Kaepplinger et al v. Michelotti, M.D. et al
Filing
324
MEMORANDUM Opinion and Order signed by the Honorable Heather K. McShain on 5/4/2022. Mailed notice (sxw)
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANGELA KAEPPLINGER AND
BRIAN KAEPPLINGER,
No. 17 CV 5847
Plaintiffs,
Magistrate Judge McShain
v.
MICHAEL MICHELOTTI, M.D., ET AL.
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants Dr. Mark Zarnke’s and Surgical
Associates of Northern Illinois, LLC’s (“SANI”) Motion for Leave to Call Malcolm
Bilimoria, M.D. in Lieu of Joseph S. Kokoszka, M.D., as Defendants’ Expert Witness
at Trial (“Defendants’ Motion”) [320], 1 which Plaintiffs Angela Kaepplinger and Brian
Kaepplinger oppose [322]. The Court has considered the parties’ briefing and
attached exhibits. For the following reasons, Defendants’ Motion is granted.
Factual Background
The Court has already set forth the relevant factual background in its January
28, 2022 Memorandum Opinion and Order on the parties’ pre-trial motions in limine
[318], but will repeat it here for ease of reference.
Bracketed numbers refer to entries on the district court docket. Referenced page
numbers are taken from the CM/ECF header placed at the top of filings. For the sake of
efficiency, the Court will use “Defendants” herein to refer specifically to the movants, Dr.
Zarnke and SANI, in its discussion of their positions and arguments. The Court will
otherwise specify between the individual defendants, including the non-moving defendant
Dr. Michelotti, as necessary.
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This is a medical malpractice case. On August 12, 2015, Angela Kaepplinger
arrived at Rockford Memorial Hospital (“RMH”) in Rockford, Illinois with abdominal
pain. [130] 2, 6, ¶¶ 1, 34. A CT scan revealed a possible abscess in her colon. [Id.] 2,
6, ¶¶ 1, 35. She was admitted to and remained at RMH until August 29, 2015. [Id.]
6, 14, ¶¶ 35, 80. After her admission, Defendant Mark Zarnke, M.D., was consulted
and examined Ms. Kaepplinger, and noted his impression that she had transverse
diverticulitis with an abscess. [Id.] 6 ¶37. Dr. Zarnke discussed treatment options
with Ms. Kaepplinger, including antibiotic therapy and surgery, and ultimately
recommended surgery. [Id.]. During her hospital stay Ms. Kaepplinger eventually
underwent four surgical procedures, including a laparotomy and transverse
colectomy performed by Dr. Zarnke. [Id.] 6, ¶ 38; [221] 2. Plaintiffs’ Second Amended
Complaint alleges that the procedure led to multiple complications during Ms.
Kaepplinger’s hospitalization at RMH, including a delayed diagnosis of an anastomic
leak by Michael Michelotti, M.D., an infection, additional invasive procedures, and
permanent injuries. [130] 2, 14, ¶¶ 1, 80; [221] 2.
On August 10, 2017, Plaintiffs filed suit against Dr. Zarnke, Dr. Michelotti,
and their medical group, SANI, alleging medical negligence in the care provided to
Ms. Kaepplinger at RMH, and loss of consortium on behalf of Mr. Kaepplinger. [1];
[221] 2. 2 The case is currently set to proceed to trial starting on September 12, 2022.
[316].
The Complaint also named Michael McCarthy, D.O., RMH, and Rockford Health
Physicians as defendants. McCarthy and Rockford Health Physicians were later dismissed
without prejudice, pursuant to the parties’ stipulation. [140, 181]. Plaintiffs also settled with
Defendant RMH. [215]. Dr. Michelotti, Dr. Zarnke, and SANI remain defendants in the case.
2
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The present dispute arises out of Defendants Dr. Zarnke and SANI’s
designation of two surgical standard of care expert witnesses to testify at trial on
their behalf: Joseph Kokoszka, M.D., and Malcolm Bilimoria, M.D. Dr. Zarnke and
SANI first disclosed Dr. Kokoszka in their Rule 26(a)(2) disclosures submitted on May
31, 2019, which was the deadline set by the Court. [133]. 3 The disclosure indicated
that Dr. Kokoszka would testify as to the ways in which Dr. Zarnke met the applicable
standard of care of a reasonably careful general surgeon, and attached his written
report. [273-1] 2, 9. On the same day, former-Defendant RMH disclosed Dr. Bilimoria
as one of their Rule 26(a)(2)(B) witnesses. [273-2] 2. RMH’s disclosure indicated that
Dr. Bilimoria would testify consistent with his written report, in which he offered
opinions that both Dr. Zarnke and Dr. Michelotti acted appropriately within the
standard of care. [Id.] at 2, 18. Also on the same day, Defendant Dr. Michelotti, who
is represented by separate counsel than Dr. Zarnke and SANI, disclosed Anthony
Altimari, M.D., as his Rule 26(a)(2)(B) witness. [174-1] 1. The disclosure indicated
Dr. Altimari would testify to his opinion that Dr. Michelotti met the standard of care
of a reasonably careful general surgeon. [Id.]. In short, Dr. Zarnke and SANI
designated one expert on both of their behalf with respect to Dr. Zarnke’s conduct,
Dr. Michelotti designated one expert with respect to his conduct, and RMH
designated one expert with respect to both Dr. Zarnke and Dr. Michelotti.
The scheduling order was entered on January 10, 2019, by Judge Sidney I. Schenkier
(Ret.), the magistrate judge presiding over the case at the time. Pursuant to Local Rule
73.1(C), the parties consented to the reassignment of this case to a magistrate judge to
conduct all proceedings. [76].
3
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On October 13, 2020, about a month after RMH was dismissed from the case
pursuant to settlement, counsel for Dr. Zarnke and SANI notified Plaintiffs’ counsel
of their intent to call Dr. Bilimoria as “another expert witness at trial.” [273-3].
Defense counsel claimed they would call Dr. Bilimoria “pursuant to our Supplemental
Rule 26(a) disclosure,” and pointed to language in a footnote in their May 31, 2019,
disclosure which stated that Defendants “expressly incorporate herein and disclose
all of the individuals disclosed by the Plaintiff and Co-Defendants in this action and
all individuals who sat for depositions in this action.” [273] 3; [273-3]. Plaintiffs’
counsel objected to the addition of Dr. Bilimoria, and asked whether Dr. Zarnke and
SANI intended to call both Dr. Kokoszka and Dr. Bilimoria at trial, to which defense
counsel responded that they did. [Id.].
Procedural background
On November 12, 2021, in accordance with the scheduling order entered by the
Court, the parties submitted their pre-trial motions in limine. At the time, the trial
was set to begin on January 21, 2022. [300]. 4 In one of their motions, Plaintiffs sought
to preclude Defendants from calling Dr. Bilimoria at trial. [273]. Plaintiffs argued
that Dr. Bilimoria should be barred from testifying at trial under Federal Rule of
Evidence 403, because his testimony would be needlessly cumulative of the other
The case was originally set to proceed to trial in February 2020, but the Court stuck that
trial date at Plaintiffs’ request due to Plaintiffs’ counsel’s trial schedule in another case. [183,
185]. After a period where the parties engaged in ongoing settlement discussions, the Court
reset the trial for January 2021 [210]. The January 2021 trial was subsequently reset several
times throughout 2021 due to the ongoing COVID-19 pandemic. [219, 220, 228]. Eventually,
in August 2021, the parties jointly agreed to reset the trial for January 2022 with the hopes
that by then conditions would improve such that the trial could finally take place. [241, 242].
4
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defense expert witnesses, Dr. Kokoszka and Dr. Altimari. [273, 301]. Plaintiffs
further argued that Dr. Zarnke and SANI improperly attempted to add Dr. Bilimoria
as a witness after the Rule 26(a)(2)(B) disclosure deadline, and therefore were
precluded from calling him as an expert. [Id.]. In response, Defendants argued that
Dr. Bilimoria’s testimony would not be cumulative, because his testimony was
broader than that of Dr. Kokoszka and included opinions related to both Dr. Zarnke
and Dr. Michelotti. [279]. They also argued that Dr. Bilimoria was properly disclosed
under Rule 26(a)(2), and that even if his disclosure violated Rule 26, such violation
was harmless and resulted in no prejudice to Plaintiffs. [Id.]. Dr. Michelotti filed a
motion indicating he joined in Dr. Zarnke and SANI’s opposition to Plaintiffs’ motion
in limine. [290, 294].
The Court held a Final Pretrial Conference on December 16, 2021, which was
continued to December 20, 2021. [307, 309]. During the conference, the Court heard
oral argument on the parties’ motions in limine and ruled on the record with respect
to all but three of the motions. [309]. Among its rulings on the record, the Court
granted Plaintiffs’ motion to bar Defendants from calling Dr. Bilimoria at trial. [Id.].
The Court indicated that it would be following up on its oral ruling on that particular
motion with a written order that explained its reasoning, and that such order would
also provide the Court’s rulings on the remaining motions on which it had reserved
ruling. [309].
At the conclusion of the conference on December 20, 2021, in light of the Court’s
ruling on the record granting Plaintiff’s motion with respect to Dr. Bilimoria, counsel
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for Dr. Zarnke and SANI asked that they be allowed to pick which expert witness—
between Dr. Kokoszka and Dr. Bilimoria—they call at trial. Counsel argued that in
situations where a court finds that a parties’ two proposed experts are cumulative,
the party that is proposing to call those experts is given the opportunity to decide
which expert it will ultimately call. Plaintiffs objected to this request on two bases:
the cumulative nature of Dr. Bilimoria’s testimony as to both Dr. Kokoszka and to
Dr. Altimari, and the untimely and improper disclosure by Dr. Zarnke and SANI of
Dr. Bilimoria under Rule 26(a)(2)(B). Counsel for Dr. Michelotti did not join in the
request and stated that Dr. Michelotti only intended to call his expert Dr. Altimari at
trial. The Court indicated it would consider Dr. Zarnke and SANI’ request as part of
issuing its written order.
On January 4, 2022, before the Court had issued its written opinion on the
parties’ motions in limine, the January 22, 2022 trial date was stricken due to the
ongoing COVID-19 pandemic. [312, 316]. Although the Court was prepared to
accommodate a Spring or Summer jury trial, counsel for Dr. Zarnke and SANI were
unavailable until September 2022, due to counsel’s packed trial schedule resulting
from the pandemic. [316]. Plaintiffs’ counsel objected to delaying the trial until
September 2022, and requested an earlier date in Spring. Although the Court was
mindful of Plaintiffs’ opposition to a longer delay, given the state of the COVID-19
pandemic, and taking into consideration the availability of counsel and the parties’
rights to proceed to trial with their attorneys of choice, the Court found it appropriate
to proceed with resetting the jury trial for the September 2022 date. See [316] (citing
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Arthur Pierson & Co. v. Provimi Veal Corp., 887 F.2d 837, 839 (7th Cir. 1989) (noting
that district courts have “substantial inherent power to control and to manage [their]
docket”). The trial date was rescheduled for September 12, 2022. [Id.].
On January 28, 2022, the Court issued its Memorandum Opinion and Order
addressing the parties’ outstanding motions in limine, and providing the Court’s
reasoning for granting Plaintiffs’ motion to bar Dr. Bilimoria. [318]; see generally
Kaepplinger v. Michelotti, No. 17 CV 5847, 2022 WL 267886 (N.D. Ill. Jan. 28, 2022).
The Court found that Dr. Kokoszka and Dr. Bilimoria would “present nearly identical
opinions on the same subject, that is, that Dr. Zarnke did not deviate from the
standard of care of a reasonably careful general surgeon.” [318] 11. The Court also
found that, insofar as Dr. Bilimoria’s opinions were broader than those of Dr.
Kokoszka, because they also covered Dr. Michelotti’s conduct, his opinions with
respect to Dr. Michelotti were likewise cumulative of Dr. Michelotti’s expert witness,
Dr. Altimari. [Id.] 15. The Court thus held that Dr. Bilimoria’s testimony would be
unnecessarily cumulative of Dr. Kokoszka and Dr. Altimari, and therefore Dr. Zarnke
and SANI would not be allowed to call both experts at trial. [Id.] 16.
As to Dr. Zarnke and SANI’ request at oral argument that they be allowed to
choose between Dr. Kokoszka and Dr. Bilimoria, the Court found that, given the
manner in which Dr. Bilimoria had been disclosed, and the fact that the trial date
had been reset for September 12, 2022, there were issues that required further
clarification by the parties before the Court could decide the issue. [Id.] 17. The Court
therefore denied without prejudice Dr. Zarnke and SANI’ request to choose between
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the two experts, with leave for those Defendants to formally move to call Dr. Bilimoria
in lieu of Dr. Kokoszka should they decide to continue to seek that relief.
On February 21, 2022, Dr. Zarnke and SANI proceeded to file their motion
formally asking for leave to call Dr. Bilimoria at trial in lieu of Dr. Kokoszka. [320].
Plaintiffs filed their opposition on March 22, 2022. [322]. The matter is thus fully
briefed and the Court can proceed to the merits of Defendants’ request.
Legal Standards
This is the second time in this case a party has asked the Court for leave to
change their designated expert witness for trial: Plaintiffs’ previously moved to
substitute their originally disclosed standard of care expert, Dr. Alexander Nagel, for
a different expert witness, Dr. Joshua Braveman, M.D. See [236]; Kaepplinger v.
Michelotti, No. 17 CV 5847, 2021 WL 2633312 (N.D. Ill. June 25, 2021). As the Court
noted in its ruling on Plaintiffs’ motion to substitute, the Federal Rules of Civil
Procedure do not expressly dictate the standard a court should use to assess a party’s
request to substitute an expert witness for trial. See generally Kaepplinger, 2021 WL
2633312, at *2-3. Some courts treat such motions as a request to amend the
scheduling order under Rule 16(b)(4), which requires a showing of good cause, where
others look to Rules 26 and 37 by construing the request as an untimely expert
designation under Rule 26(a) and deciding whether to exclude the substitute expert
as a discovery violation under Rule 37(c). Id. (collecting and reviewing cases).
Here, Defendants do not frame their motion as a request to “substitute” per se,
but rather as a request to call Dr. Bilimoria “in lieu of” Dr. Kokoszka. This distinction
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is presumably because, as discussed further below, Defendants maintain that Dr.
Bilimoria has always been properly designated as one of their expert witnesses, and
therefore they are not seeking to substitute, but merely to pick among their
previously disclosed experts. Regardless of the framing though, both sides present
their arguments in terms of Rules 26 and 37, as opposed to Rule 16. The Court will
therefore analyze Defendants’ Motion under the same standard used by the parties. 5
Rule 26(a)(2)(D) provides that “[a] party must make [its expert] disclosures at
the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). Under
Rule 37(c)(1), “[i]f a party fails to provide information or identify a witness as required
by Rule 26(a) or (e), the party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1)).
The determination of whether a Rule 26(a) violation is justified or harmless
under Rule 37(c) is entrusted to the broad discretion of the district court. MidAmerica Tablewares, Inc. v. Mogi Trading Co., Ltd., 100 F.3d 1353, 1363 (7th Cir.
1996). The Court “need not make explicit findings concerning the existence of a
substantial justification or the harmlessness of a failure to disclose.” David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003) (citation omitted). Instead, the
The Court thus need not decide whether the substitution should be allowed under Rule
16(b)(4). The Court notes however, as it did in its ruling on Plaintiffs’ motion, that some
courts presented with motions to substitute find the standards under Rules 16(b)(4) and
37(c)(1) to be “coexistent.” See Kaepplinger, 2021 WL 2633312, at *4 (holding the Court did
not need to determine whether there was any distinction between the standards of the two
rules, because it found Plaintiffs had satisfied both standards) (citing J.F. by Sifuentes v.
Abbott Laboratories, Inc., No. 14-CV-847, 2017 WL 992781, at *2 (S.D. Ill. Mar. 15, 2017).
5
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Seventh Circuit has explained several factors that guide the Court’s determination:
“(1) the prejudice or surprise to the party against whom the evidence is offered; (2)
the ability of the party to cure the prejudice; (3) the likelihood of disruption to the
trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an
earlier date.” Id. (citations omitted). “The offending party bears the burden to show
that its Rule 26 failure is substantially justified or harmless.” PCM Leasing, Inc. v.
BelGioso Cheese, Inc., No. 16 CV 50076, 2019 WL 4567576, *3 (N.D. Ill. July 11, 2019).
Discussion
Defendants advance three main arguments in support of their request to call
Dr. Bilimoria at trial in lieu of Dr. Kokoszka: (1) when a party has an expert witnesses
barred as cumulative, they have the right to choose which of those experts testifies
at trial; (2) Dr. Bilimoria was properly disclosed under Rule 26; and (3) even if the
disclosure of Dr. Bilimoria did not comport with Rule 26, any violation of the rule was
harmless. [320] 2, 10.
The Court addresses each of these arguments below, as well as Defendants’
proposal for the scope of Dr. Bilimoria’s testimony should he be allowed to testify. The
Court finds that Defendants’ attempt to belatedly add Dr. Bilimoria as an expert
witness was not proper under Rule 26, and they therefore have no “right” to choose
between him and their properly disclosed expert, Dr. Kokoszka. However, the Court
also finds, based on its consideration of the David v. Caterpillar factors mentioned
above, that Defendants’ untimely disclosure of Dr. Bilimoria is harmless, and they
will therefore be permitted to call him at trial in lieu of Dr. Kokoszka. Finally, the
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Court holds that Dr. Bilimoria’s testimony will be limited to the same subject as Dr.
Kokoszka’s expert report, that being Dr. Zarnke’s conduct.
A. Dr. Zarnke and SANI’s disclosure of Dr. Bilimoria was improper,
therefore they have no right to “choose” between the two experts.
As a threshold matter, Defendants are correct that when a party or parties
have disclosed multiple Rule 26(a)(2) expert witnesses on the same subject, and a
court subsequently finds one or more of the experts would be cumulative, the court
will generally allow the party to choose which of its designated experts it ultimately
calls at trial. See [320] 2-5. Indeed, as Defendants point out in their motion, this
Court’s order holding that Dr. Bilimoria’s testimony would be cumulative cited to
many cases where parties were permitted to choose between their cumulative
experts. See Kaepplinger, 2022 WL 267886, at *5-6 (citing Dahlin v. Evangelical
Child & Fam. Agency, No. 01 C 1182, 2002 WL 31834881, at *5 (N.D. Ill. Dec. 18,
2002) (holding that two of plaintiffs’ designated experts were cumulative and
therefore they would “be required to choose between these two expert witnesses”);
Abrams v. Van Kampen Funds, Inc., No. 01 C 7538, 2005 WL 88973, at *11 (N.D. Ill.
Jan. 13, 2005) (holding defendants were precluded from calling both experts that
authored a joint report because their testimony would be cumulative, but that the
defendants “may choose which expert they prefer to use”); Hall v. Hall, No. 14 C 6308,
2018 WL 1695365, at *5 (N.D. Ill. Apr. 7, 2018) (finding defendants two retained
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standard of care experts would present cumulative testimony, and therefore the
“defendants will have to choose between [the experts] to testify. . .”).
However, as Plaintiffs point out in response, in none of the cases cited by
Defendants was there also a dispute over whether one of the cumulative experts was
properly and timely disclosed under Rule 26(a)(2). [322] 4. In fact, the Court noted in
its prior order on the parties’ motions in limine that the circumstances here were
distinguishable from the cases cited above, because those cases all involved parties
choosing between experts “previously included on their timely Rule 26(a)(2)
disclosures.” See Kaepplinger, 2022 WL 267886, at *8. 6 Thus, Defendants’ argument
that they have a right to choose between the two experts presupposes that Dr.
Bilimoria was properly disclosed as one of their expert witnesses in the first place.
Though the Court stopped short of expressly ruling on that question in its prior order,
it does so now, and holds that the disclosure was improper.
As noted above, the deadline for the parties to disclose their Rule 26(a)(2)(B)
expert witnesses was May 31, 2019. [133]. In their original response to Plaintiffs’
motion in limine, Defendants claimed that Dr. Bilimoria was in fact properly and
timely disclosed by this deadline, because their May 2019 disclosure included
This is true in the cases cited in the preceding paragraph, as well as the additional cases
Defendants cite in their brief from across various district courts. See [320] 4-5 (citing Evans
v. Mauch, No. 15-9100-CM, 2016 WL 8254775, at *2 (D. Kan. June 1, 2016); Stricklin v.
Bordelon, No. 19-CV-1242-WJM-KMT, 2021 WL 2375868, at *3 (D. Colo. June 10, 2021);
AVNET, Inc. v. MOTIO, Inc., No. 12 C 2100, 2016 WL 3365430, at *2 (N.D. Ill. June 15, 2016);
Sunflower Condo. Ass'n, Inc. v. Auto-Owners Ins. Co., No. 16-CV-2946-WJM-NYW, 2018 WL
1250607, at *3 (D. Colo. Mar. 12, 2018)). While these courts all allowed the parties involved
to choose between their cumulative experts, none of the cases involved a challenge to whether
one of the experts was timely disclosed.
6
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language in a footnote adopting all of their co-defendants’ disclosures. [279] 6.
Defendants suggested that their counsel’s message to Plaintiffs’ counsel in October
2020—16 months later when RMH was dismissed from the case—indicating that they
intended to call Dr. Bilimoria as “another expert witness at trial” was not a new or
separate disclosure, but rather was meant to “remove any doubt as to their continuing
intention to call Dr. Bilimoria at trial even after the settlement of the co-defendant
hospital.” [279] 6. Defendants repeat these same arguments in their instant motion,
suggesting that Dr. Bilimoria was adopted by reference in their timely Rule
26(a)(2)(B) disclosure, and that their October 2020 communication was merely meant
to confirm and reinforce their intention to call Dr. Bilimoria at trial. See [320] 7, 10.
The Court is not persuaded that Defendants’ inclusion of boilerplate language
generally adopting all witnesses disclosed by all other parties—which was included
in a footnote in their disclosure—satisfies the requirements of Rule 26(a)(2)(B), which
requires a party to clearly identify the expert witnesses that it intends to call at trial.
See, e.g., Station Enterprises, Inc. v. Ganz, Inc., No. 07-CV-14294, 2009 WL 3059148,
at *5 (E.D. Mich. Sept. 24, 2009) (“the Court does not find that boiler plate
reservations of rights that conflict with the Court's scheduling order allow for the
tardy identification of witnesses.”). Defendants have not cited, and the Court has been
unable to find, an example of a case where a court found similar boilerplate language
in a Rule 26(a)(2)(B) expert disclosure was sufficient to allow a party to designate an
expert for trial that was only disclosed by another party that had been dismissed from
the case.
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Plaintiffs, on the other hand, point out that the Seventh Circuit has held that
“[t]he plain meaning of Rule 26(a)(2) demands a formal designation for expert
disclosures.” See [322] 3 (citing Karum Holdings LLC v. Lowe's Companies, Inc., 895
F.3d 944, 951 (7th Cir. 2018) (emphasis added)). In Karum Holdings LLC, the
Seventh Circuit found that the district court did not abuse its discretion in ruling that
a party’s purported expert disclosure was inadequate, where the party only listed the
proposed witness in its timely disclosure as a Rule 26(a)(1)(A) fact witness, and then,
as the trial approached, attempted to claim the individual could provide expert
testimony. Karum Holdings LLC, 895 F.3d at 951. Although the facts of Karum
Holdings LLC are distinguishable—here Dr. Bilimoria was disclosed as an expert
witness, not a fact witness—the general principal that the plain language of Rule
26(a)(2) requires a formal designation of experts is equally applicable. Dr. Zarnke and
SANI were required to formally designate all their anticipated expert witnesses for
trial, and the Court finds that they cannot escape this formal requirement by relying
on a footnote incorporation of all other witnesses disclosed by all other parties.
The Court acknowledges, of course, that Dr. Zarnke and SANI likely
anticipated little need to formally designate Dr. Bilimoria for themselves by the May
2019 deadline, as at that time he was being retained and disclosed by a co-defendant
represented by separate counsel. However, whether or not they had reason to
designate Dr. Bilimoria prior to the deadline, once RMH settled and Dr. Zarnke and
SANI decided they would like to use RMH’s expert, their proper course would have
been to seek leave to modify the Court’s scheduling order under Rule 16(b)(4) so that
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they could formally supplement their Rule 26(a)(2) disclosures. See Station
Enterprises, Inc., 2009 WL 3059148, at *5; Fed. R. Civ. P. 16(b)(4) (“A schedule may
be modified only for good cause and with the judge's consent.). This they failed to do,
opting instead to take the position that Dr. Bilimoria had already been disclosed prior
to the deadline because of their footnote incorporation of all other witnesses. But, as
the Court has already stated, this position has no support in the case law, and a
boilerplate footnote does not constitute a formal disclosure as is required under Rule
26(a)(2).
The Court thus finds that Defendants did not timely and properly disclose Dr.
Bilimoria as a Rule 26(a)(2)(B) witness. They therefore have no “right” to choose
between the two cumulative expert witnesses.
B. The improper disclosure is harmless.
As the Court finds that Dr. Zarnke and SANI did not properly include Dr.
Bilimoria in their May 2019 Rule 26(a)(2)(B) disclosure, the question is whether their
failure to timely disclose him, and their attempt to add him as a witness for trial now,
is substantially justified or is harmless. See Fed. R. Civ. P. 37(c)(1)) (“[i]f a party fails
to provide information or identify a witness as required by Rule 26(a) or (e), the party
is not allowed to use that information or witness to supply evidence . . . at a trial,
unless the failure was substantially justified or is harmless.”); see also David, 324
F.3d at 857. The Court finds that, based on its consideration of the David v.
Caterpillar factors, Dr. Zarnke and SANI’s belated addition of Dr. Bilimoria is
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harmless, and therefore they should be permitted to call him as an expert at trial in
lieu of Dr. Kokoszka.
1. Prejudice or Surprise
The Court first considers whether Plaintiffs will be prejudiced or surprised
should Defendants be permitted to call Dr. Bilimoria in lieu of Dr. Kokoszka.
Defendants claim that there can be no claimed surprise or prejudice should they be
permitted to call Dr. Bilimoria, because Plaintiffs have had his disclosure and expert
report for well over two years and have already taken his deposition. [320] 6-7.
Further, Defendants point out that the Court has already ruled that Dr. Bilimoria’s
and Dr. Kokoszka’s testimony, at least with respect to Dr. Zarnke, is the same, i.e.
cumulative, therefore there is no prejudice or surprise to Plaintiffs in having to face
one expert over the other. [Id.]. Plaintiffs argue in response that Defendants are
ignoring the strategic considerations they made in deciding to settle with RMH, one
of which was the relative strength of RMH’s disclosed expert, Dr. Bilimoria, as
opposed to the other defendants’ experts. [322] 6. Plaintiffs assert they were “entitled
to assume the Court will properly enforce Rule 26(a)” when formulating their
litigation strategy, and that to allow Dr. Zarnke and SANI to rely on RMH’s properly
disclosed expert after they have settled, whom Defendants seem to agree is a
“superior” expert, prejudices Plaintiffs by depriving them of the benefit of the bargain
of their settlement with RMH. [Id.]. In other words, Plaintiffs claim they would be
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prejudiced because they would be forced to prepare for an expert witness at trial who
was only properly disclosed by a party with whom they have settled. [Id.].
The Court acknowledges that there may have been an initial unfair surprise
to Plaintiffs in October 2020, when Defendants first indicated their intent to call Dr.
Bilimoria at trial, which at the time was scheduled to begin in just a few months in
January 2021. But of course, that trial date has since been reset several times, and
is currently four months away in September 2022. Thus, over 18 months have now
passed since Plaintiffs were initially notified that Defendants would attempt to call
Dr. Bilimoria at trial. Further, Plaintiffs had Dr. Bilimoria’s expert disclosure and
report from RMH as of May 2019, and deposed him on his report in July 2019 [320]
6-7; [295] 18. At this time then, nearly three years after Dr. Bilimoria’s report was
disclosed and over 18 months after Defendants indicated their intent to call him at
trial, the Court believes there is minimal prejudice or surprise from Dr. Bilimoria’s
testimony should he be called at trial.
Additionally, while it is somewhat ironic for Defendants to now point to the
cumulative nature of the expert witnesses support their argument that Plaintiffs face
no prejudice, given that Defendants vigorously disputed that the testimony was
cumulative, the Court does find Defendants’ point valid in relation to their instant
motion. That Dr. Kokoszka’s and Dr. Bilimoria’s testimony with respect to Dr. Zarnke
overlaps substantially, to the point the Court found them cumulative, seems to belie
the risk that Plaintiffs will be prejudiced or surprised in having to prepare for one
expert’s testimony over the other.
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As to Plaintiffs’ arguments in response, the Court has no reason to doubt
Plaintiffs’ claim that their settlement with RMH was motivated, at least in part,
based on their beliefs regarding the relative strength of the parties’ experts. The
Court thus recognizes that there may be some measure of “harm” to the Plaintiffs in
being required to prepare for an expert at trial whom they had anticipated would no
longer be involved in the case due to their settlement with RMH. But Plaintiffs cite
to no authority that this harm of being denied the benefit of their settlement is the
kind of prejudice that is contemplated by Rule 37 and the David v. Caterpillar factors.
Indeed, absent some express agreement between the parties to a settlement and their
expert witnesses, there is nothing to prevent non-settling defendants such as Dr.
Zarnke and SANI from pursuing and attempting to call an expert witness of a settled
co-defendant for their own case.
Certainly, there are procedural steps a party must generally follow to
designate a new expert which, as discussed above, Defendants failed to follow here.
But despite their suggestion to the contrary, Plaintiffs were not “entitled to assume”
that the Court would rule in their favor and exclude Dr. Bilimoria from trial based
on Defendants’ failure to comply with the rules. Rather, as Plaintiffs are well aware
from the Court’s ruling on their own motion to substitute, Rule 37 creates an
exception to the sanction of exclusion where an untimely disclosure is harmless or
substantially justified, see Fed. R. Civ. P. 37(c)(1), and the determination of whether
a discovery violation is harmless is left to the broad discretion of the trial Court. MidAmerica Tablewares, Inc., 100 F.3d at 1363. Hence there was always the possibility
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that the Court would permit Defendants to call Dr. Bilimoria at trial, even if
Defendants plainly violated Rule 26, and Plaintiffs’ assumption about how the Court
would ultimately rule on that question is not a basis to claim prejudice from a ruling
going the other way.
Finally, insofar as Plaintiffs face any “prejudice” from being forced to prepare
for what they consider to be a superior expert to Dr. Kokoszka, this is not the kind of
“prejudice” that warrants exclusion. See Hicks v. Avery Drei, LLC, 654 F.3d 739, 744
(7th Cir. 2011) (“[plaintiff’s] requested remedy convinces us that the alleged prejudice
arises from the evidence's power to persuade and not the timing of its disclosure. That
is not a kind of ‘prejudice’ that warrants exclusion.”) (citing Cobige v. City of Chicago,
Ill., 651 F.3d 780, 785 (7th Cir.2011) (“This kind of effect is not ‘prejudice’ at all—not
unless we count as ‘prejudice’ all evidence that undermines the other side's
contentions....”)). Although Plaintiffs frame their arguments in terms of the timing of
the disclosure and the benefit of their settlement, implicit in their argument is the
suggestion that they face prejudice because Dr. Bilimoria is a superior or more
persuasive witness than Dr. Kokoszka. It therefore strikes the Court that at least
part of the prejudice Plaintiffs are claiming here “arises from the evidence’s power to
persuade and not the timing of the disclosure,” which is “not a kind of ‘prejudice’ that
warrants exclusion.” See Id. 7
The Court recognizes that in its ruling on Plaintiffs’ motion to substitute it found there
would be “some measure of prejudice” to Defendants where Defendants pointed in part to the
fact that Dr. Braveman was a “superior” expert to Dr. Nagel. Kaepplinger, 2021 WL 2633312,
at *5. However, the circumstances are notably distinguishable, as there Plaintiffs were
seeking to substitute an entirely new expert after the close of discovery whose report had just
recently been disclosed and whom had never been deposed. Thus there were sources of
7
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On balance, the Court finds that Plaintiffs will not face any significant
prejudice or surprise if forced to prepare for Dr. Bilimoria at trial. This factor thus
weighs in favor of Defendants.
2. Ability to cure prejudice and likelihood of disruption to trial
Though the Court does not find any significant prejudice to Plaintiffs in Dr.
Bilimoria being allowed to testify at trial, to the extent such prejudice does exist, the
Court also finds that Plaintiffs have sufficient time and ability to cure it. The second
factor thus also weighs in favor of Defendants.
Defendants argue that Plaintiffs have already had a substantial opportunity
to cure any prejudice since the Defendants notified them of their intent to call Dr.
Bilimoria in October 2020. [320] 7-8. Defendants point out that after learning of this,
Plaintiffs did not file a motion or seek any supplemental deposition, or seek
supplemental discovery. [Id.]. Instead, Defendants note that Plaintiffs filed their own
motion to substitute their expert, and sent Dr. Bilimoria’s deposition to that expert
so that he could respond. Defendants suggest that this demonstrates Plaintiffs in fact
assumed that Dr. Bilimoria may still be a witness in the case. [Id.] 8. Plaintiffs assert
in response that this is untrue, and regardless argue that the Seventh Circuit has
rejected the argument that a Rule 26(a) violation is harmless simply because the
opposing party knew a witness may testify in some capacity. [Id.]. Plaintiffs further
argue that the October 2020 communication only indicated an intent to call both
prejudice other than Defendants’ claim that Dr. Braveman was “superior.” And regardless,
the Court allowed the substation.
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witnesses, not the Defendants’ current request to replace Dr. Kokoszka with Dr.
Bilimoria. [Id.].
Plaintiffs are correct that, in general, a late disclosure is not rendered harmless
simply because the party may have known that the witness would testify in some
capacity. See Karum Holdings LLC, 895 F.3d at 952 (“we have previously rejected
arguments that a Rule 26(a) violation is harmless simply because the opposing party
knew the witness would testify in some capacity”). Thus, the fact that the Plaintiffs
have known since October 2020 that Defendants would try to call Dr. Bilimoria does
not, on its own, make the late disclosure harmless. Additionally, as to Defendants’
argument that Plaintiffs took no immediate action upon receipt of Defendants’
October 2020 letter, the Court finds that can be explained by the fact that at the time,
the trial was set to begin in January 2021, and motions in limine were due in
December 2020. Plaintiffs presumably intended to file a motion to bar Dr. Bilimoria
by the deadline, but the trial date and associated motion deadlines were subsequently
reset, and Plaintiffs were not obligated to file anything in the interim.
But the question under the second factor is whether Plaintiffs have the ability
to cure any prejudice from the late disclosure. And here, it is not just that Plaintiffs
have known since October 2020 that Defendants would try to call Dr. Bilimoria at
trial that is significant, but also that the trial date has been reset again and there
now are four months still for Plaintiffs to prepare for Dr. Bilimoria’s testimony.
Further, this is not a situation where the Court would need to reopen discovery or a
previously unknown witness would need to be deposed, or where any additional
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discovery needs to happen in order to cure the prejudice from the late disclosure.
Indeed, not once in any of their briefing, either in their motion in limine or their
response brief here, have Plaintiffs identified any additional relief, such as
supplemental discovery or depositions, that they would need in order to prepare for
Dr. Bilimoria’s testimony at trial. Rather, Plaintiffs merely need to prepare for an
examination at trial of a different expert than they had preferred and who they may
not have planned to see, but whom they have already deposed and whose report they
have had for almost three years. Thus, insofar as there is any prejudice, the Court
finds that the four months that remain before trial provide more than adequate time
for Plaintiffs to cure that prejudice and prepare to cross-examine Dr. Bilimoria at
trial.
For similar reasons, the Court also finds that the third factor, the likelihood of
disruption to trial, weighs in favor of Defendants. While Plaintiffs suggest that
Defendants “11th hour attempt at a substitution is a blatant overreach,” and “would
be drastic and unnecessary,” they do not point to any concrete manner in which
allowing the substitution would be disruptive. [322] 7. Regardless, as the Court has
explained above, Plaintiffs have sufficient time to prepare for Dr. Bilimoria at trial
and requiring them to prepare for his testimony will not disrupt the trial date four
months from now. Nor will it disrupt the subject matter or length of the trial, as
Defendants will merely be substituting one expert for another, who will testify on the
same topics. This factor thus also weights in favor of Defendants.
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3. Bad faith or willfulness
As to the bad faith or willfulness in the untimely disclosure, the Court finds
that this factor does weigh slightly against Defendants. While there is not enough
evidence to find that Defendants acted in bad faith, the Court finds that the late
disclosure was at the very least willful. Dr. Zarnke and SANI timely disclosed only
one Rule 26(a)(2)(B) expert, Dr. Kokoszka, who was only designated to testify on the
topic of Dr. Zarnke’s conduct. They appeared ready to rely on their co-defendants
RMH and Dr. Michelotti to call their own experts at trial on the issue of Dr.
Michelotti’s conduct right up to the eve of the January 2021 trial date in October
2020, when RMH settled. Only then did Dr. Zarnke and SANI attempt to belatedly
designate Dr. Bilimoria, whose report covered both Dr. Zarnke and Dr. Michelotti, by
relying on a boilerplate footnote in their disclosure. The Court has already explained
that this was not the proper means for them to attempt to designate an additional
expert witness.
Additionally, as Plaintiffs have noted in their briefing, Defendants’ original
email message in October 2020 did not clearly indicate that Defendants intended to
call Dr. Bilimoria to testify as to both Dr. Zarnke and Dr. Michelotti. While the
communication stated he would testify “pursuant to his report,” which covered both
doctors, it was reasonable for Plaintiffs to assume that Dr. Zarnke and SANI intended
to add Dr. Bilimoria to provide additional testimony only with respect to Dr. Zarnke,
given that those Defendants had previously designated only a single expert on their
behalf, Dr. Kokoszka, who was to testify only as to Dr. Zarnke’s conduct. It was not
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until Defendants’ response to Plaintiffs’ motion in limine, filed over a year later in
November 2021, that Defendants made it explicit that they intended to try and call
Dr. Bilimoria for opinions related to both Dr. Zarnke and Dr. Michelotti.
The Defendants’ course of conduct here in attempting to add Dr. Bilimoria on
the eve of trial, and their lack of clarity with respect to the scope of his testimony,
appear to have been done with the purpose of gaining a late strategic advantage.
While not express bad faith, this demonstrates at the very least willful behavior and
the Court thus finds this factor weighs against Defendants.
4. On balance, the Court finds the untimely disclosure is harmless.
Based on its consideration of all the factors, the Court holds that Defendants’
discovery violation is harmless and they should be permitted to call Dr. Bilimoria.
Defendants argue that an instructive case is Stafford v. Carter from the
Southern District of Indiana, which both parties cited in support of their respective
positions in their motion in limine briefing. See 2018 WL 43616139 (S.D. IN. 2018);
see also [297] 9-10; [301] 3. In Stafford, the defendants attempted to rely in their
summary judgment brief on portions of testimony from a fact witness which the
plaintiff argued constituted expert opinion testimony. Id. The plaintiff argued that
because the defendants had failed to disclose the witness as an expert, they were not
permitted to rely on the expert opinion testimony. Id. The defendants responded that
they were not required to disclose the witness as an expert because a co-defendant
who was previously dismissed from the case due to settlement had properly disclosed
the witness. Id. at *1-2. The court rejected defendants’ argument that Rule 26 created
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an implicit “co-defendant exception” to the disclosure requirements and barred
defendants from relying on the testimony. Id. at *2, 4-5. Defendants point out that,
in reaching its ruling, the Stafford court commented that “when the settlement
became known, Defendants could have avoided any harm by notifying Plaintiffs that
they nonetheless intended to utilize the testimony of [the settled defendant’s] expert
witnesses.” Id; [320] 10. Thus Defendants argue that because here they did notify
Plaintiffs of their intent to utilize the testimony of the settled defendant’s expert
witness, they “cured any potential harm. [320] 10.
The Court finds that Stafford is distinguishable in some respects. First, the codefendant settled several months prior to the close of discovery. Id. at *3. In this case,
RMH settled well after the close of discovery and just before trial. At that point, as
discussed above, Defendants needed to do more than merely send an email, but
should have moved for formal leave to supplement their disclosure. Second,
Defendants’ message in October 2020 did not clearly indicate they would attempt to
utilize Dr. Bilimoria for his opinions with respect to both Dr. Zarnke and Dr.
Michelotti. However, while these issues support the Court’s finding above that
Defendants never properly disclosed Dr. Bilimoria, the Court agrees Stafford is
persuasive to the extent the harm from Defendants’ improper disclosure was lessened
by their notice to Plaintiffs after RMH settled that they intended to rely on Dr.
Bilimoria. In short, the October 2020 communication put Plaintiffs on notice that
Defendants would attempt to rely on Dr. Bilimoria, and they should not have
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assumed the Court would necessarily disallow him simply because his disclosure was
untimely.
The Court must also acknowledge that it finds the additional extension of the
trial date to September 2022 carries significant weight in balancing the applicable
factors here. The Court does not approve of the manner in which Defendants have
gone about their disclosure of Dr. Bilimoria and their failure to follow procedural
rules. Further, the Court is mindful that just because there is sufficient time to cure
any harm does not make a late disclosure harmless. But the Court is persuaded that
the four months that remain until trial allow more than sufficient time for Plaintiffs
and their counsel to prepare for Dr. Bilimoria’s testimony, particularly in light of the
fact that they have now had his report for nearly three years, and over 18 months
have passed since they first were notified that Defendants would attempt to call Dr.
Bilimoria at trial.
In sum, the Court finds that Defendants have met their burden to demonstrate
that their discovery violation is harmless, and the Court thus holds they will be
permitted to call Dr. Bilimoria at trial.
C. Dr. Bilimoria’s testimony will be limited to Dr. Zarnke’s conduct.
All that remains is the scope of Dr. Bilimoria’s testimony that will be
permitted. In their opposition to Plaintiffs’ original motion in limine, Defendants
advanced the argument that because SANI is technically a separate defendant than
Dr. Zarnke, and SANI’s liability is based on a respondeat superior theory of liability
for the conduct of both Dr. Zarnke and Dr. Michelotti as its agents, Dr. Bilimoria’s
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testimony would not be cumulative because his opinions covered the standard of care
of both doctors. [279] 4-5. In other words, Defendants claimed that Dr. Kokoszka was
to testify on behalf of Dr. Zarnke, and Dr. Bilimoria was to testify on behalf of SANI,
whose liability included both doctors, therefore their testimony was not cumulative.
However, this argument ignored the fact that Dr. Bilimoria’s report and expert
testimony was not only cumulative with respect to Dr. Kokoszka, but the aspects of
his report covering Dr. Michelotti were cumulative of Dr. Michelotti’s own expert. Dr.
Altimari. See Kaepplinger, 2022 WL 267886, at *6.
In their instant motion, Defendants maintain that, since it has always been
their intent to call Dr. Bilimoria for both doctors, if they are allowed to call him at
trial now his testimony should encompass both Dr. Zarnke and Dr. Michelotti as
reflected in his report and deposition testimony. [320] 11. However, now apparently
conceding the Rule 403 problem that would present with respect to Dr. Michelotti’s
expert, Dr. Zarnke and SANI further state that all of defense counsel, including
counsel for Dr. Michelotti, have conferred and agreed that if Dr. Bilimoria is
permitted to testify as to the care of both doctors, Dr. Altimari would be withdrawn
as an expert. [Id.] 12. Conversely, Defendants state that if the Court rules that Dr.
Bilimoria cannot testify as to the allegations against Dr. Michelotti, he will testify
consistent with respect to his report as to Dr. Zarnke only, and Dr. Altimari will
testify as to Dr. Michelotti. [Id.].
Plaintiffs argue that if Dr. Bilimoria is permitted to testify, his testimony
should be limited to only Dr. Zarnke because: (1) Defendants Dr. Zarnke and SANI’s
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timely Rule 26(a)(2) witness, Dr. Kokoszka, only offered opinions regarding Dr.
Zarnke, and if Dr. Zarnke and SANI had intended to elicit testimony regarding Dr.
Michelotti they should have timely disclosed those opinions; (2) Dr. Michelotti’s
counsel sated at the Final Pretrial Conference in December 2021 that he intended to
call Dr. Altimari; and (3) while the expert reports and ultimate opinions of Dr.
Bilimoria and Dr. Altimari overlap, Dr. Altimari made several admissions in his
deposition testimony that weaken Defendants case, and Defendants are merely
seeking to “clean up” those admissions by substituting Dr. Bilimoria. [322] 9-15.
The Court holds that Dr. Bilimoria will not be permitted to testify as to the
aspect of his report covering Dr. Michelotti, and Dr. Bilimoria’s testimony will be
limited to his opinions concerning Dr. Zarnke’s conduct. As Plaintiffs point out, Dr.
Zarnke and SANI’s timely disclosed expert, Dr. Kokoszka, was designated to testify
regarding only Dr. Zarnke’s conduct. While the Court has found that, for the reasons
discussed above, Defendants will be permitted to substitute Dr. Bilimoria for Dr.
Kokoszka, Dr. Bilimoria’s testimony should be limited to the same subject matter as
the timely disclosed witness whom he will replace. See Kaepplinger, 2021 WL
2633312, at *6 (“to minimize prejudice to the opposing party, ‘courts generally limit
the scope of the testimony that may be given by the substitute expert’”) (collecting
cases); see also Medpace, Inc. v. Biothera, Inc., No. 1:12-cv-179, 2014 WL 1045960, at
*4 (S.D. Ohio Mar. 17, 2014) (“Courts granting motions to substitute experts after the
close of discovery have routinely required the new expert's testimony to be limited to
the subject matter opinions espoused in the first expert's report.”). This is the same
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approach the Court took with Plaintiffs’ motion to substitute Dr. Braveman for Dr.
Nagel. See Kaepplinger, 2021 WL 2633312, at *6-7 (“Dr. Braveman's testimony
should be limited to the same subject matter as Dr. Nagle without any meaningful
changes). As the Court noted in its prior order, this is not to say the substituted expert
must simply “adopt the prior experts conclusions verbatim,” but simply that the
testimony must be restricted to the same subject matter. Id. Defendants are asking
to call Dr. Bilimoria in lieu of Dr. Kokoszka, so the former’s testimony must be limited
to the same subject matter as the latter. That subject matter is Dr. Zarnke.
As to Dr. Zarnke and SANI’s cursory proposal that Dr. Bilimoria could also
replace Dr. Michelotti’s expert witness Dr. Altimari, whose subject matter is Dr.
Michelotti, the Court finds this request wholly improper. As Dr. Zarnke and SANI
have repeatedly reminded the Court, Dr. Michelotti is a separate party with his own
counsel. Yet Dr. Michelotti has filed nothing indicating his position, and in fact as
recently as the final pre-trial conference in December 2021 counsel for Dr. Michelotti
expressly stated that he still intended to call Dr. Altimari at trial. While the Court
does not doubt Dr. Zarnke and SANI’s representation on Dr. Michelotti’s behalf, what
their proposal amounts to is essentially an additional motion to substitute Dr.
Bilimoria for Dr. Altimari. It is not proper for Dr. Zarnke and SANI to shoehorn in
this request to substitute a separate party’s expert into their own motion to substitute
Dr. Kokoszka. Dr. Michelotti never disclosed Dr. Bilimoria as an expert witness on
his behalf, and has never indicated any intent to call Dr. Bilimoria as part of his case
until now. If Dr. Michelotti wished to withdraw his expert, Dr. Altimari, and instead
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rely on Dr. Bilimoria, Dr. Michelotti would have needed to affirmatively move to
substitute Dr. Bilimoria as his expert witness just as Dr. Zarnke and SANI did with
respect to Dr. Kokoszka, which would have required a showing that the substitution
is harmless or substantially justified under the same factors the Court has reviewed
above. But he has not done so, and Dr. Zarnke and SANI do not make any arguments
as to why substituting Dr. Bilimoria for Dr. Altimari is appropriate under the Federal
Rules. The Court will thus not entertain Dr. Zarnke and SANI’s last minute attempt
to broaden the scope of their request to include a substitution for another parties’
expert, particularly when that party has never indicated anything other than his
intent to call his own expert.
In sum, while Dr. Zarnke and SANI will be permitted to call Dr. Bilimoria, his
testimony will be limited to the aspects of his report that deal with the same subject
matter as Dr. Kokoszka’s report, that being Dr. Zarnke’s conduct and whether he met
the appropriate standard of care.
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Conclusion
For all the foregoing reasons, Defendants’ Dr. Zarnke and SANI’s motion for
leave to call Dr. Bilimoria in lieu of Dr. Kokoszka is granted. Dr. Bilimoria’s testimony
will be limited to Dr. Zarnke’s conduct and whether he met the appropriate standard
of care.
_____________________________________
HEATHER K. McSHAIN
United States Magistrate Judge
DATE: May 4, 2022
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