Pacific Radiation Oncology, LLC et al v. The Queen's Medical Center et al
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE THE FEBRUARY 19, 2015 SUPPLEMENTAL REPORT OF JONATHAN CUNITZ re: 530 . Signed by JUDGE LESLIE E. KOBAYASHI on 4/13/2015. Excerpt of conclusi on: "The Motion is GRANTED insofar as this Court HEREBY STRIKES the portions of Dr. Cunitz's February 19, 2015 report identified in this order. The Motion is DENIED in all other respects." Related: February 19, 2015 Supplemental Report of Jonathan Cunitz: Filed as SEALED Exhibit "1" - doc no. 538 , attachment 1. (afc)CERTIFICATE OF SERVICEParticipants registered to receive elec tronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PACIFIC RADIATION ONCOLOGY,
LLC, a Hawai`i Limited
Liability Corporation, et
THE QUEEN’S MEDICAL CENTER, a )
Corporation, et al.,
CIVIL NO. 12-00064 LEK-KSC
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO STRIKE THE FEBRUARY 19, 2015
SUPPLEMENTAL REPORT OF JONATHAN CUNITZ
On March 4, 2015, Defendants/Counter Claimants Queen’s
Medical Center, a Hawai`i Non-Profit Corporation (“QMC”) and
Queen’s Development Corp., a Hawai`i for Profit Corporation
(“Queen’s Corp.”),1 filed their Motion to Strike the February 19,
2015 Supplemental Report of Jonathan Cunitz (“Motion”).2
Defendants filed exhibits in support of the Motion
under seal on March 10, 2015.
[Dkt. no. 538.]
Plaintiffs/Counterclaim Defendants Pacific Radiation Oncology,
LLC, a Hawai`i Limited Liability Corporation (“PRO”), PRO
Pursuant to the Stipulation of Partial Dismissal Without
Prejudice of Individually Named Defendants, [filed 3/11/15 (dkt.
no. 539),] only QMC and Queen’s Corp. remain. The Court will
refer to those two entities collectively as “Defendants.”
Jonathan A. Cunitz, D.B.A., is Plaintiffs’ damages expert.
Associates, LLC, a Hawai`i Limited Liability Corporation,
John Lederer, M.D., Laeton Pang, M.D., Eva Bieniek, M.D.,
Vincent Brown, M.D., Paul DeMare, M.D., and Thanh Huynh, M.D.3
(all collectively “Plaintiffs”) filed their memorandum in
opposition on March 18, 2015, and Defendants filed their reply on
April 1, 2015.
[Dkt. nos. 540, 545.]
The Court finds this
matter suitable for disposition without a hearing pursuant to
Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
After careful consideration of the Motion, supporting and
opposing memoranda, and the relevant legal authority, Defendants’
Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the
reasons set forth below.
The factual and procedural background relevant to the
instant Motion is set forth in this Court’s Order Granting in
Part and Denying in Part Defendants’ Motion to Exclude the
Testimony of Jonathan A. Cunitz (“1/16/15 Order”).
In the 1/16/15 Order, this Court concluded that the
opinions in Dr. Cunitz’s report dated September 10, 2013
This Court will refer to Drs. Lederer, Pang, Bieniek,
Brown, DeMare, and Huynh collectively as “the PRO Physicians,”
and to Drs. Lederer, Pang, Brown, DeMare, and Huynh collectively
as “the PRO Member Physicians.” Dr. Bieniek is not a member of
The 1/16/15 Order is also available at 2015 WL 225496.
(“9/10/13 Cunitz Report”) regarding the PRO Physicians’ loss of
income were inadmissible.
2015 WL 225496, at *8.
however, ruled that Dr. Cunitz could testify “regarding his
interpretation of Plaintiffs’ historic financial documents,” if
Plaintiffs complied with certain disclosure requirements.
(emphasis in original).
On January 30, 2015, Plaintiffs filed a motion seeking
reconsideration of the 1/16/15 Order (“Motion for
[Dkt. no. 491.]
This Court denied the Motion
for Reconsideration on March 31, 2015.
[Dkt. no. 542.]
On February 5, 2015, Plaintiffs filed a notice of their
intent to call Dr. Cunitz in the manner permitted in the 1/16/15
[Dkt. no. 505.]
On or about February 20, 2015,
Plaintiffs’ counsel provided Defendants’ counsel with a letter
dated February 19, 2015 to Mark S. Davis, Esq., from Dr. Cunitz
(“Cunitz 2/19/15 Report”).
[Motion, Decl. of William S. Hunt at
¶ 4 (date of production); dkt. no. 538-1 (report).]
instant Motion, Defendants ask this Court to strike the Cunitz
2/19/15 Report on the ground that it does not comply with the
limitations imposed in the 1/16/15 Order.
Compliance with the 1/16/15 Order
Defendants’ primary argument is that this Court should
strike the Cunitz 2/19/15 Report because the 1/16/15 Order
prohibited him from giving any opinions regarding the PRO
Physicians’ loss of income.
Defendants read the 1/16/15 Order to
This Court expressly allowed Dr. Cunitz to give
testimony and amend his expert report regarding his
interpretation of Plaintiffs’ historic financial documents.
1/16/15 Order, 2015 WL 225496, at *8.
Having carefully reviewed
the Cunitz 2/19/15 Report, this Court FINDS that all of the
statements and opinions therein address Plaintiffs’ historical
financial documents, except for the following portions:
-page 6, the third and fourth sentences of the second
-page 6, the first and second sentences of the third
-page 6, all of the last paragraph after the words
The Court GRANTS Defendants’ Motion insofar as those portions of
the Cunitz 2/19/15 Report are HEREBY STRICKEN because they set
forth information that is not apparent from the PRO Physician’s
historic financial documents.
Plaintiffs must establish those
facts through the testimony of the PRO Physicians themselves.
In addition, Defendants argue that the Cunitz 2/19/15
Report is improper because, in preparing that report, Dr. Cunitz
relied on “approximately 50 pages of materials Plaintiffs never
disclosed to Defendants until the same day Plaintiffs produced
that report on February 20, 2015.”
[Mem. in Supp. of Motion at
This Court rejects this argument because the additional
sources that Dr. Cunitz considered were not available when he
prepared the Cunitz 9/10/13 Report, including more recent
financial documents and physician schedules.
7 & n.3 (listing the additional sources).
See Mem. in Opp. at
This Court therefore
CONCLUDES that the consideration and disclosure of the additional
sources was proper supplementation pursuant to Fed. R. Civ.
Rule 26(e) states, in pertinent part:
(1) In General. A party who has made a
disclosure under Rule 26(a) - or who has responded
to an interrogatory, request for production, or
request for admission - must supplement or correct
its disclosure or response:
(A) in a timely manner if the party learns
that in some material respect the disclosure
or response is incomplete or incorrect, and
if the additional or corrective information
has not otherwise been made known to the
other parties during the discovery process or
in writing; or
(B) as ordered by the court.
(2) Expert Witness. For an expert whose report
must be disclosed under Rule 26(a)(2)(B), the
party’s duty to supplement extends both to
information included in the report and to
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.
To the extent that the Motion contends that Defendants
did not have the opportunity to depose Dr. Cunitz regarding the
additional sources or his current report, [Mem. in Supp. of
Motion at 2-3,] this Court notes that Defendants’ Motion to Amend
the Amended Rule 16 Scheduling Order Filed December 19, 2014
[Doc. No. 458] to Permit Defendants to Rebut Supplemental
Opinions of Plaintiffs’ Expert (“Scheduling Motion”), filed
January 21, 2015, is currently pending before the magistrate
[Dkt. no. 484.]
The magistrate judge has deferred ruling
on the Scheduling Motion until this Court resolves all of the
motions addressing the admissibility of Dr. Cunitz’s testimony
and his two reports.
[EO, filed 3/6/15 (dkt. no. 532).]
Defendants can address all discovery issues regarding the Cunitz
2/19/15 Report before the magistrate judge, in connection with
the Scheduling Motion.
This Court therefore DENIES Defendants’
Motion as to their Rule 26(e) argument.
On the basis of the foregoing, Defendants’ Motion to
Strike the February 19, 2015 Supplemental Report of Jonathan
Cunitz, filed March 4, 2015, is HEREBY GRANTED IN PART AND DENIED
The Motion is GRANTED insofar as this Court HEREBY
STRIKES the portions of Dr. Cunitz’s February 19, 2015 report
identified in this Order.
The Motion is DENIED in all other
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 13, 2015.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
PACIFIC RADIATION ONCOLOGY, LLC, ET AL. VS. THE QUEEN’S MEDICAL
CENTER, ET AL; CIVIL 12-00064 LEK-KSC; ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION TO STRIKE THE FEBRUARY 19,
2015 SUPPLEMENTAL REPORT OF JONATHAN CUNITZ
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