Charley v. United States: Case-Ending Exclusion of a Required Causation Expert for Deposition-Order Violations Need Not Follow a Mechanical Ehrenhaus Checklist

1. Introduction

In Charley v. United States (10th Cir. July 6, 2026) (nonprecedential order and judgment), the Tenth Circuit affirmed a District of New Mexico judgment entered against the plaintiffs in an FTCA medical-malpractice suit after the district court: (1) excluded plaintiffs’ sole causation expert as a discovery sanction for violating deposition-related court orders; (2) refused to allow a substitute causation expert after the expert-disclosure deadline had long passed; and (3) granted summary judgment because New Mexico law required expert causation evidence in a complex medical-death case.

The parties were the decedent’s estate and family members (Plaintiffs-Appellants) and the United States and related medical providers/staffing entities (Defendants-Appellees). The core factual dispute was whether alleged failures to timely diagnose and treat suspected hantavirus caused Nena Charley’s death. The decisive procedural dispute was whether plaintiffs could proceed without timely, court-compliant expert causation testimony.

2. Summary of the Opinion

  • Sanction affirmed: The court held the district court did not abuse its discretion under Rule 37 by excluding Dr. Bruce Polsky, plaintiffs’ causation expert, after plaintiffs violated two court orders tied to producing him for deposition (including failure to appear and failure to bring Albuquerque deposition dates as ordered).
  • No automatic reversal for incomplete factor discussion: The court rejected the argument that the district court committed legal error by not analyzing every Ehrenhaus v. Reynolds factor in a rigid, factor-by-factor format.
  • Substitute expert properly denied: The court held the district court acted within its discretion in refusing to permit a late substitution of Dr. Michelle Harkins as a causation expert (via affidavit) after the expert-disclosure deadline and after the court had already denied substitution.
  • Summary judgment affirmed: Because New Mexico law required expert testimony on causation in this hantavirus death case and plaintiffs lacked admissible expert causation evidence, summary judgment was proper.

3. Analysis

3.1. Precedents Cited

A. FTCA framework and state-law sourcing

  • Martin v. United States, 605 U.S. 395 (2025): Used to restate that the FTCA waives sovereign immunity for certain torts and channels liability through state tort law.
  • FDIC v. Meyer, 510 U.S. 471 (1994): Cited for the principle that the “law of the place” under 28 U.S.C. § 1346(b) means state law supplies substantive liability rules.

B. Need for expert causation proof under New Mexico law

  • Toppino v. Herhahn, 673 P.2d 1297 (N.M. 1983), citing Crouch v. Most, 432 P.2d 250 (N.M. 1967) and Cervantes v. Forbis, 389 P.2d 210 (N.M. 1964): These authorities grounded the key merits reality: in complex medical cases, expert testimony is ordinarily essential. This legal requirement made the expert exclusion effectively case-dispositive and framed the appellate court’s scrutiny of sanctions and substitute-expert rulings.
  • Harvey v. United States, 685 F.3d 939 (10th Cir. 2012): Reinforced that in FTCA malpractice cases, state law often determines whether expert evidence is required.

C. Rule 37 sanctions, discretion, and the “Ehrenhaus” guideposts

  • Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992): Provided the familiar five-factor guide (prejudice, interference with judicial process, culpability, warning, efficacy of lesser sanctions) used to evaluate case-ending sanctions. The panel emphasized these are “guide posts,” not a rigid checklist whose incomplete discussion mandates reversal.
  • Gripe v. City of Enid, 312 F.3d 1184 (10th Cir. 2002): Quoted for the Ehrenhaus factors and invoked to support binding clients to counsel’s failures to follow orders.
  • Lee v. Max Int’l, LLC, 638 F.3d 1318 (10th Cir. 2011): Central to rejecting a “detailed factor evaluation required” argument; also used to validate sanctions that preserve judicial management and prevent litigation from shifting from merits to collateral discovery fights.
  • Underwood v. Bank of Am. Corp., 996 F.3d 1038 (10th Cir. 2021): Cited for the proposition that dismissal can be affirmed even if the district court does not explicitly evaluate every Ehrenhaus factor, so long as the record supports no abuse of discretion.
  • Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982): Cited for deferential abuse-of-discretion review of Rule 37 sanctions.
  • Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976): Used to confirm that severe discovery sanctions must be grounded in willfulness, bad faith, or fault—rather than inability to comply.
  • Archibeque v. Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172 (10th Cir. 1995), and Klein-Becker USA, LLC v. Englert, 711 F.3d 1153 (10th Cir. 2013): Used to define “willful” broadly as intentional noncompliance without requiring wrongful intent, supporting the district court’s culpability finding.
  • Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, 886 F.3d 852 (10th Cir. 2018): Supported two important points: (i) Ehrenhaus has no “floor” of culpability; and (ii) constructive notice can satisfy the warning factor.
  • Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135 (10th Cir. 2007): Used both for constructive notice principles and to counter the plaintiffs’ “fundamental unfairness” framing.
  • Hall v. Vance, 887 F.2d 1041 (10th Cir. 1989): Acknowledged dismissal with prejudice is severe and should be infrequent, but not forbidden where justified.
  • HCG Platinum, LLC v. Preferred Prod. Placement Corp., 873 F.3d 1191 (10th Cir. 2017): Extended the Ehrenhaus-type scrutiny to evidence exclusion where it effectively ends a case—relevant because excluding the causation expert here was functionally dispositive.

D. Late expert disclosure and substitute expert standards (Rules 26/37)

  • Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985 (10th Cir. 1999): Provided the four-factor test (prejudice/surprise, ability to cure, trial disruption, bad faith/willfulness) for Rule 37(c)(1) exclusion decisions. The panel accepted that explicit findings are not required if the district court’s reasoning reflects the criteria’s “lion’s share.”
  • Essence, Inc. v. City of Federal Heights, 285 F.3d 1272 (10th Cir. 2002): Cited for the district court’s “wide discretion” to exclude untimely expert testimony on timeliness grounds alone.
  • Jacobsen v. Deseret Book Co., 287 F.3d 936 (10th Cir. 2002): Supported that explicit Woodworker’s findings are unnecessary and noted (while not applying) “fundamental unfairness” language sometimes used in exclusion contexts.
  • Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001): Used to support the idea that factor consideration can be implicit (“sub silentio”).
  • Rimbert v. Eli Lilly & Co., 647 F.3d 1247 (10th Cir. 2011): Distinguished. The panel emphasized Rimbert involved unique procedural circumstances and lack of plaintiff fault; in the ordinary case, denying a new expert after discovery closes is within discretion—matching this case.
  • United States v. Nacchio, 555 F.3d 1234 (10th Cir. 2009) (en banc): Cited for the “no two bites at the apple” principle, reinforcing the court’s reluctance to allow late expert re-dos after repeated noncompliance.

E. Summary judgment and the expert-evidence requirement

  • Est. of Beauford v. Mesa County, 35 F.4th 1248 (10th Cir. 2022): Cited for de novo review standards and record review posture on summary judgment.
  • Thom v. Bristol-Myers Squibb Co., 353 F.3d 848 (10th Cir. 2003): Cited for the burden-shifting framework at summary judgment and the need for admissible evidence at trial.
  • Felkins v. City of Lakewood, 774 F.3d 647 (10th Cir. 2014): Provided the analogous principle that where a claim requires expert proof, lack of such proof supports summary judgment.

F. Appellate jurisdiction and premature notices

  • Bowles v. Russell, 551 U.S. 205 (2007): Cited to underscore that timely notices of appeal are jurisdictional.
  • FirsTier Mortgage Co. v. Investors Mortgage Insurance Co., 498 U.S. 269 (1991): Used to uphold appellate jurisdiction despite a premature notice because the later order merely “fleshed out” an earlier merits disposition.
  • Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264 (10th Cir. 2023): Cited for the court’s independent duty to confirm jurisdiction.

3.2. Legal Reasoning

A. Excluding an essential expert as a Rule 37 sanction

The central holding is pragmatic and management-driven: when a party violates discovery-related court orders in a way that derails the schedule and imposes concrete burdens, a district court may exclude even a case-essential expert, and the exclusion will be affirmed if the record supports the decision under the “totality of the circumstances.”

Two aspects of the district court record were pivotal:

  1. Order-violation sequence: (i) failure to produce the expert for the court-ordered deposition date; and (ii) failure to comply with a later instruction (via courtroom deputy and minute order) to appear at the sanctions hearing prepared with dates for a deposition in Albuquerque—an opportunity the court explicitly framed as a “lifesaver.”
  2. Judicial-process interference: The district court emphasized that the case had become dominated by collateral disputes over one expert’s availability, consuming substantial time and undermining Rule 1’s “just, speedy, and inexpensive” mandate.

On appeal, the plaintiffs tried to recast the issue as a “miscommunication,” but the panel upheld the finding of “willful” noncompliance under Tenth Circuit doctrine: intentional failure to comply, without needing wrongful intent.

B. No requirement of a mechanical, factor-by-factor “Ehrenhaus” write-up

A key doctrinal clarification is that Ehrenhaus provides “sometimes-helpful criteria,” not a mandatory script. The district court’s decision to discuss its rationale “without relying exclusively on the Ehrenhaus factors” was not legal error; what mattered was whether the record supported the sanction decision under abuse-of-discretion review.

C. Refusing a substitute causation expert after deadlines (and after prior denial)

The panel treated the substitute-expert issue as a Rules 26/37(c)(1) problem: untimely identification of an expert and untimely expert evidence. The district court’s refusal to allow Dr. Harkins (previously disclosed as a fact witness) to become an expert via late affidavit was upheld because:

  • the attempt came nearly a year after the expert-disclosure deadline and well after summary-judgment proceedings;
  • plaintiffs had earlier opportunities (including leave to depose the doctor) but did not pursue them; and
  • allowing the affidavit would create further delay and unfairness to defendants and the court’s schedule.

Importantly, the panel distinguished Rimbert v. Eli Lilly & Co. as a case with “procedural oddities” and lack of fault—emphasizing that the “normal course” is to deny late expert substitutions after discovery closes.

D. Summary judgment once expert causation proof is excluded

Given the parties’ agreement (and New Mexico precedent) that expert causation testimony was required for a hantavirus-related death claim, the absence of admissible expert causation evidence was fatal. The panel therefore affirmed summary judgment without needing to resolve whether the late affidavit could count as fact testimony; it could not replace the necessary expert showing.

3.3. Impact

A. Discovery-management: experts must conform to court schedules

The decision reinforces a litigation-management principle with special relevance to expert practice: once an expert is designated, the party must produce the expert in compliance with court orders, and an expert’s professional commitments do not excuse disobedience when the court has set the schedule.

B. Sanctions jurisprudence: substance over formatting

For sanctions that functionally end a case, the Tenth Circuit again signals that appellate review focuses on the record-supported exercise of discretion, not whether the district court mechanically checked each factor in a particular order or with particular headings.

C. Tightening the late-substitution pathway

The ruling underscores how difficult it is to “recover” from the loss of a required expert after deadlines pass—especially where the loss stems from the party’s own noncompliance. Attempts to convert a treating physician/fact witness into a causation expert by affidavit after expert deadlines are particularly vulnerable under Rule 37(c)(1).

D. FTCA malpractice: state-law expert requirements remain dispositive at summary judgment

Because FTCA liability borrows state substantive requirements, plaintiffs must plan expert disclosures and discovery with state-law elements in mind. When state law requires expert causation testimony, procedural failures around the causation expert can determinatively end the case.

4. Complex Concepts Simplified

  • FTCA (Federal Tort Claims Act): A statute letting people sue the United States for certain torts by treating it (for liability purposes) like a private person under the state law where the events occurred.
  • Expert disclosure deadline (Rule 26): The court sets a date by which parties must identify expert witnesses and provide required reports.
  • Discovery sanctions (Rule 37): Penalties for failing to follow discovery rules or court orders; sanctions can include cost-shifting, evidence exclusion, or dismissal.
  • “Case-ending” evidence exclusion: Excluding evidence (here, the only causation expert) can be equivalent to dismissing the case because an essential element can no longer be proved.
  • Ehrenhaus factors: A set of considerations (prejudice, process interference, culpability, warning, lesser sanctions) that guide whether severe sanctions like dismissal (or its equivalent) are appropriate.
  • Woodworker’s factors: A similar set of considerations used when deciding whether an undisclosed/late-disclosed witness can be used despite Rule 26 violations.
  • Abuse of discretion vs. de novo review: Sanctions and scheduling decisions are reviewed deferentially (abuse of discretion); summary judgment is reviewed fresh (de novo).
  • Summary judgment (Rule 56): Judgment entered without trial when no genuine dispute of material fact exists and the movant is entitled to win as a matter of law.

5. Conclusion

Charley v. United States stands for a practical, procedure-centered lesson in FTCA medical-malpractice litigation: when state law requires expert causation testimony, compliance with expert discovery obligations is existential. The Tenth Circuit affirmed that a district court may exclude a sole causation expert for violations of deposition-related court orders and need not produce a rigid, factor-by-factor Ehrenhaus checklist so long as the record supports the exercise of discretion. The decision also signals that courts will rarely permit late substitute experts—particularly where the party’s own noncompliance caused the problem—and that late affidavits attempting to retrofit expert opinions after deadlines are unlikely to avert summary judgment.