Meyer v. St. John's Hospital of the Hospital Sisters of the Third Order of St Francis

Filing 46

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Defendant's Motion to Strike Plaintiff's Supplemental Expert Disclosure and Plaintiff's Designation of Julie Ulery as an Expert Witness 38 is DENIED, and Plaintiff Tiffan y Meyer's Motion for Leave to Amend Scheduling Order, or, in the Alternative, Strike the Opinion Testimony of Colleen Stauffer 41 is ALLOWED in part and DENIED in part. Dispositive Motions deadline extended to 8/15/2017. Final Pretrial Confere nce set 10/30/17 is CANCELLED and reset 11/27/2017 at 2:00 PM in Courtroom 1 in Springfield before U.S. District Judge Sue E. Myerscough. Jury Trial set 11/14/2017 is CANCELLED and reset 12/12/2017 at 9:00 AM before Judge Myerscough. Telephonic Status Conference set 5/25/2017 is CANCELLED and reset Monday, 7/17/2017, at 10:30 AM court will place call) before Magistrate Judge Schanzle-Haskins. See written order. (LB, ilcd)

E-FILED

Wednesday, 19 April, 2017 03:44:39 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
TIFFANY MEYER,
Plaintiff,
v.
ST. JOHN’S HOSPITAL
of the HOSPITAL SISTERS
of the THIRD ORDER OF
ST. FRANCIS,
Defendant.

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No. 15-3313

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Defendant St. John’s Hospital
of the Hospital Sisters of the Third Order of St. Francis’s (St. John’s) Motion
to Strike Plaintiff’s Supplemental Expert Disclosure and Plaintiff’s
Designation of Julie Ulery as an Expert Witness (d/e 38) (Motion 38) and
Plaintiff Tiffany Meyer’s Motion for Leave to Amend Scheduling Order, or,
in the Alternative, Strike the Opinion Testimony of Colleen Stauffer (d/e 41)
(Motion 41). For the reasons set forth below, Motion 38 is DENIED and
Motion 41 is ALLOWED in part. The Scheduling Order is amended to allow
Meyer’s late designation of Ulery as an expert witness and to allow St.

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John’s to designate a responsive expert within 30 days after the deposition
of Ulery.
BACKGROUND
St. John’s employed Meyer as a dietician. On July 8, 2014, St.
John’s terminated Meyer’s employment. Meyer alleges St. John’s fired her
because of her disability in violation of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq. See Complaint (d/e 1). Meyer alleges
that she suffers from McCune-Albright Syndrome with Fibrous Dysplasia.
Her condition “impairs her ability to walk, stand, and stay in one position for
long periods of time.” Meyer “uses a wheelchair or crutches and frequently
rotates between standing and sitting to avoid pain, muscle fatigue and
muscle strain.” Complaint, ¶ 11. She alleges St. John’s terminated her
because she asked for a reasonable accommodation for her limited
mobility. See Complaint, ¶ 21.
St. John’s told Meyer she was terminated for a lack of clinical
competence. The termination notice stated:
Tiffany, you are being terminated due to lack of clinical
competence which poses a risk to patient safety. Also, you do
not exhibit the core values of care, competence, respect, and
joy.

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Motion 41, Exhibit C, Performance Action Plan dated July 8, 2014; see
Complaint, ¶ 21. On July 8, 2014, Meyer wrote an email to a friend and coworker Jacqueline Wilcox which stated, in part,
So today was pretty crappy. I got fired. No joke.
Colleen said she reviewed my chart audits and found I didn't
recommend a low fiber diet for someone with diverticulitis (I put
general) and for a home TF pt who was not tolerating her TF, I
recommended to continue the same tube-feeding instead of
recommending Vital 1.2 for better tolerance, and I also didn't
mention the fact that someone had diarrhea through their whole
stay. So all that was a "patient safety risk" and I was terminated
for lack of clinical competency. No chance to explain myself or
review the records. Just fired. No prior inkling that anything was
wrong, just straight to firing.
Defendant’s Response in Opposition to Plaintiff’s Motion for Leave to
Amend the Scheduling order, or, in the Alternative, Strike Opinion
Testimony of Colleen Stauffer (d/e 45) (St. John’s Response), Exhibit 2,
Email dated July 8, 2014. The parties refer to the two patients identified in
Meyer’s email as Patient B and Patient H. The person identified as
“Colleen” in the email is Colleen Stauffer, Clinical Nutrition Manager at St.
John’s. Stauffer was Meyer’s supervisor and conducted the audit of the
patient charts.
The Scheduling Order required Meyer to disclose experts by
November 11, 2016. Meyer disclosed one expert on that date, Wilbur
Swearingin, a rehabilitation expert to testify about the alleged failure to
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accommodate. St. John’s deadline to disclose experts was December 11,
2016. St. John’s did not disclose any experts. See Scheduling Order
entered March 4, 2016 (d/e 14); St. John’s Response, Exhibit 4, Plaintiff’s
Expert Disclosure.
On March 2, 2017, St. John’s deposed Meyer. Meyer testified at her
deposition that in her clinical judgment she treated Patient B and Patient H
appropriately. St. John’s Response, Exhibit 5, Excerpts of Deposition of
Tiffany Meyer, at 123-32, 181-85. She specifically testified based on
professional clinical judgment,
Q. So it was your opinion that the care, or that the assessment
you had made was appropriate?
A. It was my clinical judgement rather than my opinion.
Id. at 123.
On March 7, 2017, Meyer deposed Stauffer. Stauffer testified that in
her clinical judgment Meyer’s treatment decisions were not competent and
put Patient H at risk of serious harm or death. Stauffer testimony’s
included opinions regarding the propriety of prescribing certain feeding tube
formulas known as Jevity and Vital to Patient B and Patient H. Motion 41,
Exhibit A, Excerpts of Deposition of Colleen Stauffer, at 194-95, 208-09,
234, 236,266-71.

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Meyer noticed the deposition of Julie Ulery (f/k/a Julie Morrison) for
March 13, 2017. Ulery was a former dietician manager at St. John’s.
Meyer disclosed Ulery as a fact witness. See St. John’s Response, Exhibit
3, Plaintiff’s Initial Disclosures; and Exhibit 6, Notice of Deposition of Julie
Ulery dated February 17, 2017.
On March 8, 2017, Meyer served an amended notice of deposition,
postponing the deposition of Ulery to March 28, 2017. On March 22, 2017,
Meyer served St. John’s with Plaintiff’s Supplemental Expert Disclosure
(Supplemental Disclosure). The Supplemental Disclosure listed Ulery as
an expert witness. The Supplemental Disclosure stated:
Ms. Ulery will provide opinions on the physician/dietitian
relationship, the roles of dietitians and physicians as members
of the medical care team, and the circumstances under which
dieticians make recommendations for levity formula, Vital
formula, and a general diet to patients and the propriety of such
recommendations.
St. John’s Response, Exhibit 8, Supplemental Disclosure.
On March 24, 2017, St. John’s filed Motion 38 seeking to strike Meyer’s
supplemental disclosure and designation of July Ulery. Later that day,
Meyer served St. John’s with Plaintiff’s Second Supplemental Expert
Disclosure (Second Supplemental Disclosure). The Second Supplemental
Disclosure stated:

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Ms. Ulery will provide opinions on the following subjects:
physician/dietitian relationship, the roles of dietitians and
physicians as members of the medical care team, and the
circumstances under which dieticians make recommendations
for Jevity formula, Vital formula, and a general diet to patients
and the propriety of such recommendations.
In response to Collen Stauffer's opinions made on March 7,
2017, Ms. Ulery will opine that doctors cannot legally give
responsibility of care to dieticians, that jevity is a widely
appropriate tube feeding formula to provide, that recommending
the wrong diet very rarely causes death or medical
emergencies, that recommending a general diet to a patient
with malnutrition who isn't eating well despite other medical
conditions can be appropriate, and that recommending a
patient's home regime diet for a patient who had been NPO can
be appropriate.
St. John’s Response, Exhibit 9, Second Supplemental Disclosure.
St. John’s also asked the Court to stay Ulery’s deposition pending
resolution of Motion 38. The Court granted that Motion. Text Order
entered March 24, 2017.
In response to Motion 38, Meyer moved to amend the Scheduling
Order to allow Supplemental and Second Supplemental Disclosures, or in
the alternative, to strike Stauffer’s testimony regarding her clinical judgment
as improper, undisclosed expert testimony.
ANALYSIS
Meyer failed to disclose Ulery as an expert witness within the time
allowed by the Scheduling Order. Timely disclosure of expert witnesses is
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required by Rule 26(a). Fed. R. Civ. P. 26(a)(2)(D). Meyer, therefore, may
not use Ulery as an expert witness unless her untimely disclosure was
substantially justified or harmless. Fed. R. Civ. P. 37(c)(1).
Meyer argues that her disclosure of Ulery was timely because Ulery
was a rebuttal witness. A party may disclose evidence “intended solely to
contradict or rebut evidence on the same subject matter identified by
another party under Rule 26(a)(2)(B) or (C), within 30 days after the other
party’s disclosure.” Fed. R. Civ. P. 26(a)(2)((D)(ii). Rules 26(a)(2) (B) and
(C) require disclosures for expert testimony by compensated and
uncompensated experts. St. John’s made no such disclosures regarding
Stauffer. Rule 26(a)(D)(ii), therefore, does not apply. Meyer must show
that the late disclosure was substantially justified or harmless.
Meyer states the late disclosure of Ulery was substantially justified
because St. John’s did not disclose that Meyer was going to offer expert
opinions based on her clinical judgment about Meyer’s treatment of Patient
B and Patient H. Meyer argues that she did not know Stauffer would offer
this testimony until Stauffer’s deposition. St. John ‘s counters that Meyer
knew that her treatment of Patient B and Patient H was the stated basis for
her termination. Meyer knew that Stauffer’s credibility on the basis for
Meyer’s termination would be a central issue in the case.
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The Court agrees with St. John’s. Meyer’s counsel clearly knew that
a central issue in the case will be whether Stauffer truly believed that
Meyer’s treatment of Patient B and Patient H showed a lack of clinical
competence. Meyer will have the burden under the McDonnell-Douglas
indirect method of proof at summary judgment to present evidence that St.
John’s stated reason for firing her was a pretext, that is, a lie. See Hooper
v. Proctor Health Care, Inc., 804 F.3d 846, 853 (7th Cir. 2015); Faas v.
Sears, Roebuck & Co., 532 F.3d 633, 642 (7th Cir. 2008). Evidence of
pretext may also be circumstantial evidence under the McDonnell-Douglas
direct method. See Hooper, 804 F.3d at 853. At trial, Meyer must prove
that she was discharged on the basis of her disability. See 42 U.S.C. §
12112(a); Silk v. Board of Trustees Moraine Valley Community College
District No. 524, 795 F.3d 698, 705-07 (7th Cir. 2015). Meyer’s burden at
either stage of the case will very likely put at issue whether St. John’s
personnel truly fired her because of her treatment of Patients B and H.
Meyer’s burden at either phase of the case will put Stauffer’s credibility at
issue.
Proving Stauffer lied when she stated that Meyer’s treatment of
Patient B and Patient H showed a lack of clinical competence will likely
involve presenting evidence that Meyer’s treatment of Patient B and Patient
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H was competent. Proving that a health care professional provided
competent care is likely going to require expert testimony unless the
circumstances were such that a lay person could evaluate the quality of
care. See e.g., Coleman v. Wiencek, 2010 WL 1193715, at *2 (N.D. Ill
2010). The particular circumstances here concern the feeding tube formula
Meyer selected for these patients. The appropriate choice of a particular
feeding tube formula is a technical matter that may require an expert.
Meyer’s attorneys are highly qualified employment discrimination attorneys.
They knew that they might need expert testimony. They decided to wait
until after Stauffer’s deposition to disclose their plans. Under these
circumstances, the late disclosure was not substantially justified.
St. John’s indicates that the late disclosure would be harmless if St.
John’s had the opportunity to disclose its own outside expert on the issue
of whether Meyer’s treatment of Patient B and Patient H showed a lack of
clinical competence, as well as the other issues identified in Meyer’s
Second Supplemental Disclosure. See St. John’s Response, at 8-9. The
Court agrees. The Court, therefore, will allow Meyer’s request to amend
the Scheduling Order to allow the late disclosure of Ulery as an expert
witness. The Court will further amend the Scheduling Order to allow St.

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John’s the opportunity to disclose its own expert on the matters on which
Ulery will provide expert testimony.
Meyer also moves the Court, in the alternative, to strike Stauffer’s
deposition testimony that constituted expert opinions because St. John’s
did not disclose Stauffer as an expert. St. John’s counters that Meyer also
gave similar opinion testimony based on her clinical judgment. Regardless,
the Court will not strike any deposition testimony at the discovery phase of
this proceeding. This testimony may be relevant for discovery purposes
regardless of whether the testimony may be admissible for purposes of
summary judgment or at trial. The Court further makes no findings about
the admissibility of any portion either Stauffer or Meyer’s testimony at this
time. The parties may challenge admissibility before the District Court at
the appropriate time. The testimony will not be stricken at the discovery
phase.
THEREFORE, Defendant’s Motion to Strike Plaintiff’s Supplemental
Expert Disclosure and Plaintiff’s Designation of Julie Ulery as an Expert
Witness (d/e 38) (Motion 38) is DENIED, and Plaintiff Tiffany Meyer’s
Motion for Leave to Amend Scheduling Order, or, in the Alternative, Strike
the Opinion Testimony of Colleen Stauffer (d/e 41) (Motion 41) is
ALLOWED In part and DENIED in part.
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The Court hereby amends the Scheduling Order as follows. The
Court allows Plaintiff’s Supplemental Disclosure and Second Supplemental
Disclosure of Julie Ulery as an expert witness to offer expert testimony on
the matters described therein. The parties shall conduct the deposition of
Julie Ulery on or before May 15, 2017. St. John’s shall have until June 15,
2017, to disclose an expert to testify on the matters related to the matters
described in the Second Supplemental Disclosure and any additional
expert opinions to which Ulery testifies at her deposition. Meyer shall have
until July 15, 2017, to depose such expert. Existing discovery deadlines
shall remain in effect for all other discovery. The deadline for filing
dispositive motions is extended to August 15, 2017. The pretrial
conference set for October 30, 2017 is canceled and reset on November
27, 2017 at 2:00 p.m. in Courtroom 1 in Springfield, Illinois, before U.S.
District Judge Sue E. Myerscough. The jury trial set for November 14,
2017 is canceled and reset December 12, 2017 at 9:00 a.m. before Judge
Myerscough.
Meyer’s alternative request to strike the testimony of Meyer at the
discovery stage is DENIED.
ENTER: April 19, 2017

s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE
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