Cook v. The Hughston Clinic, P.C. et al

Filing 52

MEMORANDUM OPINION AND ORDER: It is ORDERED that defendants' 41 Motion to Strike be and is hereby GRANTED to the extent that Dr. Tonks is prohibited from testifying about the permanence of the plaintiff's injury at the trial of this matte r. In all other respects, the motion strike (Doc. 41 ) be and is hereby DENIED as further set out in the opinion and order. The parties are DIRECTED to fully disclose and discuss with Chief United States District Judge W. Keith Watkins, at the pretrial conference of this case, the evidentiary issues surrounding the testimony of Dr. Tonks at trial. Signed by Honorable Judge Charles S. Coody on 1/28/2015. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
LORRAINE COOK,
Plaintiff,
v.
THE HUGHSTON CLINIC, P.C., et al.,
Defendants.

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CIVIL ACT. NO. 3:14cv296-WKW
(WO)

MEMORANDUM OPINION and ORDER
Now pending before the court is the defendants’ third motion to strike Plaintiff’s
Experts Reports (doc. # 41) filed on December 30, 2014. The court held oral argument on
the motion on January 22, 2015.1
Dr. Robert D. Tonks’ report is the sole remaining expert witness report at issue.2 To
say that it has been difficult to obtain a Rule 26 report which provides the pertinent
information would be an understatement. FED R. CIV. P. 26(a)(2)(B) clearly delineates the
information that an expert witness who will testify at trial is required to provide in a written
report to the opposing party.

Dr. Tonks’ expert report must contain the following

1

Also pending before the court is the defendants’ motion to strike Plaintiff’s Amended
Supplemental Expert Report (doc. # 49) filed on January 22, 2015. Because the plaintiff did not provide the
defendants with the amended supplemental report until immediately before oral argument, the motion to
strike was argued but a written motion to strike was not filed until after the argument. The court will address
the motion to strike the plaintiff’s amended supplemental expert report (doc. # 49) in a separate order.
2

On January 7, 2015, the court granted the defendants’ motion to strike Dr. Stewart and Dr. Todd
as expert witnesses for the plaintiff because these doctors failed to provide supplemental reports in
accordance with prior orders of the court. See Doc. # 45.

information:
(i)
(ii)
(iii)
(iv)
(v)
(vi)

a complete report of all opinions the witness will express and the basis
and reasons for them;
the facts or data considered by the witness in forming them;
any exhibits that will be used to summarize or support them;
the witness’s qualifications, including a list of all publications authored
in the previous 10 years;
a list of all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or be deposition; and
a statement of compensation to be paid for the study and testimony in
the case.

Id.
Beyond requiring a “complete report,” the rule provides no further guidance. The
defendants initially moved to strike the plaintiff’s expert witnesses for failing to provide
reports that complied with the requirements of FED.R.CIV.P. 26(a)(2)(B). After oral
argument on November 7, 2014, the court ordered the plaintiff to provide supplemental
expert witness reports that fully complied with FED.R.CIV.P. 26(a)(2)(B). The court
specifically informed the plaintiff that “[f]ailure of the supplemental reports to comply
strictly with FED.R.CIV.P. 26(a)(2)(B) will result in the court’s striking the expert witnesses’
reports.” See Doc. # 28 at 2. The plaintiff’s experts were “limited to the opinions and
substance of their opinions offered in their initial reports. In other words, the experts shall
not be allowed to expand upon the scope of their opinions that focused on the misplacement
of a screw or screws in the plaintiff and what that caused.” Id. at 3 (emphasis added).
In his initial, noncompliant report, Dr. Tonks indicated that he had reviewed Dr.
Flandry deposition testimony, the plaintiff’s deposition testimony, “[r]ecords of Ms. Cook’s
2

November 2011 admission to the Jack Hughston Memorial Hospital,” and the records of
Cook’s treating physician, Dr. Donald Lakatosh. Dr. Tonks opined that
Dr. Flandry, in violation of the standard of care, performed the surgeries of
November 30th and December 2nd in a manner that compressed the nerves of
the cauda equina (by placing a screw in the neural foramen). As a direct result,
Ms. Cook experienced cauda equina syndrome.
(Doc. # 21, Ex. 2).
In his supplemental report dated December 11, 2014, Dr. Tonks noted that he had
reviewed the same material but added that he also reviewed “[d]iagnostic imaging including
radiographs and CT scans for Ms. Cook.” (Doc. # 41, Ex. 1) He then elaborated on his
opinions.
I am familiar with the standard of care which was required for the performance
of sacrolliac joint fusion surgery on November 20, 2011, and December 2,
2011. The standard of care required that the screws be placed/left inside the
“safe zone” within the sacrum and not outside the safe zone. The “safe zone”
is: the corridor of bone, through S1 and S2 sacral vertebrae, through which a
screw can pass safely without injury to nerve or valvular structures. Dr.
Flandry violated the standard of care by placing/leaving screws outside the
safe zone on November 30th and December 2nd, 2001 (sic) surgeries. I am
also of the opinion that one conducting this procedure in a manner as to
place/leave screws outside the safe zone within the sacrum is not conducting
the procedure in as safe a manner as is available, which is also a requirement
of the standard of care. A reason that placing/leaving screws outside the safe
zone violates the standard of care is that the expectation would be that soplacing/leaving screws would cause nerve injury 100% of the time - not that
it would necessarily happen 100% of time - but the expectation would be that
it would happen 100% of the time.
Further, it is my opinion that the screws being so-placed/left during those
surgeries – outside of the safe zone within the sacrum and within the spinal
canal – lead to injury of the nerves of the cauda equina. Finally, it is my
opinion that Ms. Cook’s injury is permanent.
3

The exhibits which will be used to support my opinions are a few of the
radiological images. These images are post-operative films. This letter will
be offered as a summary of my opinions, and a copy of the board summary will
be forwarded to you in time for you to get it to the defendants’ attorney in time
for him to consider it prior to taking my testimony.
(Id.)
In the pending motion to strike, the defendants complain that Dr. Tonks’ supplemental
report “improperly expands upon the scope of the opinions and substance offered in his
initial report,” and his report “still fails to offer the “why” and “how” required by Rule
26(a)(2)(B) of the Federal Rules of Civil Procedure.” (Doc. # 41 at 9).
The court agrees that Dr. Tonks improperly expanded the scope and substance of his
expert report when he offered the opinion that “Ms. Cook’s injury is permanent.” There is
nothing in Dr. Tonks’ original report that would allow the court or defense counsel to
extrapolate that Dr. Tonks, in his supplemental report, would offer an opinion about the
extent and permanence of the plaintiff’s injury. That opinion is due to be stricken and Dr.
Tonks will be prohibited from testifying about the permanent nature of the plaintiff’s injury.
However, the remainder of the supplemental report does not improperly expand the
permissible scope of Dr. Tonks’ opinions. Relying on Scholl v. Pateder, 2011 WL 3684779
(D. Colo. 2011), the defendants argue that Dr. Tonks’ supplemental report is due to be
stricken in its entirety. In Scholl, after comparing the expert’s report with his deposition
testimony, the court struck five opinions because the expert’s report did not “reference these
opinions in any respect.” (Id. at *2). That is not the case here.

4

In his initial report, Dr. Tonks opined that
Dr. Flandry violated the standard of care during both two surgeries on
November 30 and December 2, 2011 “in a manner that compressed the nerves
of the cauda equina (by placing a screw in the neural foramen). As a direct
result, Ms. Cook experienced cauda equina syndrome.
(Doc. # 21, Ex. 2).
In his supplemental report, Dr. Tonks references the standard of care, the placement
of the screws, and injury to the nerves “inside the safe zone.” (Doc. # 41, Ex. 1). In his
supplemental report, Dr. Tonks elaborates on his opinion of how Dr. Flandry violated the
standard of care in both surgeries – by placement of a screw or screws outside the safe zone
causing injury to nerves in the cauda equina.3
According to the defendants, Dr. Tonks expanded his expert opinion by changing his
opinion from “the surgeries ‘compressed the nerves of the cauda equina,’” to “the surgeries

3

Although neither party deemed it necessary to describe the cauda equina, an explanation supports
the court’s conclusion that the opinions expressed by Dr. Tonks in his supplemental report are a more
detailed elaboration of his initial opinion that screw placement during Cooks’ surgeries damaged nerves of
the cauda equina.
The cauda equina (literally, ‘horse’s tail’ after its appearance) is the name given the
collection of nerve fibers located at the end of the spinal column. The individual nerves in
this part of the spinal cord exit the foramina within the vertebral bones of the spine nearly
parallel with the spinal cord itself, unlike the nerves exiting the higher spinal vertebrae,
which exit more nearly perpendicular to the central nerve bundle. This gives the cauda
equina a collective appearance very much like how a horse's tail looks near to its body. The
cauda equina can be found in the bottom third of the spinal canal and from the T12/L1
vertebrae to the coccyx, beyond the conus medullaris into the lumbar region. It consists of
9 to 11 pairs of spinal nerves (including the sciatic nerve) that communicate sensory and
motor nerve messages between the central nervous system and the organs from the pelvis
and throughout the lower limbs.
http://www.innerbody.com/anatomy/nervous/cauda-equina#full-description (last visited January, 27, 2015).

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‘lead (sic) to injury to the nerves of the cauda equina.’” (Doc. # 41 at 13.) They also
complain that Dr. Tonks initially referenced only a single screw but in his supplemental
report, he opines that multiple screws were improperly placed. Finally, they challenge Dr.
Tonks’ use of the phrases “and/or” and “placing/leaving” to argue that instead of alleging one
violation of the standard of care, Dr. Tonks now alleges eight (8) separate and distinct
violations of the standard of care by Dr. Flandry. (Id. at 13-15). The defendants parse Dr.
Tonks’ supplemental report too finely.
While it is undisputed that Dr. Tonks’ report could have been more detailed and
complete, the law does not require the defendants to get an exemplar report, or even a good
one.4 The defendants are entitled to a report that provides sufficient information to ascertain
the facts and bases of Dr. Tonks’ expert opinion. “However, an expert report need not
necessarily contain “sufficient information and detail for an opposing expert to replicate and
verify in all respects both the method and results described in the report” in order to be found
to be complete.” Scholl, 2011 WL 3684779 at *2 (quoting Cook v. Rockwell Intern. Corp.,
580 F.Supp.2d 1071, 1121-22 (D.Colo. 2006)). The defendants argue that Dr. Tonks does
not sufficiently state “how” Dr. Flandry violated the standard of care in either of his reports.
The court disagrees. In his supplemental report, Dr. Tonks elaborates on his original opinion
that Dr. Flandry violated the standard of care during both two surgeries on November 30 and
December 2, 2011 by placing a screw in the neural foramen “in a manner that compressed
4

During oral argument, defense counsel admitted that he would grade Dr. Tonks’ report a 62 which
the court notes is usually considered a passing grade.

6

the nerves of the cauda equina.” (Doc. # 21, Ex. 2).
The standard of care required that the screws be placed/left inside the “safe
zone” within the sacrum and not outside the safe zone. The “safe zone” is: the
corridor of bone, through S1 and S2 sacral vertebrae, through which a screw
can pass safely without injury to nerve or valvular structures. Dr. Flandry
violated the standard of care by placing/leaving screws outside the safe zone
on November 30th and December 2nd, 2001 (sic) surgeries. I am also of the
opinion that one conducting this procedure in a manner as to place/leave
screws outside the safe zone within the sacrum is not conducting the
procedure in as safe a manner as is available, which is also a requirement of
the standard of care. A reason that placing/leaving screws outside the safe
zone violates the standard of care is that the expectation would be that soplacing/leaving screws would cause nerve injury 100% of the time - not that
it would necessarily happen 100% of time - but the expectation would be that
it would happen 100% of the time.
(Doc. # 41, Ex. 1). This is a reasonable amplification of his original opinion, and is not a
new opinion not previously disclosed. The defendants will have an opportunity to depose
Dr. Tonks, delve into his opinions more thoroughly, and thereafter challenge the reliability
of his opinions in a Daubert5 motion.
Moreover, even if the court determined that Dr. Tonks improperly expanded his
opinions, excluding his testimony pursuant to FED.R.CIV.P. 37(c)(1) is not warranted at this
juncture. FED.R.CIV.P. 37(c)(1) provides that “[a] party that without substantial justification
fails to disclose information required by Rule 26(a) or 26(e)(1) . . . is not, unless such failure
is harmless, permitted to use as evidence at trial, . . . , any witness or information not so
disclosed.” FED.R.CIV.P. 37(c)(1) (emphasis added). In this case, the defendants were aware

5

See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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of Dr. Tonks and had some information about his opinions. See OFS Fitel, LLC v. Epstein,
Becker and Green, P.C., 549 F.2d 1344, 1363 (11th Cir. 2008) (“[T]his is not a case of
complete failure to provide information about an expert witness.”) Consequently, the court
concludes that striking Dr. Tonks’ supplemental report in its entirety is not warranted.
Accordingly, upon consideration of the motion, for the reasons as stated and for good
cause, it is
ORDERED the defendants’ motion to strike (doc. # 41) be and is hereby GRANTED
to the extent that Dr. Tonks is prohibited from testifying about the permanence of the
plaintiff’s injury at the trial of this matter. In all other respects, the motion to strike (doc. #
41) be and is hereby DENIED.
The parties are DIRECTED to fully disclose and discuss with Chief United States
District Judge W. Keith Watkins, at the pretrial conference of this case, the evidentiary issues
surrounding the testimony of Dr. Tonks at trial.
Done this 28th day of January, 2015.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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