Scott v. USA

Filing 229

ORDER DENYING 185 Motion for Summary Judgment by USA, 186 Motion for Summary Judgment by USA, 188 Motion for Summary Judgment by Scott, 166 Motion to Strike by USA, 190 Motion to Bar Opinions by Scott, GRANTING in part 187 Motion to Exclude by USA, and DENYING as moot 207 Motion for Oral Argument. Signed by Chief Judge Nancy J. Rosenstengel on 4/12/2023. (kss)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CRAIG SCOTT,
Plaintiff,
v.

Case No. 3:18-CV-00629-NJR

UNITED STATES OF AMERICA,
on behalf of the U.S. Air Force and
U.S. Department of Health and
Human Services,
Defendant.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court are several motions between the two remaining parties in
this action, Plaintiff Craig Scott and Defendant United States of America (“United States”).
The United States represents both the United States Air Force (“Air Force”) and the United
States Department of Health and Human Services (“HHS”) in this action. Currently pending
are three motions for summary judgment—one filed by the United States for the Air Force,
one by the United States for the Air Force and HHS, and one by Scott. (Docs. 185; 186; 188).
Moreover, there are three pending motions attacking expert opinions and testimony—two
by the United States, and one by Scott. (Docs. 166; 187; 190).

FACTUAL BACKGROUND
In April 2006, Scott underwent surgery on his lower left leg which addressed
occlusion (blockage) in several arteries. (Doc. 188-1). Shortly thereafter in a follow-up
appointment, a non-party physician prescribed Coumadin (the brand name for an

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anticoagulant called Warfarin) to treat Scott’s newly diagnosed peripheral vascular disease.
(Doc. 188-4). This appointment occurred at a Federally Qualified Health Center operated by
Southern Illinois Health Care Foundation, Inc., referred to as the Belleville Family Health
Center, in Belleville, Illinois (a civilian clinic operated by HHS, next to a military clinic
operated by the Air Force). (Id.). Scott also received primary care at the civilian clinic from
2011 to 2015, and in 2013, he was assigned to a resident, Dr. Erynn Elleby. (Doc. 188-5). In
November 2014, Elleby discontinued his Coumadin prescription pending Scott’s presentation
for lab work. (Doc. 188-7). Then, Scott sought to switch primary care services to the VA.
(Doc. 188-9).
In February 2015, Scott developed issues with his lower right leg and foot. (Id.). After
seeking care at the VA earlier in the month, Scott presented to the Protestant Memorial
Medical Center (“Memorial Hospital” or “Memorial”) Emergency Room on March 31, 2015,
with complaints regarding his afflicted lower right leg and foot. (Id.; Doc. 188-11). Days later,
Scott returned to Memorial Hospital for vascular testing. (Doc. 188-12). Using its automated
fax system (“Forward Advantage”), Memorial intended to send copies of the medical notes
from Scott’s visits to Dr. Elleby, including the vascular study and abnormal arterial study.
(Docs. 188-11; 188-12; 188-20, p. 2). In May 2015, Scott returned to the VA and visited another
hospital, Christian Hospital, multiple times for heart palpitations and lower extremity pain.
(Docs. 188-13; 188-14; 188-15). From there, Scott was referred to an orthopedic specialist and
was eventually transferred to Barnes-Jewish Hospital where he underwent a below-knee
amputation of his right leg in July 2015. (Docs. 188-18; 188-19).
To maintain the Forward Advantage automated fax system, analysts at Memorial
would add and update a provider dictionary. (Doc. 188-20, pp. 5-7). In attempting to send

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Scott’s medical records to Dr. Elleby, the Forward Advantage system utilized a fax number
associated with the adjacent military clinic operated by the Air Force instead. (Doc. 183, ¶ 16).
The military and civilian clinics participated in a residency program and operated on the
same floor but in separate spaces. (Doc. 188-23). According to Scott, Memorial and the
military and civilian clinics were all aware of ongoing fax delivery issues. (Docs. 188-24; 18825). As common practice, the two clinics would set aside misdirected faxes for the other clinic
to retrieve. (Docs. 188-22; 188-24; 188-26). The United States disputes that the military clinic
ever received the faxes from Memorial pertaining to Scott.
In his Second Amended Complaint, Scott claimed that Memorial failed to properly
handle his medical records or communicate with his medical providers. (Doc. 179, pp. 9-11).
But Scott’s claims against Memorial Hospital have since been settled. (Docs. 216; 218). As
to the United States, Scott contends that the military and civilian clinics1 negligently
handled the faxed medical records and failed to properly communicate with his medical
providers which prolonged and exacerbated his condition leading to his ultimate
amputation. (Doc. 179, pp. 6-9; See member case, Scott v. USA, No. 19-cv-1029-NJR, at Doc.
37). Both Scott and the United States move for summary judgment on various issues and
attack proposed expert testimony before trial.

MOTIONS FOR SUMMARY JUDGMENT
I.

Legal Standard
A court should grant summary judgment “if the movant shows that there is no

Scott initially filed this action only against the civilian clinic operated by HHS, and through discovery,
found potential liability on behalf of the Air Force at the military clinic. This prompted Scott to file a
separate action in 2019. The cases were consolidated for discovery purposes. (Doc. 68). The member case,
against the Air Force, associated with this action is Scott v. USA, No. 19-cv-1029-NJR.
1

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). Assertions that a fact cannot be or is genuinely disputed must be
supported by materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations, admissions, interrogatory answers, or
other materials. FED. R. CIV. P. 56(c)(1). Once the moving party sets forth the basis for
summary judgment, the burden then shifts to the nonmoving party who must go beyond
mere allegations and offer specific facts showing that there is a genuine issue of fact for trial.
FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In determining
whether a genuine issue of fact exists, the Court must view the evidence and draw all
reasonable inferences in favor of the non-movant. Bennington v. Caterpillar Inc., 275 F.3d 654,
658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
II.

United States’ Motion on behalf of the Air Force (Doc. 185)
The United States argues that Scott’s claim against the Air Force accrued shortly after

July 2015 when his medical records were sent to his prior counsel, and therefore he submitted
an administrative claim to the Air Force over a year late under the Federal Tort Claims Act
(“FTCA”). Scott received records from Memorial on August 27, 2015, which according to the
United States, contained the necessary information for Scott to pursue and discover any
potential Air Force involvement in this case. As such, the United States contends that Scott’s
claim involving the Air Force accrued on that date rendering his administrative tort claim
due to the Air Force by August 27, 2017. Because Scott submitted his administrative claim in
March 2019, the United States urges that Scott submitted his administrative tort claim in an
untimely fashion entitling the United States to summary judgment. Moreover, the United
States claims that the untimeliness resulted in prejudice as the relevant fax equipment was

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likely moved from Scott Air Force base in October 2017, and its whereabouts are unknown.
The United States avers that if Scott’s claim was filed in the appropriate timeframe, such
equipment may have been readily available for examination and use in defending this case.
On the other hand, Scott contends that he did not know or have reason to know of
potential negligence by the Air Force until September 2018 when, through discovery related
to the claims against the civilian clinic, he realized that Memorial possibly faxed his medical
records to a number associated with the military clinic. This realization came about following
the deposition of Cindy Jorns, an employee at Memorial, who alerted Scott that the fax
number used to transmit his medical records to the civilian clinic was actually a number listed
for a military nurse station. About six months later, in March 2019, Scott submitted an
administrative tort claim for personal injury to the Air Force. Then, in September 2019, Scott
filed a complaint against the United States regarding the military clinic in this case’s member
case. As such, Scott argues his administrative claim and subsequent complaint were timely.
The FTCA provides that “[a] tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate Federal agency within two years
after such claim accrues.” 28 U.S.C. § 2401(b). The Seventh Circuit instructs that an FTCA
claim accrues in two ways: when (1) an individual actually knows enough to tip him off that
a government act (or omission) may have caused his injury; or (2) a reasonable person in the
individual’s position would have known enough to prompt a deeper inquiry. Blanche v.
United States, 811 F.3d 953, 958 (7th Cir. 2016). The former presents a subjective analysis; the
latter presents an objective analysis. Id.
Under the subjective analysis, the parties do not dispute the timeliness of Scott’s FTCA
claim against the Air Force. Clearly, Scott actually knew enough to tip him off that the Air

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Force may have negligently caused his injury in September 2018 when he realized for the first
time that Memorial possibly faxed his medical records to a number associated with the
military clinic following the deposition of Cindy Jorns.
Instead, the parties disagree over the result of the objective analysis. The United States
argues that a reasonable person in Scott’s position would have known enough to prompt a
deeper inquiry into potential involvement of the military clinic when his original attorney
received his medical records from Memorial and the civilian clinic in August 2015. At that
point, the United States contends that Scott’s attorney should have inquired further into how
and when Memorial attempted to send the information to Dr. Elleby at the civilian clinic.
Given the abnormal finding in his arterial doppler test result, Scott suspected someone
should have done more and acted earlier to prevent his amputation. The United States asserts
that a reasonable person should have realized that the civilian clinic records omitted records
from Memorial for Scott’s March 31, 2015, and April 4, 2015, visits, which should have
prompted further inquiry as something was clearly amiss. As such, according to the United
States, the delivery of these records triggered the accrual clock for Scott’s claims against the
Air Force.
Obviously, Scott disagrees. He contends that the Memorial production informed Scott
that his emergency room visit records were “copied to” his listed primary care provider, Dr.
Elleby, and that these records were absent from the civilian clinic production. Scott urges that
this potential discrepancy between the Memorial records and the civilian clinic records
would not lead a reasonable person to jump to the conclusion that the records fell into the
hands of a separate party. Rather, a reasonable person may suspect that either Memorial did
not actually send the records, or the civilian clinic lost or mishandled the records—both

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theories he pursued in this action. Additionally, Scott points to the testimony of Sheena
Grover, the civilian clinic medical records clerk, that by clinic policy outside emergency
department records cannot be produced by the civilian clinic pursuant to a records request.
(Doc. 201-2). Grover stated that only records generated at the clinic or outside records ordered
by the clinic physicians could be produced in a records request, not third-party records or
secondary records of visits to other hospitals sent to the civilian clinic. (Id.). Thus, an omission
of these records in the civilian clinic production may have been insignificant in context, not
alerting Scott to any potentially lost or mishandled records.
The crux of the United States’ argument is that the absence of the Memorial records
in the civilian clinic production should have provided further reason to think something may
have been amiss, which should have prompted Scott to investigate how and when Memorial
sent the records to Dr. Elleby. But an omission of this type of secondary records, according to
the civilian clinic’s medical records clerk, was common practice and might indicate that
nothing was amiss. The Court is not convinced that the absence of the Memorial emergency
room visit records in the civilian clinic production provided to Scott’s original attorney were
enough to prompt Scott to further investigate, let alone direct his investigation towards
outside clinics or agencies.
The United States cites to E.Y. ex rel. Wallace v. United States, 758 F.3d 861 (7th Cir.
2014), to support its position. In Wallace, a mother received prenatal care at a federally
qualified health clinic and subsequently delivered her baby at a private hospital. Id. at 86364. A year later, the child was diagnosed with cerebral palsy. Id. Once the mother retained
counsel several months after receiving the diagnosis, her attorneys requested records from
the hospital and her prenatal care facility, the federally qualified clinic. Id. The clinic provided

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a partial set of records. Id. The Seventh Circuit determined that the receipt of these partial
records triggered the accrual clock, because the records solidly indicated that something
might have been amiss with her prenatal care, and, as such, a reasonable person would have
inquired further. Id. at 868. The United States argues that the delivery of Scott’s Memorial
and civilian clinic records triggered the accrual clock here, like in Wallace, regarding the
involvement of the Air Force military clinic.
The Seventh Circuit has declined to announce a rigid rule setting the date of accrual
to coincide with the retention of counsel, receipt of medical records, or any other specific
event. See Blanche, 811 F.3d at 960-61 (citing A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135,
142 (2d Cir. 2011)). Instead, the Court of Appeals instructs that the accrual date should align
with the time when a plaintiff had reason to suspect that the injury suffered related in some
way to the medical treatment received. The United States overlooks a key difference in its
explanation of Wallace. In Wallace, the plaintiff actually received prenatal medical care at the
federally qualified clinic, and the pertinent medical records solidly indicated an issue with
that clinic’s treatment. Here, Scott received no medical care or treatment from the military
clinic, had no relationship to that clinic, and had no reason to suspect a wholly unrelated
clinic as the cause for his inadequate medical treatment or injuries. This is also the glaring
difference between the present case and the circumstances reviewed by the Seventh Circuit
in other cases. See also P.W. by Woodson v. United States, 990 F.3d 515, 519-22 (7th Cir. 2021)
(accrual clock began shortly after birth where treating physician explained risks of
attempting natural delivery of an unusually large child during prenatal care, yet opted for
natural delivery anyway causing traumatic birth and injury to the child); Blanche, 811 F.3d at
960-61 (accrual clock triggered shortly after birth against prenatal care providers where baby

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was diagnosed with Erb’s Palsy before leaving the hospital due to attempted vaginal delivery
instead of a C-section); Arteaga v. United States, 711 F.3d 828, 831 (7th Cir. 2013) (for mother
who had birth complications after vaginal delivery of an 11-pound child the accrual clock
began against prenatal care providers after she met with an attorney and obtained her
medical records). In all of these cases, the government-affiliated medical providers actually
provided treatment and interacted with each respective plaintiff at some point leading to the
ultimate injury. Here, Scott had no interaction with the military clinic, and even as he
suspected something had gone awry in his medical treatment or upon receiving his medical
records, he had no reason to suspect the military clinic as a potential cause of his injury.
There is no dispute that Scott timely pursued his claims against both entities known
to be involved in his medical treatment or the transmittal of his medical records, Memorial
and the civilian clinic. After he received information pointing to involvement on behalf of the
military clinic, he acted to initiate a claim against the Air Force, through an administrative
claim and then through a lawsuit. The Court finds that Scott’s claims are timely as the FTCA
accrual clock was triggered in September 2018 when, through discovery, Scott finally had
reason to connect the military clinic to his injuries. As such, the United States’ motion for
summary judgment (Doc. 185) is denied.
III.

United States’ Motion on behalf of the Air Force and HHS (Doc. 186)
In its other motion for summary judgment, the United States argues that Scott fails to

establish the actions (or alleged omissions) by either the civilian or military clinics were the
proximate cause of his injuries. Essentially, the United States asserts that any alleged
negligence by either clinic was not a material and substantial element in provoking Scott’s
injury where Scott failed to update his contact information and to follow instructions to visit

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his primary care provider. Even if the civilian clinic received the records from Memorial and
attempted to contact Scott, according to the United States, this attempt would have been futile
as Scott changed addresses without informing the clinic. Moreover, Scott received
instructions to follow up with his primary care provider, but he failed to heed this directive.
As such, the United States contends that receipt of the medical records faxed by Memorial
would not have impacted Scott’s treatment at the civilian clinic. Additionally, the United
States contends that deficient medical treatment by other providers was not a foreseeable
consequence of non-receipt of faxed medical records.
Scott maintains that the civilian clinic possessed valid contact information during the
relevant time period underlying this action. He used his aunt’s address, and even after he
personally moved, he continued to use his aunt’s phone and address as a valid contact
method. There is also no definitive evidence, according to Scott, that he received a discharge
instruction from Memorial to contact and visit Dr. Elleby. And because all facts and
inferences are construed in the nonmovant’s favor on summary judgment, Scott argues that
he is entitled to a favorable inference that he did not receive such an instruction. Scott also
argues that negligence by the military and civilian clinics was a material and substantial
factor in the development of his injury because Dr. Elleby was unable to perform the
indicated follow-up causing a lapse in his care. Combating the United States’ foreseeability
argument, Scott avers that the lapse in continuity of his care was an entirely foreseeable
consequence of perpetual use of an unreliable communication system regarding patient
records. Scott claims he would have avoided the ultimate amputation if Dr. Elleby
affirmatively followed up with him, but instead he was subjected to a carousel of other
doctors whose care led to amputation. Under Illinois law, according to Scott, negligence on

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behalf of subsequent treatment providers does not necessarily absolve another defendant of
liability.
As an initial matter, both parties accept Illinois substantive law as controlling
regarding negligence in this diversity case. To recover damages for negligence in Illinois, a
plaintiff must prove the existence of a duty, a breach of that duty, and that the negligent
conduct proximately caused the alleged injury. Avalos v. Pulte Home Corp., 474 F. Supp. 2d
961, 968 (N.D. Ill. 2007). Under Illinois law, proximate cause encompasses both cause-in-fact
and legal cause. Blood v. VH-1 Music First, 668 F.3d 543, 546 (7th Cir. 2012). For cause-in-fact,
a plaintiff must demonstrate that the defendant’s conduct was a material element and a
substantial factor in bringing about the injury. Id. (citing Lee v. Chicago Transit Authority, 605
N.E.2d 493, 502 (Ill. 1992)). Legal cause is essentially a foreseeability inquiry that requires a
court to determine whether the injury is of a type that a reasonable person would anticipate
as a likely result of his or her conduct. Id. Proximate cause cannot be established where the
causal connection is contingent, speculative, or merely possible. Walker v. Macy’s
Merchandising Group, Inc., 288 F. Supp 3d 840, 856 (N.D. Ill. 2017). Typically, proximate cause
issues are fact-intensive and specific, and, thus, uniquely for the fact finder’s determination.
Hemminger v. LeMay, 11 N.E.3d 825, 830 (Ill. App. Ct. 2014). Summary judgment may be
appropriate on the issue of proximate cause, however, when the facts fail to demonstrate both
cause-in-fact and legal cause, are undisputed, and are such that there can be no difference in
the judgment of reasonable men as to the inferences to be drawn from them. Blood, 668 F.3d
at 546; Avalos, 474 F. Supp. 2d at 968.
If an intervening act by a third party enters the causal chain, Illinois courts apply a
test to determine whether the first negligent party could have reasonably anticipated that

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intervening cause as a natural and probable result of the first party’s own negligence. Avalos,
474 F. Supp. 2d at 968-69. Essentially, the issue is framed as whether the acts of the defendant
are a cause of the plaintiff’s injury, or whether the defendant’s acts create a condition by
which the injury is made possible by the independent actions of another party. Id. Such a
furnished condition does not constitute legal cause. Id.
The Court finds that a factual question exists as to whether Scott was reachable from
his listed contact information with the civilian clinic, namely his aunt’s address and phone
number. The United States argues that Scott was unreachable, and so, receipt of the records
from Memorial would have resulted in no difference in outcome. Scott claims that he used
his aunt’s contact information even after he moved to his own apartment. Based on this issue
of fact, the Court cannot conclude as a matter of law that the civilian clinic’s receipt of Scott’s
records would be inconsequential because he was unreachable.
Moreover, a genuine issue of fact exists as to whether Scott would have presented to
the clinic had Dr. Elleby affirmatively reached out or whether he ignored a directive to follow
up with the clinic himself. The record indicates that Scott sought medical help at other
institutions due to the severity of his symptoms, and drawing a reasonable inference in his
favor as the Court must at this time, it is reasonable to infer that he would have presented to
receive treatment or evaluation from his primary care physician if the clinic affirmatively
reached out to him. And, according to Scott’s discharge documents from Memorial Hospital
in March 2015, the “Activity Restrictions or Additional Instructions” section contained an
instruction to “[r]eturn to Memorial tomorrow for a venous Doppler of the right lower leg
and ankle brachial index.” (Doc. 166-1, p. 217). It appears that Scott returned for that Doppler
study. (Id. at p. 135). The discharge notes also stated, “Follow-up with primary care physician

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within 2-3 days.” (Id. at p. 217). The subsequent section was titled “Follow-up” and explained
that “SCOTT, CRAIG D has been referred to the following clinics/specialists for follow-up
care: Elleby, Erynn Elizabeth, MD,” detailing the “Follow-Up Plan” as “See in 3 days – make
appt.” (Id.). Later in the discharge notes, generic, boilerplate language appears urging the
reader to “[f]ollow up with [their] healthcare provider as directed.” (Id. at p. 219). These
discharge notes are not clear as to whether Scott held the responsibility to reach out to Dr.
Elleby. The term “follow-up” appears outside of the “additional instructions” section three
times: as the title of a section, to identify the referred follow-up care provider, and to identify
the follow-up plan. (Id. at p. 217). As semantically fastidious as it may seem, in each of these
instances “follow-up” appears as a noun or adjective, not in the phrasal verb form (i.e., follow
up). The “additional instructions” section also contains the phrase with the hyphen, in its
adjective or noun form: Follow-up with primary care physician within 2-3 days. It is a
reasonable inference at this stage that the discharge paperwork noted that a follow-up
appointment would occur in 2-3 days, not that Scott personally needed to follow up with his
primary care physician in that time and then proceeded to ignore that instruction. This
inference is supported by subsequent language in the discharge documents with the
boilerplate instruction stating, “Follow up with your healthcare provider as directed: You
may need more tests to find the cause of your leg pain.” (Id. at p. 219). Overall, as to the causein-fact needed to establish proximate cause, the Court finds a genuine issue of material fact
when viewing the evidence in a light most favorable to Scott.
Turning to legal cause (foreseeability), the United States asserts that Scott accessed
care despite the purported mishandling of records by the civilian and military clinics, and he
received treatment from other providers during the time Scott’s retained expert believes his

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leg was salvageable. (Doc. 166-4, p. 82). Because those providers failed to order vascular
testing or involve a vascular specialist, their medical services constituted unforeseeable,
intervening causes of Scott’s ultimate amputation. Alternatively, Scott argues that patient
injury is certainly a natural and probable result of a communication breakdown between
medical providers. The Court finds that failure to properly handle Scott’s records and
appropriately follow up with Scott given his emergency department visits at Memorial could
foreseeably force a patient to seek other treatment, possibly less informed treatment than
would occur with a primary care physician who has a history with a patient. Furthermore, a
factual question exists as to whether Scott would have received different and effective
treatment had the civilian clinic and Dr. Elleby obtained and properly handled the relevant
medical records from Memorial avoiding the result of amputation. There is competent
evidence (including Dr. Elleby’s testimony regarding the course of treatment had she
received the records) that, absent the purported mishandling of the records by the military
and civilian clinics causing a disruption to the continuity of his care, Scott would not have
been forced to independently seek treatment from a variety of other providers over the
following weeks and could have been spared from undergoing amputation. Moreover, Scott
has retained an expert who opines his leg was salvageable into June 2015, whereas the United
States’ expert estimates that this was not the case as Scott’s leg could not have been salvaged
even by early April 2015. This creates a genuine issue of material fact as to whether the fax
system failure delayed Scott’s treatment and impacted the ultimate salvageability of his leg.
Notably, the causal chain here may very well be tenuous and remote rather that proximate,
but at this stage the Court must not engage in weighing the credibility of the parties’ expert
testimony and other evidence.

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The United States is not entitled to summary judgment on the issue of causation
because there are genuine issues of material fact that preclude judgment as a matter of law.
The second motion for summary judgment filed by the United States (Doc. 186) is denied.
IV.

Scott’s Motion (Doc. 188)
Scott moves for summary judgment only as to the United States’ affirmative defenses

of comparative fault and failure to mitigate damages. Scott primarily argues that the United
States’ negligence, along with the treatment from other doctors, constitutes an intervening
cause that breaks the chain of causation between Scott’s actions and his injury. He also asserts
that his conduct in habitually smoking and discontinuing use of his anticoagulant prior to
seeking treatment merely created a condition necessitating treatment. The relevant inquiry,
according to Scott, is whether he should have anticipated Defendants’ conduct as a natural
and probable result of his own conduct. On the contrary, the United States contends that Scott
contributed to his injury, as well as its rapid progression, by continually smoking against his
doctors’ recommendations and failing to get necessary lab work done to remain on his
anticoagulant.
In assessing comparative negligence under Illinois law, an objective test employing a
reasonable-person standard is applied that asks whether a plaintiff used the degree of care
which an ordinarily careful person would have used under similar circumstances. Clanton v.
United States, 943 F.3d 319, 323 (7th Cir. 2019). In Illinois, comparative negligence applies
when a plaintiff’s negligence is a legally contributing cause of his injury only if such
negligence is a substantial factor in bringing about his injury, and there is no rule restricting
his respective responsibility. Ford-Sholebo v. United States, 980 F. Supp. 2d 917, 997 (N.D. Ill.
2013). Usually, comparative negligence is a question of fact for the fact finder, but it can be

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resolved as a matter of law when “all reasonable minds would agree that the evidence and
reasonable inferences therefrom, viewed in light most favorable to the nonmoving party, so
overwhelmingly favors the movant that no contrary verdict based on that evidence could
ever stand.” West v. Kirkham, 566 N.E.2d 523, 525 (Ill. App. Ct. 1991).
In his motion for summary judgment as to the comparative negligence affirmative
defense, Scott’s argument largely collapses into factual disputes. He argues that his habitual
smoking and discontinued use of his anticoagulant merely created the condition requiring
treatment, not the cause of his injury. Scott also attempts to separate his case from Krklus v.
Stanley, 833 N.E. 2d 952 (Ill. App. Ct. 2005). In Krklus, the defendants introduced evidence
that the decedent was negligent in failing to follow his medical provider’s advice to regularly
take blood pressure medication, and the decedent misinformed his provider about his
compliance with taking such medication. Id. at 961-62. Scott distinguishes the present facts
because he informed medical providers on three occasions that he no longer took
anticoagulants, and he diligently sought treatment with an honest disposition regarding his
health.
Here, like Krklus, Scott’s underlying condition of a peripheral vascular disease and
hypercoagulation disorder brought about a need for treatment. (Doc. 166-7, pp. 75-76). His
failure to continue taking an anticoagulant or report to the civilian clinic to get lab work done
and resume taking the medication could have exacerbated his condition and led to his
ultimate amputation. The record indicates that Dr. Paul Collier, Scott’s retained vascular
specialist, testified that Scott’s condition required intervention by a vascular specialist and
that thrombolytic (or lytic) therapy could have salvaged Scott’s leg through approximately
the first week of June 2015. (Doc. 166-4, pp. 50, 105-106). Collier stated that if Scott stayed on

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his anticoagulant medication (Coumadin), he would not have required an amputation. (Id. at
pp. 71-72). A vascular surgeon expert submitted by the United States, Dr. James Black, opined
that lytic therapy is most effective for clots present for less than two weeks, so such therapy
would not likely have been effective through early June 2015 as suggested by Collier.
(Doc. 190-3, p. 3). Instead, Black suggests that since Scott arrived at the VA on March 2, 2015,
complaining of calf, ankle, and toe pain for weeks, lytic therapy would not likely achieve
limb salvage even at the time Scott presented for a Doppler study at Memorial on April 4,
2015. (Id.). While Scott underwent treatment at Barnes Hospital in June 2015, one test showed
normal circulation to his ankle but not toward his foot and toes. (Id.). Dr. Black assessed
this result as consistent with a distal clot indicative of a rapidly progressive loss of vessels,
which could be contributed to by Buerger’s disease or an underlying hypercoagulation
disorder that caused thrombosis of the small vessels of the foot. (Id. at pp. 3-4). For either of
these conditions, smoking cessation would be the primary solution to avoid disease
progression, and for the latter, compliance with a Warfarin regimen (an anticoagulant) would
also help. (Id. at p. 4). Especially considering the expert testimony, that Scott’s leg was not
likely salvageable even in early April 2015, there is a strong connection between Scott’s
purportedly negligent conduct and his resulting injury, and as such, comparative
negligence is an appropriate affirmative defense. Moreover, these factual disputes cannot
be resolved on summary judgment.
In light of the United States’ assertion that Scott also disregarded instructions to
contact his primary care provider after his March 31 appointment, Scott argues that the
United States’ retained experts confirm nothing could have changed or prevented his injuries
even if he had followed up. In making this argument, Scott ignores the expert testimony he

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advances himself. His experts claim his leg was salvageable for much longer, and perhaps,
based on that assessment, follow-up may have made a difference. There is also a dispute, as
described above, as to whether Scott actually received an instruction to follow up and
whether he disregarded that instruction. All of these issues preclude summary judgment.
Scott may be responsible to some extent for his injuries, and in assessing damages, this may
also come into play.
As a note, general health advice, such as generic directives to lose weight, stop
smoking, or to exercise, are typically not appropriate considerations in assessing comparative
fault. See Krklus, 833 N.E.2d at 964. But a factual issue exists as to whether Scott received
general advice to quit smoking, as he testified, or if the repeated directives of his medical
providers to quit smoking specifically related to his underlying conditions and exceeded the
typically generic nature of such advice. (Docs. 166-1, pp. 28-29; 166-4, pp. 57-58; 166-7, pp. 7476).
Additionally, Scott argues that the United States has failed to produce any evidence
whatsoever as to the specific conduct Scott committed to cause an aggravation to his injuries
or damages, therefore an affirmative defense for failure to mitigate damages is inappropriate.
In opposition, the United States contends that, based on his medical records, Scott missed
physical therapy appointments, failed to comply with direction by his prosthetist including
missing appointments, and failed to meaningfully participate in his exercise plan. (Docs. 2001; 200-2; 200-3; 200-4; 200-5).
“Mitigation of damages imposes a duty on an injured party to exercise reasonable
diligence and ordinary care in attempting to minimize his damages after injury has been
inflicted.” See Malanowski v. Jabamoni, 772 N.E.2d 967, 973 (Ill. App. Ct. 2002) (internal

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quotations omitted). Failure to mitigate is not a defense to liability, but rather concerns the
amount of recoverable damages. Ner Tamid Congregation of North Town v. Krivoruchko, 638 F.
Supp. 2d 913, 920 (N.D. Ill. 2009). For example, when a patient fails to participate in
prescribed physical therapy post injury, a mitigation of damages defense may be appropriate.
Malanowski, 772 N.E.2d at 973.
In this action, Scott alleges damages for past and future physical pain and suffering,
mental anguish, emotional distress, and disability and/or loss of normal life. (Doc. 179, ¶ 43;
see also member case, Scott v. USA, No. 19-cv-1029-NJR, at Doc. 37, ¶ 34). To the extent that
Scott argues liability on behalf of the United States for the length or inadequacy of his
recovery, his continued mental or emotional distress given the outcome of his recovery, or
any other damage related to the recovery process, this is an appropriate affirmative defense.
Accordingly, the Court finds that Scott is not entitled to summary judgment regarding
the affirmative defenses of comparative negligence and mitigation of damages raised by the
United States. Scott’s motion for summary judgment (Doc. 188) is denied.

MOTIONS REGARDING EXPERT TESTIMONY AND OPINIONS
I.

Legal Standard
“A district court’s decision to exclude expert testimony is governed by Federal Rules

of Evidence 702 and 703, as construed by the Supreme Court in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).” Brown v. Burlington Northern
Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014); see also Lewis v. CITGO Petroleum Corp., 561
F.3d 698, 705 (7th Cir. 2009). The Daubert standard applies to all expert testimony, whether
based on scientific competence or other specialized or technical expertise. Smith v. Ford Motor

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Co., 215 F.3d 713, 719 (7th Cir. 2000) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
141 (1999)).
Federal Rule of Evidence 702 provides that expert testimony is admissible if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.
FED. R. EVID. 702. Under this rule, an expert witness may testify about a scientific issue in
contention if the testimony is based on sufficient data and is the product of a reliable
methodology correctly applied to the facts of the case. Lyons v. United States, 550 F. Supp.
3d. 588, 591 (S.D. Ind. 2021) (citing Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010)). As
such, a three-step analysis emerges as to admitting expert testimony. Gopalratnam v.
Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017). The Court must determine whether:
(1) the witness is qualified; (2) the expert’s methodology is scientifically reliable; and
(3) the testimony will assist the trier of fact in understanding the evidence or determining a
fact in issue. Id.
The district court is the gatekeeper with respect to the screening of expert testimony
in ensuring it is both relevant and sufficiently reliable. C.W. ex rel. Wood v. Textron, Inc., 807
F.3d 827, 834 (7th Cir. 2015). The “key to the gate is not the ultimate correctness of the expert’s
conclusions. Instead, it is the soundness and care with which the expert arrived at her
opinion: the inquiry must ‘focus . . . solely on principles and methodology, not on the
conclusions they generate.’” Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013)

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(citing Daubert, 509 U.S. at 595). “So long as the principles and methodology reflect reliable
scientific practice, ‘[v]igorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.’” Id. (quoting Daubert, 509 U.S. at 596).
Finally, an expert must explain the methodologies and principles that support his or
her opinion; he or she cannot simply assert a “bottom line” or ipse dixit conclusion. Metavante
Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) (quoting Minix v. Canarecci, 597
F.3d 824, 835 (7th Cir. 2010)). “[W]here such testimony’s factual basis, data, principles,
methods, or their application are called sufficiently into question . . . the trial judge must
determine whether the testimony has ‘a reliable basis in the knowledge and experience of
[the relevant] discipline.’” Kumho, 526 U.S. at 149 (quoting Daubert, 509 U.S. at 592). The
district court possesses “great latitude in determining not only how to measure the reliability
of the proposed expert testimony but also whether the testimony is, in fact, reliable.” United
States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) (citing Jenkins v. Bartlett, 487 F.3d 482, 489
(7th Cir. 2007)). The “critical inquiry is whether there is a connection between the data
employed and the opinion offered.” Gopalratnam, 877 F.3d at 781.
II.

United States’ Motion to Exclude Opinions of Scott’s Expert Dr. Paul Collier and
to Bar Opinions from Scott’s Expert Timothy Hawkins (Doc. 187)
Scott disclosed two experts with which the United States takes issue: Timothy

Hawkins and Paul Collier, M.D. Timothy Hawkins is a healthcare and hospital
administration expert who intends to testify about the conduct of the civilian and military
clinic from an administrative perspective and the standard of care for a reasonable medical
provider in similar circumstances. (Doc. 166-8). Hawkins is board certified in hospital

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administration and as a hospital safety manager. (Id.; Doc. 193-1). He retired from his last
hospital administration position, as chief operating officer of Villages Regional Hospital and
executive vice president and chief operating officer of the Central Florida Health Alliance, in
late 2012. (Docs. 186-1, p. 7; 193-1). Throughout his career, Hawkins worked in a variety of
administrative leadership roles in physician practices, clinics, cancer centers, and hospitals.
(Docs. 186-1, pp. 8-11; 193-1).
The United States moves to exclude the opinions provided by Hawkins, arguing his
opinions fail to meet the standard for admissibility required by Federal Rule of Evidence 702
and Daubert, because they lack reliability, and Hawkins lacks the relevant experience and
qualifications to provide such opinions. Primarily, the United States asserts that Hawkins has
no work experience in a family practice setting, especially one where residents provide
medical care, or in the medical community in the relevant locality of Belleville, Illinois,
therefore he lacks experience to provide opinions about how such a clinic should handle
distribution of contact information for its providers. Moreover, the United States contends
that Hawkins lacks relevant experience to opine about the military clinic’s handling of faxes
and its fax machine usage. Specifically, the United States criticizes an opinion in Hawkins’s
report regarding the military clinic’s duty to notify a sender of mistakenly received medical
records, as he later testified that HIPAA contains no such requirement. Lastly, the United
States avers that Hawkins is not qualified to offer technical opinions regarding the receipt of
faxes at the military clinic and whether the fax software misdialed or failed to connect.
In response, Scott first argues that family practice centers with resident providers do
not possess unique characteristics that would disqualify Hawkins’s opinions in this matter
and that Illinois does not employ a stringent locality standard and accepts certain uniform

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standards applicable regardless of locality. Scott also argues that Hawkins’s opinions align
with other witnesses including the military clinic’s IT contractor, Jamie Cymbola, the Chief
Technology Officer of Forward Advantage, Randy Hunsaker, and other military clinic
employees. Scott concedes that Hawkins’s opinion regarding the likelihood that the military
clinic received the faxes and the likelihood that the automated fax system misdialed a
different fax number do not qualify as expert opinions requiring technical expertise or some
quantifiable value, rather, in reaching these conclusions Hawkins relied on common
knowledge and experience.
Upon reviewing the evidence, the Court disagrees with the United States that
Hawkins is unqualified to testify about the standard of care in this case as his experience is
limited to the hospital setting and falls outside of the Belleville, Illinois locality. The United
States does not offer any practical reasons why the family practice clinical setting with
resident providers operates in a fundamentally different way than a general hospital or
health care setting. Nor does it explain what specific knowledge or experience an expert
would need in order to evaluate such a setting. The United States also fails to offer similar
insights as to the Belleville area. Hawkins has decades of experience in the field of health care
administration in a variety of settings from hospitals to cancer centers. Generally, a person
testifying as an expert must be qualified by knowledge, skill, experience, training, or
education and must testify to something more than what would be obvious to a layperson.
Fed. R. Civ. P. 702; Ancho v. Pentek Corp., 157 F.3d 512, 519 (7th Cir. 1998). “An expert’s
testimony is not unreliable simply because it is founded on his experience rather than on
data; indeed, Rule 702 allows a witness to be ‘qualified as an expert by knowledge, skill,
experience, training, or education.’” Metavante Corp., 619 F.3d at 761. Generally, Hawkins

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opines on the standard of care based on his experience in health care administration, and
these opinions may assist the trier of fact in analyzing the standard of care imposed on health
care administrators in this case. The United States can certainly challenge such opinions on
cross-examination or with its own evidence to the contrary.
The Court finds, however, that Hawkins’s opinions relating to the likelihood of receipt
of faxes or the likelihood of a fax system misdialing a number must be excluded because he
is not qualified as an expert, through experience or training, with such technology to form
these opinions. Moreover, Hawkins simply used common knowledge to reach his conclusion
and offered an educated guess admittedly deferring to technical experts. (See Doc. 186-1,
p. 20). This testimony will not assist the trier of fact in understanding the evidence or
determining a fact in issue as other witnesses will discuss this topic based on personal
experience and technical qualifications. The United States’ motion to exclude (Doc. 187) is
granted in part as to these technical fax receipt and operation opinions offered by Hawkins,
but is otherwise denied as to Hawkins.
Moving to Dr. Paul Collier, the United States seeks to exclude his opinion regarding
alternatives to Coumadin as it was not included in his report but rather arose during re-direct
examination during deposition. Because this opinion surfaced only during his deposition, the
United States argues that Dr. Collier did not evaluate whether these alternatives were safe or
indicated for Scott, who specifically should have considered Coumadin alternatives, or if
those alternatives would be efficacious for someone like Scott with hypercoagulation and
peripheral vascular disease. As such, the United States argues these opinions are of limited
value to the trier of fact and should be excluded.
Alternatively, Scott states that he does not intend to offer any opinions as to whether

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he should have received a prescription for a Coumadin alternative. But he argues that the
challenged testimony is appropriate as an expert witness may include information given
during the expert’s deposition pursuant to Federal Rule of Civil Procedure 26(e)(2).
The Court finds that as a vascular specialist Dr. Collier is qualified to testify that
alternatives to Coumadin exist. But because in reviewing the medical records and
circumstances underlying this case, Dr. Collier did not assess whether Scott was specifically
eligible to receive a Coumadin alternative, he cannot opine on whether these options were
appropriate alternatives available to Scott’s treating physicians at the time. In any event, it
does not appear that Scott plans to make such an argument. The United States’ motion to
exclude the opinions of Dr. Collier relating to Coumadin alternatives (Doc. 187) is granted in
part to the extent that he testifies about Scott’s specific eligibility to receive such alternatives.
III.

Scott’s Motion to Bar Opinions of United States’ Expert Witnesses (Doc. 190)
Scott does not attack the entirety of the opinions offered by the United States’ medical

experts but challenges the methodology and reliability of certain opinions expressed by these
experts. First, Scott challenges causation opinions offered by family practice physician Dr.
Janet Albers and argues that Dr. Albers does not have the relevant experience or expertise to
support opinions regarding vascular or endovascular interventions. In her report, Dr. Albers
opines:
“It is highly unlikely that the 10 weeks between March 31 and June 14, 2015—
including, if referral to a vascular surgeon during that period by Dr. Elleby or
anyone else—would have changed the options for treatment. The pathology
from the amputation revealed chronic thrombosis with mild atherosclerosis.
The options would have been medical management, i.e., Coumadin therapy,
and smoking cessation which the Belleville Family Health Center providers
attempted to provide or counsel on, but Mr. Scott chose not to pursue.
Stopping Coumadin without consulting a medical professional and despite
letters and phone calls attempting to have Mr. Scott present for his bloodwork

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made it more likely that he would thrombose and lose his limb. No vascular
procedure or intervention could have remedied this.”
(Doc. 190-1). The United States asserts that these causation opinions are appropriate and
admissible because she applied her relevant training, education, and experience in reviewing
the medical and discovery materials to form reliable opinions.
Dr. Albers is a board certified family medicine practitioner and a professor and
department chair of Family and Community Medicine at Southern Illinois University School
of Medicine. (Id.). In these roles, she oversees all educational, clinical, and research aspects of
her department and actively participates in daily department activities, including medical
records handling issues, to ensure continuity of care for patients. (Id.). Throughout her 30year career, Dr. Albers has experience treating patients with peripheral vascular disease and
hypercoagulability disorders. (Id.).
While a medical degree does not qualify a doctor to opine on all medical subjects, a
physician does not need to be a specialist in a given field to provide an expert opinion where
she has the knowledge, training, and education to reach her conclusions. Gayton, 593
F.3d at 617 (7th Cir. 2010). Dr. Albers is a board certified family medicine practitioner.
Undoubtedly, she responds to a variety of medical issues outside of vascular specialties.
But her report indicates that she has extensive medical knowledge and training
paired with specific experience treating patients with peripheral vascular disease and
hypercoagulability disorders throughout her career. Dr. Albers reviewed Scott’s medical
records along with other discovery in this case. It appears that she applied her many
years of experience and education in the medical field, as well as her specific
experience treating conditions like Scott’s, to reach her conclusions and assess injury
and its cause. This is widely accepted as a sound and reliable methodology. See Walker v.

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Soo Line R. Co., 208 F.3d 581, 591 (7th Cir. 2000) (finding expert’s testimony admissible when
he applied his experience to the medical records). Scott’s motion to exclude (Doc. 190) is
denied as to the causation opinions of Dr. Albers.
Scott also challenges causation opinions offered by vascular surgeon Dr. James
Black as lacking a reasonable degree of medical certainty. Along with these opinions,
Scott also attacks life expectancy opinions by Dr. Black, arguing that Dr. Black does not
reference his methodology or any research as a basis for his opinion. The United States
argues that Scott misunderstands Dr. Black’s report contending that arterial thrombosis
(distal clot) was the final pathway for Scott’s amputation. Many factors contributed to the
development of this distal clot, including smoking, Buerger’s Disease, and Scott’s decision
to quit his Coumadin regimen, making it more likely for the disorder to develop and
progress, leading to amputation.
As with Dr. Albers, the Court finds Dr. Black’s causation opinions are based on
a sufficiently reliable methodology (namely applying his extensive medical experience
with vascular surgery to the medical records and discovery in this case), and his
opinions will assist the trier of fact in analyzing the relevant issues. Dr. Black formed his
opinions through review
imaging,

and

deposition

of

Scott’s

testimony

relevant
and

medical

applied

his

records,

clinical

records,

medical

knowledge

and

experience to those records. His conclusions are obviously connected to the data
available and his relevant experience. See Hall v. Flannery, 840 F.3d 922, 928 (7th Cir.
2016) (expert’s opinions were based on sufficiently reliable methodology when he based
his conclusions on medical records, CT scans, medical notes, and deposition testimony).

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Moreover, simply because Dr. Black explains many contributing factors to the distal
clot that led to Scott’s amputation, his opinions do not fail for lack of medical certainty.
He used the available medical records and information guided by his experience and
professional knowledge to develop these opinions, and his identification of more than one
contributing factor does not render such an opinion medically uncertain. As to the life
expectancy opinion, the same analysis applies. It is clear that Dr. Black formed an
educated opinion about Scott’s life expectancy based on his experience treating
patients with vascular conditions, Scott’s medical records, and research (Doc. 190-3, pp.
6-68) published in the Journal of Vascular Surgery. This is sound methodology in
determining life expectancy and will likely help the trier of fact in assessing potential
damages.
Accordingly, Scott’s motion to bar expert testimony (Doc. 190) is denied as to Dr. Black
as well.
IV.

United States’ Motion to Strike Report and Testimony of Scott’s Expert, Dr.
Paramjit Chopra (Doc. 166)
The remaining motion regarding expert testimony is concerned both with the content

of the proposed expert’s report and the timing of its disclosure. The United States primarily
argues that Scott’s expert report from Dr. Paramjit Chopra was untimely. In the alternative,
the United States argues that the report is insufficient and confusing.
Pursuant to Rule 26(a)(2), a party must disclose by the court-ordered deadline a
written report of a retained expert that includes “a complete statement of all opinions the
witness will express and the basis and reasons for them.” FED. R. CIV. P. 26(a)(2)(B)(i) & (D).
Rule 26(a)(2) further requires that parties disclose rebuttal reports—that is, “evidence [that]

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is intended solely to contradict or rebut evidence on the same subject matter identified by
another” expert—by the court-ordered deadline or, or if no such time is set, 30 days after the
other expert’s disclosure. FED. R. CIV. P. 26(a)(2)(D)(ii). Rule 26 also permits an expert to
supplement his or her disclosure if the expert “learns that in some material respect the
disclosure . . . is incomplete or incorrect.” FED. R. CIV. P. 26(e)(1)(A), (2); Callpod, Inc. v. GN
Netcom, Inc., 703 F. Supp. 2d 815, 823 (N.D. Ill. 2010) (“Supplemental expert reports are
permitted if they are based upon information discovered after the initial disclosure or upon
the realization that the original disclosure was incorrect or incomplete.”).
If a party files untimely reports, a district court may exclude the party’s expert from
testifying at trial on the matters the party was required to disclose. NutraSweet Co. v. X-L
Eng’g Co., 227 F.3d 776, 785–86 (7th Cir. 2000) (citing FED. R. CIV. P. 37(c)(1)). “The sanction of
exclusion is ‘automatic and mandatory unless the party to be sanctioned can show that its
violation of Rule 26(a) was either justified or harmless.’” Id. (quoting Finley v. Marathon Oil
Co., 75 F.3d 1225, 1230 (7th Cir. 1996)). As to the latter, courts consider: “(1) the prejudice or
surprise to the party against whom the evidence is offered; (2) the ability of that 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.” Karum Holdings LLC v. Lowe’s Cos.,
Inc., No. 15 C 380, 2017 WL 5593318, at *3 (N.D. Ill. Nov. 21, 2017) (citing David v. Caterpillar,
Inc., 324 F.3d 851, 857 (7th Cir. 2003)). “The determination of whether a Rule 26(a) violation
is justified or harmless is entrusted to the broad discretion of the district court.” King v. Ford
Motor Co., 872 F.3d 833, 838 (7th Cir. 2017).
Here, Scott disclosed his experts on August 25, 2021. Pursuant to the operative
scheduling order, the United States’ expert disclosures were due on January 18, 2022, and

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depositions of such experts were due on February 28, 2022. (Docs. 164; 165). Moreover, thirdparty defendant experts were to be disclosed by April 15, 2022, with depositions of those
experts due May 6, 2022. (Id.). On April 15, 2022, Scott produced an expert report from
Paramjit Chopra, M.D. (Doc. 166-12). In this report, Dr. Chopra opines that Scott did not
suffer from Buerger’s Disease. (Id.). As such, the United States characterizes this report as
rebuttal to Dr. Black’s opinions to the contrary. But Scott classifies the disclosure as a
supplemental disclosure naming Dr. Chopra as a rebuttal witness. Scott claims that his
disclosure was timely and justified by his October 2021 communications with opposing
counsel. He references emails exchanged between his counsel and counsel for former
defendant Memorial Hospital that included the United States. (Docs. 170-4; 170-5). In these
emails, Memorial sought to disclose its third-party experts by April 15, 2022, and produce
such experts by May 15, 2022. Counsel for Scott replied stating, “To the extent I need to do
any rebuttal experts or opinions, I could likely operate on that same schedule.” (Doc. 170-4).
Due to this email exchange, which received no pushback from the United States, Scott
operated under the assumption his rebuttal deadline was pushed to April 15 by agreement
of the parties. On the other hand, the United States argues that while it acknowledged the
parties had at least some dates in mind to use as markers, the parties would circle back to
discuss what might need to be filed with the Court to update the schedule. On December 14,
2021, the United States sent a proposed joint amended scheduling order via email to Scott.
(Doc. 171-1). The proposed amended scheduling order remained silent on rebuttal expert
disclosures, and the United States provided no objection. (Id.; Docs. 171-2; 171-3).

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The Court finds that Scott’s disclosure of the rebuttal 2 report by Dr. Chopra was
untimely. Clearly, Scott did not comply with any court-ordered deadline, as there was none,
and did not file his disclosure within 30 days after the other expert’s disclosure, as required
by Rule 26. From the communications between the parties, there is no indication that the
parties agreed upon April 15 for rebuttal disclosures other than Scott’s counsel mentioning
in passing that he could likely operate on the same schedule as that for third-party expert
disclosures. Because the disclosure was untimely, the Court will decide whether Scott’s
untimeliness was justified or harmless.
As an initial matter, there is no indication that the disclosure occurred in bad faith.
Miscommunication along with lack of clarification appear to be central to Scott’s untimely
disclosure, rather than bad faith. Moreover, the United States cannot credibly argue prejudice
or surprise when Scott’s counsel made known the possibility of rebuttal witnesses.
Furthermore, the disclosure was made prior to the close of discovery, and the testimony is
unlikely to disrupt trial. Thus, the Court declines to bar Dr. Chopra’s testimony based on
untimeliness.
As to the content of Dr. Chopra’s report, the United States argues the opinions are not
proper rebuttal opinions as they inject new theories into the case and stretch beyond topics
discussed by defense experts. The United States also asserts the opinions are confusing and
lack specificity. Scott argues that Dr. Chopra’s report appropriately provides rebuttal to the
possibility of the Buerger’s disease diagnosis raised by a defense expert and the comparative
fault defense that the United States also supports through its expert testimony.

The Court recognizes this report as rebuttal, not a supplemental disclosure, as Rule 26 permits
supplement disclosures based on a prior disclosure, and here, Dr. Chopra was not previously disclosed.

2

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The Court agrees with Scott. Dr. Chopra’s report appears to be limited to refuting
topics raised by the defense experts. Moreover, as with the other experts discussed above,
Dr. Chopra is appropriately qualified as a board certified interventional radiologist with an
active practice providing diagnostic and therapeutic management to patients like Scott, and
appears to base his opinions on his experience and knowledge in treating patients with
vascular conditions. The United States can address this testimony through vigorous crossexamination and through contradictory evidence provided by its own previously disclosed
experts. Accordingly, the United States’ motion to strike Dr. Chopra’s report (Doc. 166) is
denied.

CONCLUSION
For these reasons, all three motions for summary judgment (Docs. 185; 186; 188)
are DENIED. The United States’ Motion to Strike the report and testimony of Dr. Chopra
(Doc. 166) is DENIED. The Motion to Exclude certain opinions of Dr. Paul Collier and
Bar Mr. Timothy Hawkins filed by the United States (Doc. 187) is GRANTED in part and
DENIED in part. Dr. Collier is barred from testifying that any Coumadin alternative was
available in treating Scott specifically. Mr. Hawkins is barred from testifying as to the fax
receipt and technical operation (or malfunction) of automatic fax systems. Lastly, Scott’s
Motion to Bar Opinions of the United States’ Expert Witnesses (Doc. 190) is DENIED.

IT IS SO ORDERED.
DATED: April 12, 2023
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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