaintiff - Appellant,

          v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.      James R. Spencer, Chief
District Judge. (3:10-cv-00363-JRS-DWD)


Submitted:   December 16, 2011            Decided:   January 9, 2012


Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brenda L. Page, Alan F. Duckworth, PAGE LAW FIRM, P.C.,
Richmond, Virginia, for Appellant.     Neil H. MacBride, United
States Attorney, Jonathan H. Hambrick, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Annette Campbell filed a wrongful death action against

the United States of America pursuant to the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680 (2006), alleging that

medical     staff       at    the    Veterans       Affairs     Medical    Center      (“VA

Medical     Center”)         acted       negligently     while     providing     dialysis

treatment to her husband, Lyod Campbell, resulting in his death.

Campbell    appeals          the    district       court’s      orders    excluding        her

expert witness, dismissing her complaint, and denying her motion

to alter or amend judgment.                    We have reviewed the record and

find no reversible error.                Accordingly, we affirm.

            We      review         the      district     court’s     exclusion        of     a

plaintiff’s expert witness for an abuse of discretion.                           Carr v.

Deeds, 453 F.3d 593, 601 (4th Cir. 2006).                        Rule 26(a)(2) of the

Federal Rules of Civil Procedure imposes specific requirements

for   the   disclosure         of    expert     testimony       during    the   discovery

period.      A    plaintiff          must    disclose     her    expert    by   the    date

provided     by     a    court’s         pretrial      order.      Fed.    R.   Civ.        P.

26(a)(2)(C) (2010).                In addition, an expert witness’s report

must contain:

      (i) a complete statement of all opinions the witness
      will express and the basis and reasons for them;
      (ii) the facts or data considered by the witness in
      forming them; (iii) any exhibits that will be used to
      summarize   or  support  them;   (iv)  the  witness's
      qualifications, including a list of all publications
      authored in the previous 10 years; (v) a list of all

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      other cases in which, during the previous 4 years, the
      witness testified as an expert at trial or by
      deposition; and (vi) a statement of the compensation
      to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B).                   Thus, “the expert report should be

written     in    a   manner       that    reflects        the   testimony     the   expert

witness is expected to give at trial.”                       Sharpe v. United States,

230 F.R.D. 452, 458 (E.D. Va. 2005).

             Pursuant         to   Rule        37(c)(1),     a   party   who      fails   to

properly designate an expert witness as required by Rule 26(a)

may   not    use      the     expert      at    trial,     “unless   the     failure      was

substantially justified or harmless.”                      Fed. R. Civ. P. 37(c)(1).

The party facing sanctions carries the burden of showing that

the failure to comply with Rule 26(a) was either substantially

justified or harmless.              Carr, 453 F.3d at 602.               In determining

whether a party’s failure to properly designate an expert was

“substantially justified or harmless,” a court should balance:

(1) the surprise to the party against whom the evidence would be

offered; (2) the ability of that party to cure the surprise; (3)

the extent to which allowing the explanation would disrupt the

trial;      (4)    the      importance         of    the    evidence;       and   (5)     the

nondisclosing party’s explanation for its failure to disclose

the   evidence.          S.    States      Rack      &   Fixture,    Inc.    v.    Sherwin-

Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).                             The district




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court has “broad discretion to determine whether a nondisclosure

of evidence is substantially justified or harmless.”                 Id.

            Campbell filed her expert designation, identifying Dr.

Moffatt as her proposed expert, on December 7, 2010, five days

after the deadline set forth in the district court’s scheduling

order.      The     district    court    found     Campbell’s     expert     report

deficient, as Dr. Moffatt failed to delineate the applicable

standard of care, discuss the issue of causation, explain the

factual basis for his conclusions, or reveal the records that he

reviewed, as required by Rule 26(a).                The district court also

held that Campbell failed to show her failure was “substantially

justified    or    harmless,”    thereby     excluding    her     expert   witness

pursuant    to    Rule    37(c)(1).     Having     excluded     Campbell’s     only

proposed     expert      witness,     the    district     court     granted    the

Government’s motion for summary judgment, and denied Campbell’s

subsequent motion to alter or amend its judgment.

            On    appeal,    Campbell    argues    that   the     district    court

erred by failing to consider less drastic sanctions, such as

sanctioning       her    attorney.      However,     Campbell’s     argument     is

misplaced; as we have previously held, and as the language of

Rule 37(c)(1) evidences, the Federal Rules impose an “automatic

sanction” of exclusion of a party’s expert witness for failure

to adhere to the expert witness requirements set forth in Rule

26(a).      See Southern States, 318 F.3d at 592 n.2 (“The Rule

                                         4
37(c)    advisory          committee       notes    emphasize       that     the     automatic

sanction          of     exclusion        provides      a    strong        inducement        for

disclosure of material that the disclosing party would expect to

use     as    evidence.”)          (internal        quotation       marks    and      citation

omitted).              Therefore,    the     district       court    did    not    abuse    its

discretion in failing to consider less drastic sanctions than

exclusion of Campbell’s expert witness, as Rule 37(c) requires

exclusion unless the party establishes substantial justification

or harmlessness.

                  Campbell     next       asserts      that       the      district        court

erroneously applied the factors set forth in Southern States to

determine           whether        Campbell’s        failure        was      “substantially

justified or harmless.”               In an attempt to justify the deficiency

of her December 7 report, Campbell argues that the Government’s

“hide the ball tactics” prevented her from preparing an adequate

expert       designation.            With    respect        to    the     surprise    to    the

defendant,          Campbell        asserts     that,        although       Dr.      Moffatt’s

December 7 report did not address the standard of care or the

issue        of     causation,        the     Government          could     “infer”        these

requirements from his report.                       Further, Campbell argues, any

surprise          suffered    by    the     Government      was     cured    by    Campbell’s

January 14, 2011 supplement, which included a new report from

Dr. Moffatt and fifty-seven pages of exhibits.



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              As     the     district        court    correctly       found,     however,

Campbell’s         arguments      do   not    establish    that       her    failure     to

designate     an     expert       witness     was    “substantially         justified    or

harmless.”         Although Campbell correctly notes the importance of

her expert witness, as her medical malpractice case hinged upon

his testimony, the other Southern States factors weigh against

Campbell.      The surprise suffered by the Government due to the

deficiency of Campbell’s December 7 report was great; pursuant

to Rule 26(b)(4)(A), the Government could not depose Dr. Moffatt

until Campbell provided an adequate expert report.                           At the time

of the motion in limine hearing, trial was scheduled to begin in

less   than    thirty        days,     and    deposition       of    Campbell’s    expert

witness had not yet occurred.                       As this court has previously

emphasized, “A party that fails to provide [expert] disclosures

unfairly inhibits its opponent's ability to properly prepare,

unnecessarily prolongs litigation, and undermines the district

court's   management         of    the   case.”        Saudi    v.    Northrop    Grumman

Corp., 427 F.3d 271, 278-79 (4th Cir. 2005) (internal quotation

marks and citation omitted).                 Further, although Campbell asserts

that she was unable to prepare an adequate expert designation

due to the Government’s refusal to provide meaningful discovery

responses,         counsel     for     Campbell       candidly       admitted     to    the

district court that her failure to properly designate an expert



                                               6
witness in compliance with Rule 26(a) was her own mistake, not

attributable to the Government’s wrongdoing.

               Moreover,    Campbell’s       January     14    supplement      did       not

serve     to    “cure”     the    deficiencies     of     her       original     report.

Although Campbell did not obtain court leave to file her January

14, 2011 supplement, more than a month after the December 2,

2010    deadline,        Campbell      contends    that       her    supplement          was

properly before the court because she was under a “continuing

duty” pursuant to Fed. R. Civ. P. 26(e)(1) to supplement her

December 7 report.          However, Campbell miscomprehends the Federal

Rules; Rule 26(e) envisions supplementation “to add additional

or corrective information.”                 Sharpe, 230 F.R.D. at 462.                   “To

construe [Rule 26(e)] supplementation to apply whenever a party

wants   to     bolster     or    submit     additional    expert      opinions      would

[wreak] havoc in docket control and amount to unlimited expert

opinion      preparation.”            Id.     Because    Campbell’s        January        14

supplement did not simply add or correct information, but rather

attempted to       recast       Dr.   Moffatt’s   initial       opinions    so      as    to

comply with the requirements of Rule 26(a), it does not fall

within the bounds of Rule 26(e)(1).                    Thus, Campbell failed to

establish that her failure to designate an expert witness was

“substantially       justified        or    harmless,”    as    required       by    Rule

37(C)(1).        Accordingly, the district court did not abuse its

discretion in excluding Campbell’s expert witness.

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             The   district     court’s       grant    of   summary    judgment   is

reviewed de novo.        Jennings v. Univ. of North Carolina, 482 F.3d

686, 694 (4th Cir. 2007) (en banc).                   Summary judgment shall be

granted “if 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).           “Where the record taken

as a whole could not lead a rational trier of fact to find for

the   nonmoving    party,     there     is    no   genuine    issue    for   trial.”

Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation

marks and citation omitted).

             Virginia law, which governs Campbell’s claim, ∗ requires

a plaintiff suing for medical malpractice to demonstrate: (1)

the applicable standard of care; (2) breach of that standard of

care; and (3) that the breach proximately caused the plaintiff’s

injuries.     Parker v. United States, 475 F.Supp.2d 594, 598 (E.D.

Va. 2007).     Absent the rare case in which the alleged negligent

act   or    omission    is    clearly    within       the   common    knowledge   of

laymen, “expert testimony is ordinarily necessary” to establish

these     elements.     Id.    (internal       quotation     marks    and    citation

omitted).      Without an expert witness, Campbell was unable to


      ∗
       As the alleged negligence occurred in Virginia, Campbell’s
lawsuit is governed by Virginia law.     See 18 U.S.C. § 1346(b)
(indicating that FTCA claims are governed by the “law of the
place where the act or omission occurred”).



                                          8
establish a prima facie case of medical malpractice.                    As there

was no genuine dispute as to any material fact, the district

court did not err in granting the Government summary judgment.

             Finally, we review the denial of a Fed. R. Civ. P. 59

motion to alter or amend a judgment for abuse of discretion.

Sloas v. CSX Transp., Inc., 616 F.3d 380, 388 (4th Cir. 2010).

The district court “necessarily abuses its discretion when it

makes an error of law.”           Id.   (citing Wolfe v. Johnson, 565 F.3d

140,   160   (4th    Cir.    2009)).         “There   are   three    grounds    for

amending an earlier judgment: (1) to accommodate an intervening

change in controlling law; (2) to account for new evidence not

available at trial; or (3) to correct a clear error of law or

prevent manifest injustice.”            Pacific Ins. Co. v. Am. Nat’l Fire

Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (citation omitted).

On appeal, Campbell fails to highlight a change in controlling

law, present new evidence, or identify a clear error of law.

Accordingly, we conclude that the district court did not abuse

its discretion in denying Campbell’s motion to alter or amend

judgment.

             We   affirm    the   judgment     of   the   district   court.     We

dispense     with   oral     argument     because     the    facts    and     legal




                                         9
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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