Walker et al v. Corizon Health, Inc. et al

Filing 252

MEMORANDUM AND ORDER. Defendant Paul Corbier, M.D.'s Motion to Exclude Plaintiffs' Expert Witnesses (Doc. 238 ) which defendant Corizon Health, Inc. (Doc. 243 ) joins is granted. Defendant Paul Corbier, M.D.'s Motion to Exclude Opinions of Plaintiff[s'] Expert Witness Gail Normandin-Carpio, RN on the Standards of Medical Care Pursuant to Fed. R. Evid. 702 (Doc. 241 ) is denied as moot. Signed by District Judge Daniel D. Crabtree on 5/13/2022. (mam)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHERMAINE WALKER, individually
and as administrator of the estate of
Marques Davis, deceased, et al.,
Plaintiffs,
v.
Case No. 17-2601-DDC-KGG
CORIZON HEALTH, INC., formerly
known as Correctional Medical
Services, et al.,
Defendants.
___________________________________
MEMORANDUM AND ORDER
Defendant Paul Corbier, M.D. has filed a Motion to Exclude Plaintiffs’ Expert Witnesses.
Doc. 238. Dr. Corbier asks the court to exclude the opinions of plaintiffs’ three designated
expert witnesses under Fed. R. Civ. P. 37(c)(1), as a sanction for the expert reports’ failing to
disclose required information under Fed. R. Civ. P. 26(a)(2)(B). Defendant Corizon Health, Inc.
has filed a Notice of Joinder in Dr. Corbier’s Motion to Exclude. Doc. 243. For reasons
explained below, the court grants the motion.
I.

Factual and Procedural Background

This lawsuit arises from the death of Marques Davis. At his death, Mr. Davis was an
inmate in the custody of the Kansas Department of Corrections and housed at the Hutchinson
Correctional Facility in Hutchinson, Kansas. Plaintiffs Shermaine Walker (as administrator of
Mr. Davis’s estate) and I.D.F. (as a minor and heir at law of Mr. Davis) bring this lawsuit. They
assert claims under 42 U.S.C. § 1983 and Kansas common law against Corizon and Dr. Paul
Corbier.

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On May 2, 2019, plaintiffs served expert disclosures under Fed. R. Civ. P. 26(a)(2). Doc.
117. Plaintiffs disclosed three retained expert witnesses: (1) Lara Strick, M.D., (2) Richard
Berg, M.D., and (3) Gail Normandin-Carpio, R.N. Doc. 201-9. And, plaintiffs served
defendants with expert reports authored by plaintiffs’ three experts. See id.
On May 16, 2019, defense counsel jointly asserted objections to plaintiffs’ expert
disclosures. Docs. 239-2, 239-3. Defendants objected that the designated expert reports “are
insufficient to provide information required under Rule 26(a)(2)(B) and leave [d]efendants
speculating as to what opinions, basis and reasons each may offer related to each of the
separately named [d]efendants.” Doc. 239-3 at 2 (Objections ¶ 5). Defendants offered to confer
about the asserted insufficiency of the expert designations, as contemplated by D. Kan. Rule
37.2. Doc. 239-2 at 2. Also, defendants asked plaintiffs to “supplement them with specificity as
to the individual defendants in this case” and to “advise” defendants of plaintiffs’ “position on
these [expert] reports no later than May 24th so [defendants could] determine if filing a motion”
with the court was necessary. Id.
Plaintiffs appear to concede that they never responded to defendants’ objections to the
expert disclosures. Doc. 246 at 4 (asserting that the only reasonable effort defendants made to
confer about the expert reports issue was the May 16, 2019 communication and Objections and
never alleging that plaintiffs responded to defendants’ attempt to confer). Defendants now ask
the court to exclude plaintiffs’ expert opinions because their reports failed to comply with the
disclosure requirements of Fed. R. Civ. P. 26(a)(2)(B).

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II.

Governing Legal Standard

Rule 26(a)(2)(B) requires that a party’s expert witness disclosures “must be accompanied
by a written report—prepared and signed by the witness[.]” Fed. R. Civ. P. 26(a)(2)(B). The
Rule requires the expert report to contain:
(i)
(ii)
(iii)
(iv)
(v)
(vi)

a complete statement of all opinions the witness will express and the basis
and reasons for them;
the facts or data considered by the witness in forming them;
any exhibits that will be used to summarize or support them;
the witness’s qualifications, including a list of all publications authored in
the previous 10 years;
a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
a statement of the compensation to be paid for the study and testimony in
the case.

Id.
Under Rule 37(c)(1), “[i]f a party fails to provide information . . . as required by Rule
26(a) . . . , 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); see also Vesom v. Atchison Hosp. Ass’n, 279 F. App’x 624, 631 (10th
Cir. 2008) (“The exclusion of evidence presented out of time is ‘automatic and mandatory’
unless the violation was either justified or harmless.” (quoting Finley v. Marathon Oil Co., 75
F.3d 1225, 1230 (7th Cir. 1996))).
A district court has discretion to decide whether a Rule 26 violation is justified or
harmless and, when doing so, should consider the following factors: “‘(1) the prejudice or
surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the
prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the
moving party’s bad faith or willfulness.’” Jacobsen v. Deseret Book Co., 287 F.3d 936, 953

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(10th Cir. 2002) (quoting Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d
985, 993 (10th Cir. 1999)).
III.

Analysis

Defendants assert that plaintiffs’ expert reports failed to disclose the required Rule
26(a)(2)(B) information because they don’t provide the basis or reasons for their opinions and
facts supporting those opinions. Thus, defendants argue, the court must exclude plaintiffs’
expert opinions under Rule 37(c)(1).
First, Dr. Berg’s expert report opines that Mr. Davis suffered “one continuous illness
since July, 2016[.]” Doc. 201-9 at 24. But, Dr. Berg’s expert report never states any basis or
reason for that opinion. Also, Dr. Berg recites that Mr. Davis “was thought to have died because
of a widely disseminated fungal infection,” id. at 23–24, and he opines that diagnosis of that
condition “likely would have taken no more than two days” and “Mr. Davis likely could have
recovered had he been given proper antimicrobial therapy for 14 days before his cardiac
arrest[,]” id. at 24. But, once again, Dr. Berg’s expert report provides no basis for these
opinions. He never explains what medical staff could have done to diagnose the condition within
two days or why that process would take just two days. Also, the report neither explains what
“proper antimicrobial therapy” is, nor the reason for the expert’s opinion that such therapy would
have allowed Mr. Davis to recover from his condition. Dr. Berg’s report ends with a final
conclusory assertion, asserting that “Mr. Davis died as a result of the failure to receive
appropriate care from Corizon services while incarcerated at Hutchinson Correctional Facility.”
Id. But, the report never identifies what care was appropriate, how any particular Corizon staff
member failed to provide that care, or how that alleged failure caused Mr. Davis’s injury.

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Second, plaintiffs designated Gail Normandin-Carpio, R.N. to opine about nursing
standards. See generally id. at 25–32. Her expert report cites various standards of care. Id. at
25. And, she makes the conclusory assertion that Corizon failed to meet the standard of care. Id.
at 31–32. But, she provides no reasons for her conclusion. She never identifies any particular
Corizon staff member who failed to comply with the standard of care. Nor does she explain how
any such failure caused injury to Mr. Davis. Also, she doesn’t describe any facts that support
such an opinion.
Third, Dr. Lara Strick’s expert report opines, among other things, that “[a]ll the signs
were there that [Mr. Davis] had a serious illness involving his brain, and staff saw them, but they
did not do anything about them in a timeframe that meets the standard of care and thus failed to
provide life saving therapy.” Id. at 5. But her report fails to provide facts supporting the reason
for this opinion. Indeed, she never identifies any individual provider who breached the standard
of care. Also, her report doesn’t provide the basis or reason for her opinion that medical staff
caused Mr. Davis’s injuries.
Defendants’ correspondence to plaintiffs’ counsel in May 2019 addressed these
shortcomings, but plaintiffs never responded to that communication. And, plaintiffs never
supplemented the expert reports. As defendants correctly informed plaintiffs in the May 2019
letter, plaintiffs’ expert reports failed to comply with the requirements of Rule 26(a)(2)(B),
particularly the requirement that the expert report contain “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)
(emphasis added).
Defendants argue that plaintiffs’ failure to make the required Rule 26(a)(2)(B)
disclosures requires the court to exclude the expert reports under Fed. R. Civ. P. 37(c)(1). For

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support, defendants cite Gust v. Jones, 162 F.3d 587 (10th Cir. 1998). Gust involved an appeal
of a trial court’s order that “refused to allow [an expert] to offer opinion testimony on deviation
from the relevant standard of care” because the report disclosed under Rule 26(a)(2) “did not
express the opinion that the actions of the physician who initially treated [plaintiff] . . . rose to
the level of malpractice.” Id. at 592. The Circuit noted that “medical malpractice under Kansas
law means that a doctor did not exercise the ordinary skill and diligence of a competent
physician in a comparable medical community.” Id. (citing Chandler v. Neosho Mem’l Hosp.,
574 P.2d 136, 138 (Kan. 1977) (further citations omitted)). The Gust expert violated this
standard because his “report did not indicate that he was aware of the standard of care in
Burlington, Kansas, where [the treating doctor] practices, nor did it state that the course of
treatment [the doctor] followed was not recognized and approved in Burlington or a similar
community in 1993.” Id. Instead, the Circuit described a “fair reading” of the expert’s report as
showing “that he may have treated [plaintiff] differently than [the treating doctor] did, but it [did]
not express the opinion that [the doctor’s] actions rose to the level of malpractice.” Id. Thus, the
Circuit affirmed the trial court’s order excluding the expert testimony because any testimony that
the treating doctor’s “acts breached the appropriate standard of care . . . would have constituted
presentation of an opinion not offered in” the expert’s report that plaintiff disclosed under Rule
26(a)(2). Id.
Likewise, the experts’ reports here merely assert— in a somewhat conclusory fashion—
that these experts disagree with the treatment medical staff provided to Mr. Davis. But, they
don’t provide any factual basis or reasons supporting an opinion that the treating providers’
“actions rose to the level of malpractice.” Id.; see also Treaster v. HealthSouth Corp., 442 F.
Supp. 2d 1171, 1183 (D. Kan. 2006) (holding that expert’s “more generalized opinion” that

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doctor should have ordered a particular bed did not suffice to provide an expert opinion that the
doctor “was required to order a Vail bed in order to meet the standard of care[,]” and thus
precluding the expert from offering that specific opinion). Plaintiffs’ omission violated Rule
26(a)(2)(B). As a consequence, plaintiffs’ Rule 26(a)(2)(B) violation requires the court to
exclude their expert reports under Rule 37(c)(1).
Plaintiffs’ Opposition to the Motion to Exclude responds that the expert reports comply
with the Rule 26(a)(2) disclosure requirements. And thus, plaintiffs argue, the court shouldn’t
impose sanctions under Rule 37(c)(1). But plaintiffs never ask the court to excuse any failure to
comply with Rule 26(a)(2) because it was “substantially justified” or “harmless.” Fed. R. Civ. P.
37(c)(1). So, the court can’t apply Rule 37(c)(1)’s exceptions and excuse plaintiffs’ failure to
make the required Rule 26(a)(2) disclosures. Instead, Rule 37(c)(1) requires the court to exclude
plaintiffs’ expert reports as a sanction for failing to comply with Fed. R. Civ. P. 26(a)(2)(B). See
Fed. R. Civ. P. 37(c)(1) (explaining that if a party fails to disclose information or identify a
witness as required Rule 26(a), then “the party is not allowed to use that information or witness”
at trial (emphasis added)).
Plaintiffs also argue that the court already concluded on summary judgment that “taken
as a whole, the expert opinions provide sufficient expert testimony that Mr. Davis’s medical
providers breached the standard of care by failing to examine and assess Mr. Davis properly and
that these failures caused Mr. Davis’s damages because he never received a correct diagnosis
(before he died) or treatment for his condition.” Doc. 232 at 71. As defendants correctly argue,
this passage from the court’s summary judgment Order was addressing a different issue. This
merely addressed whether the expert reports had articulated a breach of the standard of care—not
whether the reports satisfied plaintiffs’ disclosure obligations under Fed. R. Civ. P. 26. After

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reviewing defendants’ motion and supporting documents, the expert reports fail to adhere to
those disclosure requirements because they don’t provide 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).
Defendants thus deserve an order excluding those expert reports under Rule 37(c)(1).
Finally, plaintiffs assert that defendants’ motion violates D. Kan. Rule 37.2 because
defendants didn’t satisfy the meet and confer requirement of that rule. D. Kan. Rule 37.2
provides:
The court will not entertain any motion to resolve a discovery dispute pursuant to
Fed. R. Civ. P. 26 through 37 . . . unless the attorney for the moving party has
conferred or has made reasonable effort to confer with opposing counsel concerning
the matter in dispute prior to the filing of the motion.
D. Kan. Rule 37.2. That Rule provides that a “‘reasonable effort to confer’ means more than
mailing or faxing a letter to the opposing party. It requires that the parties in good faith
converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.” Id.
Plaintiffs argue that defendants’ singular effort of sending the May 2019 letter on the expert
report issue fails to satisfy the meet and confer requirements of the court’s local rule.
But, defendants correctly respond, their Motion to Exclude under Rule 37(c) is a motion
for sanctions for failing to comply with discovery obligations—it’s not a “motion to resolve a
discovery dispute[,]” as contemplated by D. Kan. Rule 37.2. Thus, the meet and confer
requirement doesn’t apply here. See Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d
698, 707 (8th Cir. 2018) (“Seeking to enforce the automatic exclusion of evidence pursuant to
Rule 37(c)(1) does not require a party to first confer with the other party about whether the other
party's evidence should be excluded.” (citing Fulmore v. Home Depot, U.S.A., Inc., 423 F. Supp.
2d 861, 872 (S.D. Ind. 2006)). Cf. Wilbert v. Promotional Res., Inc., No. CIV. A. 98-2370-GTV,
1999 WL 760524, at *2 (D. Kan. Sept. 21, 1999) (refusing to compel production under Rule
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37(a) because defendant (the movant) didn’t comply with the Rule’s requirement to confer, but
noting that plaintiff had not produced documents required by Rule 26(a)(1)(C) and “[s]uch
failure, in appropriate circumstances, may invite consideration of sanctions under Fed. R. Civ. P.
37(c)(1), including exclusion of the evidence”).
For all these reasons, the court agrees with defendants. Plaintiffs’ expert reports fail to
comply with Rule 26(a)(2)(B)’s disclosure requirements. And, because plaintiffs have failed “to
provide information . . . as required by Rule 26(a)[,]” plaintiffs are “not allowed to use” the
expert opinions “at a trial[.]” Fed. R. Civ. P. 37(c)(1). Thus, the court grants the Motion to
Exclude Plaintiffs’ Expert Witnesses (Doc. 238).
IT IS THEREFORE ORDERED BY THE COURT THAT defendant Paul Corbier,
M.D.’s Motion to Exclude Plaintiffs’ Expert Witnesses (Doc. 238)—which defendant Corizon
Health, Inc. (Doc. 243) joins—is granted.
IT IS FURTHER ORDERED THAT defendant Paul Corbier, M.D.’s Motion to
Exclude Opinions of Plaintiff[s’] Expert Witness Gail Normandin-Carpio, RN on the Standards
of Medical Care Pursuant to Fed. R. Evid. 7021 (Doc. 241) is denied as moot.
IT IS SO ORDERED.
Dated this 13th day of May, 2022, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

By separate motion, Dr. Corbier asks the court to exclude Nurse Normandin-Carpio’s opinions
because, Dr. Corbier asserts, she’s not qualified to opine about the standard of care that apply to a
physician or surgeon. See Docs. 241, 242. Because the court excludes Nurse Normandin-Carpio’s expert
report under Rule 37(c)(1) for failing to comply with the Rule 26(a)(2) disclosure requirements, the court
doesn’t need to address Dr. Corbier’s other motion asking the court to exclude Nurse NormandinCarpio’s opinions.

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