Hannah, et al., v. United States of America et al

Filing 35

ORDER signed by District Judge John A. Mendez on 2/19/19 GRANTING 15 United States' Motion to Strike April Stallings's expert testimony and STRIKES her February 2016 report and December 2018 supplement. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHAWNEE HANNAH, et al.,

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Plaintiffs,

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v.

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UNITED STATES OF AMERICA, et
al.,

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No.

2:17-cv-01248-JAM-EFB

ORDER GRANTING THE UNITED
STATES’ MOTION TO STRIKE THE
TESTIMONY OF APRIL STALLINGS

Defendants.

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This matter is before the Court to resolve Defendant United

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States’ Motion to Strike (“the United States”) Plaintiffs’ expert

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witness April Stallings (“Stallings”).

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Plaintiffs Shawnee Hannah and Bonnie Hannah (“Plaintiffs”) oppose

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the Motion.

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on the Motion with respect to Stallings on January 9, 2019,

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after which the parties submitted supplemental briefing as

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ordered by the Court.

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Opp’n, ECF No. 28, Supp. Reply, ECF No. 31.

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of the parties’ briefing and relevant legal authority, the Court

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GRANTS the United States’ Motion to Strike with respect to

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Stallings’s testimony.1

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Opp’n, ECF No. 16.

Mot., ECF No. 15.

The Court held a brief hearing

See Def.’s Supp. Brief, ECF No. 26; Supp.
After consideration

This motion was determined to be suitable for decision without
the need for a further hearing or oral argument. EDCA L.R. 230(g)
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I.

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BACKGROUND

This medical malpractice action arises out of treatment

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Plaintiff Shawnee Hannah received at the Department of Veterans

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Affairs (“VA”) Mather facility.

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Mr. Hannah sought treatment at Mather for right-sided neck pain

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and stiffness in May 2015.

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surgery to drain a neck abscess on May 21, 2015.

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Mr. Hannah woke up from anesthesia, he was quadriplegic.

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8–9.

Compl., ECF No. 1, pp. 6–10.

Id. at 6–7.

Mr. Hannah underwent
Id. at 7.

When

Id. at

Mather was unable to perform a cervical MRI on Mr. Hannah

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while he was intubated, so medical staff attempted to transfer

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him to a different facility after he stabilized.

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hospital asserts that no beds were available for Mr. Hannah’s

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transfer until May 24, 2015, when he was transferred to UC Davis

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Medical Center.

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Id.

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Id. at 9.

Id. at 8.

The

Mr. Hannah remained quadriplegic.

The Pre-Trial Scheduling Order required parties to disclose

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Rule 26(a)(2)(B) experts on October 12, 2018, with supplemental

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or rebuttal expert disclosure by October 26, 2018.

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Scheduling Order, ECF No. 10.

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States with Nurse April Stallings’s expert report on October 12,

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2018.

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2.

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October 26, 2018.

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later, Plaintiffs submitted a statement from Stallings that she

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intended to submit an updated supplemental report prior to her

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December deposition.

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Plaintiffs did not seek the Court’s permission for this untimely

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discovery.

Pretrial

Plaintiffs served the United

See Pl.’s Initial Expert Witness Disclosures, ECF No. 15-

The United States responded with its rebuttal experts on
See Frueh Decl., ECF No. 26-1, p. 1.

A month

Stallings Letter, ECF No. 17-1, p. 9.

On December 14, 2018, the date of her deposition,
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Stallings provided the United States with an updated report dated

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December 13, 2018.

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Frueh Decl. at 1.

The initial Stallings report, produced in October 2018, was

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authored in February 2016.

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Stallings offers her opinions based on a “reasonable degree of

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nursing probability” after reviewing medical records provided by

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Plaintiff’s counsel.

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not name the doctors upon whom Stallings relied in forming her

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opinions.

See id.

2016 Stallings Report, ECF No. 15-2.

Id. at 1.

The February 2016 report does

The report also does not offer a medical

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expert opinion in support of priced treatments, such as

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psychological care and the necessity and frequency of medication.

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See id.

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In the December 2018 supplement, Stallings relies on

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portions of the United States’ rebuttal reports and adds new

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pricing sources and a new assessment of Mr. Hannah conducted on

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November 29, 2018.

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Stallings admits that she has not spoken to any of Mr. Hannah’s

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treating physicians since 2016.

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34.

2018 Stallings Report, ECF No. 26-4, p. 9.

Stallings Dep., ECF No. 26-6, p.

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II.

LEGAL STANDARD

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A.

Expert Disclosure Requirements and Supplemental Reports

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Federal Rule of Civil Procedure 26(a)(2) directs a party to

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disclose to other parties the identity of any witness it may use

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at trial to present evidence.

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an expert witness, this disclosure must be accompanied by a

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written report prepared and signed by the expert.

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P. 26(a)(2)(B).

Fed. R. Civ. P. 26(a)(2)(A).

Fed. R. Civ.

If the disclosure is later found to be
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For

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incomplete or incorrect, the providing party must supplement or

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correct the disclosure in a timely fashion.

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26(e)(1)(A).

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extends to both the report and information given during the

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expert’s deposition.

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or changes to this information must be disclosed by the time the

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party’s pretrial disclosures under Rule 26(a)(3) are due.”

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Fed. R. Civ. P.

For expert witnesses, the duty to supplement

Fed. R. Civ. P. 26(e)(2).

“Any additions

Id.

“Supplementing an expert report under Rule 26 means
‘correcting inaccuracies, or filling the interstices of an

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incomplete report based on information that was not available at

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the time of the initial disclosure.’”

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United States Army Corps of Engineers, No. 2:13-CV-02095-KJM-DB,

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2017 WL 3453206, at *6 (E.D. Cal. Aug. 11, 2017) (quoting Gerawan

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Farming, Inc. v. Rehrig Pacific Co., 2013 WL 1982797, at *5 (E.D.

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Cal. May 13, 2013)).

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reports where the supplement (1) differed significantly from the

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original report, “effectively alter[ing] the expert’s theories,”

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or attempted to strengthen weaknesses in the expert’s prior

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report.

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F.R.D. 625, 639 (D. Haw. 2008)).

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supplementations aimed at ameliorating “failures of omission”

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that resulted from an expert’s inadequate or incomplete

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preparation.

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F.R.D. 306, 310 (M.D.N.C. 2002)).

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to apply whenever a party wants to bolster or submit additional

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expert opinions would wreak havoc in docket control and amount to

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unlimited expert opinion preparation.”

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Id.

Duarte Nursery, Inc. v.

Courts have rejected supplemental expert

(quoting Lindner v. Meadow Gold Dairies, Inc., 249
Courts similarly reject

Id. (quoting Akeva L.L.C. v. Mizuno Corp., 212
“To construe supplementation

Id.

Should a party fail to provide information required by Rule
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26(e), “the party is not allowed to use that information or

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witness to supply evidence on a motion, at a hearing, or at a

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trial, unless the failure was substantially justified or is

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harmless.”

Fed. R. Civ. P. 37(c)(1).

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B.

Admissibility of Expert Witness Testimony

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In a case arising under the Federal Tort Claims Act (FTCA),

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the Court applies the law of the state in which the alleged tort

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occurred.

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2013).

Liebsack v. United States, 731 F.3d 850, 855 (9th Cir.

The burden of proof for a medical malpractice claim in

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California requires the plaintiff to offer competent expert

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testimony.

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142, 147 (Cal. 1994).

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Flowers v. Torrance Mem’l Hosp. Med. Ctr., 884 P.2d

Federal Rule of Evidence 702 governs the admissibility of

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expert witness testimony in federal courts.

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the preliminary inquiry required by Federal Rule of Evidence 104,

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the Court must assess the expert witness’s qualifications, the

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relevance of his or her testimony, and that testimony’s

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reliability.

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509 U.S. 579, 594–95 (1993).

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acting as a gatekeeper for the admissibility of expert testimony.

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Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151–52 (1999).

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In conjunction with

Daubert v. Merrell Dow Pharm., Inc. (“Daubert I”),
The Court has wide discretion when

The Court considers an expert’s “scientific, technical, or

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other specialized knowledge” in assessing whether the expert’s

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qualifications “will help the trier of fact to understand the

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evidence or to determine a fact in issue.”

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“If an individual is not qualified to render an opinion on a

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particular question or subject, it follows that his opinion

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cannot assist the trier of fact with regard to that particular
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Fed. R. Evid. 702(a).

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question or subject.”

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1179, 1185 (D. Nev. 2005), aff’d, 244 F. App’x 142 (9th Cir.

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2007).

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advances a material aspect of the proposing party’s case.”

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Daubert v. Merrell Dow Pharm., Inc. (“Daubert II”), 43 F.3d 1311,

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1315 (9th Cir. 1995).

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Morin v. United States, 534 F. Supp. 2d

An expert’s testimony is relevant if “it logically

An expert’s mere assurances of reliability are insufficient

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under Daubert.

Daubert II, 43 F.3d at 1319.

“Rather, the party

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presenting the expert must show that the expert’s findings are

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based on sound science, and this will require some objective,

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independent validation of the expert’s methodology.”

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1316.

Id. at

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III.

DISCUSSION

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A.

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The United States seeks to strike the two expert reports

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submitted by Stallings, as well as exclude her testimony, because

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the latter report was untimely and Stallings utilized a flawed

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and unreliable methodology in her 2016 report.

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No. 26, p. 1.

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United States’ motion.

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1.

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Stallings’s Opinions Must Be Excluded

Supp. Brief, ECF

For the reasons stated below, the Court grants the

The December 2018 Supplement

Stallings’s December 2018 report exceeds the bounds of

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supplementation provided for in Rule 26(e).

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under the Rules means correcting inaccuracies, or filling the

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interstices of an incomplete report based on information that was

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not available at the time of the initial disclosure.”

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United States, 181 F.R.D. 639, 640 (D. Mont. 1998).
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“Supplementation

Keener v.
A party’s

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duty to supplement “does not give license to sandbag one’s

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opponent with claims and issues which should have been included

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in the expert witness’ original report.”

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U.S.A., 922 F. Supp. 2d 866, 880 (C.D. Cal. 2013) (internal

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citations, alterations, and quotation marks omitted).

Reinsdorf v. Skechers

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The December 2018 update to Stallings’s expert report

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consists of edits designed to bolster the inadequately prepared

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February 2016 report.

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old at the time of disclosure, was riddled with errors and

The original report, nearly three years

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obsolete recommendations.

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the December 2018 report’s updates, additions, and reassessments

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could not have been integrated into the original report, rather

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than submitted as an expert “supplement”.

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necessary corrections after the rebuttal deadlines—including a

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new assessment of Mr. Hannah’s living environment and potential

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home modifications, transportation needs, life expectancy,

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physician care, medications, specialist services, home health

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care, and surgical procedures—Stallings’s February 2016 report

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functioned as a prop to evade effective rebuttal.

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Plaintiffs have provided no reason why

By providing the

Stallings’s December 2018 report is properly characterized

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as a new, rather than supplemental, expert report and should have

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been filed by the October 12, 2018 expert witness disclosure

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deadline.

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excluded unless found to be harmless or substantially justified

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under Rule 37(c).

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The December 2018 report is untimely and must be

The burden lies with Plaintiffs to prove that their untimely

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disclose was substantially justified or harmless.

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Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir.
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R & R Sails,

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2012).

Because Rule 37 functions as “a self-executing, automatic

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sanction to provide a strong inducement for disclosure of

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material,” the Court need not make a finding of willfulness or

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bad faith when excluding evidence.

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Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008), as amended

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(Sept. 16, 2008).

Hoffman v. Constr. Protective

Here, Plaintiffs have not carried that burden.

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Plaintiffs’ submission of the December 2018 report on the

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final day of discovery, hours before Stallings’s deposition, was

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not harmless.

See Hoffman at 1180 (stating that “modifications to

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the court’s and the parties’ schedules,” including additional

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briefing and re-opened discovery, may support a finding that a Rule

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26 violation was not harmless).

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rebuttal expert testimony on a knowingly outdated report provided

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Plaintiffs with a harmful litigation advantage.

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Having the United States base its

Additionally, Stallings writes in the December 2018 report

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that she spoke with Mrs. Hannah on November 29, 2018, well after

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the expert witness disclosure deadline, “to obtain an update in

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regard[] to Lee Hannah’s current status; living situation; home

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health care; medications; therapies; physicians care and current

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needs.”

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not provided any explanation that substantially justifies why the

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November 29, 2018 update could not have taken place prior to the

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October 12, 2018 disclosure deadline when it was clear that the

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February 2016 report and assumptions therein were stale.

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Dec. 2018 Report, ECF No. 26-4, p. 9.

Plaintiffs have

As Plaintiffs’ untimely disclosure was neither substantially

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justified

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applies.

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nor

harmless,

Rule

37(c)(1)’s

///
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automatic

exclusion

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2.

Stallings’s Testimony Is Not Reliable

As the Court must exclude Stallings’s December 2018 report,

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the Court next addresses the United States’ argument that

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Stallings’s testimony is unreliable under Federal Rule of

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Evidence 702.

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See Supp. Brief at 6.

Even assuming that Stallings is qualified and her testimony

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is relevant, review of the February 2016 report and evaluation of

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Stallings’s deposition testimony illustrates that she failed to

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apply reliable principles and methods to the facts of the case.

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See Fed. R. Evid. 702(a) (stating that a witness may be qualified

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as an expert by “scientific, technical, or other specialized

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knowledge”); Daubert II, 43 F.3d at 1315 (stating that testimony

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is relevant where it logically advances a material aspect” of the

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plaintiff’s case); id. at 1316 (stating that testimony must be

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soundly based on objective, independent methodology).

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The Court acknowledges that concerns about reliability are

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lessened in cases like this, where the judge sits as the trier of

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fact.

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2d 1229, 1233 (E.D. Cal. 2005).

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not exempt an expert witness from Rule 702’s reliability

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requirement.

CFM Commc’ns, LLC v. Mitts Telecasting Co., 424 F. Supp.
Nevertheless, a bench trial does

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Stallings testified at her deposition that her methodology

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for determining the reasonable value of future medical services

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was as follows: she called billing representatives for three

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providers, obtained the full-billed amount for a treatment or

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service, and then decided that the middle of the three was the

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reasonable value.

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records listing the high or low values, or the sources she

Stallings Dep. at 59–70.

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She did not retain

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contacted to obtain these values.

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and supplies, Stallings utilized a similar method.

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full-billed amounts from websites and averaged the prices,

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failing to retain records or original prices from which she

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derived her average.

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records upon which she based her calculations, there is no way to

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perform an objective, independent validation of the Stallings’s

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methodology.

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See id.

See id. at 75.

For medical equipment
She collected

By failing to retain the

See Daubert II, 43 F.3d at 1319.

Plaintiffs have not produced evidence about whether

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Stallings’s methodologies have been tested or whether they have

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been accepted by others in the field.

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593–94.

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billed amounts of future medical services and equipment is not in

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accordance with the California Supreme Court’s endorsement of the

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“market or exchange value as the proper way to think about the

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reasonable value of medical services.”

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Cal. Rptr. 3d 363, 381 (Ct. App. 2016) (noting that “[f]or

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insured plaintiffs, the reasonable market or exchange value of

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medical services will not be the amount billed by a medical

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provider or hospital, but the ‘amount paid pursuant to the

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reduced rate negotiated by the plaintiff's insurance company’”).

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An individual enrolled in Medicare, like Mr. Hannah, does not pay

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the full-billed amount.

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Rptr. 3d 820, 834 (Ct. App. 2015), as modified on denial of reh’g

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(July 20, 2015) (“Insured plaintiffs incur only the fee amount

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negotiated by their insurer, not the initial billed amount.

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Insured plaintiffs may not recover more than their actual loss,

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i.e., the amount incurred and paid to settle their medical

See Daubert, 509 U.S. at

It is apparent that Stallings’s reliance on the full-

Markow v. Rosner, 208

See Bermudez v. Ciolek, 1329, 188 Cal.

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bills.”).

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Stallings’s calculations based on full-billed amounts are

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not the only problems within her report.

Stallings based her

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calculations in the 2016 report on an assumption that Mr. Hannah

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would live to be 83 years old, relying on a Governmental Life

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Expectancy Table on the CDC’s website.

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ECF No. 15-2, pp. 9–10.

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education or training in determining life expectancy and that her

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assumption did not factor in Mr. Hannah’s history of atrial

2016 Stallings Report,

She admits that she has no formal

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fibrillation, cardiomyopathy, and alcoholism.

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39.

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illustrates a profound disconnect between the facts and her

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conclusions.

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(1997) (“A court may conclude that there is simply too great an

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analytical gap between the data and the opinion proffered.”).

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Stallings Dep. at

Stallings’s assumption about Mr. Hannah’s life expectancy

See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146

As this was the first life care plan that Stallings prepared

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for an individual with quadriplegia, the Court lacks evidence

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that her methodologies predated this case and have been

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previously accepted.

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methodology, Plaintiffs attempt to shift the burden on to the

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United States to provide authority disproving the reliability of

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Stallings’s methods and argue that Medicare is insolvent.

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Opp’n at 7–8.

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In lieu of support for Stallings’s

Supp.

Such arguments are not persuasive.

Assumption and conjecture cannot form the basis of an

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objective, and independent methodology.

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be a very qualified nurse, the Court cannot rely on Plaintiffs’

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mere assurances that her methods are sound.

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F.3d at 1319 (“We’ve been presented with only the experts’
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Although Stallings may

See Daubert II, 43

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qualifications, their conclusions and their assurances of

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reliability.

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thorough review of the record and Stallings’s report, the Court

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finds that Stallings’s testimony does not utilize a sufficiently

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reliable methodology to satisfy the reliability requirement.

Under Daubert, that’s not enough.”).

Based on a

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IV. ORDER
The Court hereby GRANTS the United States’ Motion to Strike
April Stallings’s expert testimony and STRIKES her February 2016
report and December 2018 supplement.
IT IS SO ORDERED.
Dated: February 19, 2019

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