Options Home Health of North Florida, Inc. et al v. Nurses Registy and Home Health Corporation et al
Filing
116
MEMORANDUM OPINION AND ORDER: Plas' 93 Motion in Limine to exclude Craig Carter, an attorney and accountant, from testifying as an expert witness at trial is GRANTED. Signed by Judge Joseph M. Hood on May 20, 2013. (AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
OPTIONS HOME HEALTH OF
NORTH FLORIDA, INC.,
BRIAN VIRGO, and
JOSH GOODE,
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)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
NURSES REGISTRY AND
HOME HEALTH CORPORATION,
Defendant.
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Action No. 5:11-cv-166-JMH
MEMORANDUM OPINION & ORDER
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This matter is before the Court on Plaintiffs’ Motion
in limine [DE 93] to exclude Craig Carter, an attorney and
accountant, from testifying as an expert witness at trial.
Defendant Nurses Registry and Home Health Corporation has
responded
[DE
Plaintiffs.
95]
and
a
reply
[DE
97]1
was
filed
by
This matter is now ripe for review.
Plaintiffs argue that Craig Carter, a fact witness who
acted
as
counsel
for
Nurses
Registry,
should
not
be
eligible to testify as an expert in this matter due to his
1
The Court notes that the only differences between the
Memorandum in support of the Motion [DE 93-1] and the Reply
[DE 97] filed in the record in this matter were the title
and the date contained in the certificate of service.
1
failure to produce a report in compliance with Fed. R. Civ.
P.
26 (a)(2)(B).
Defendant asserts that it was not clear
that a report was necessary because Mr. Carter’s role is
similar to that of expert whose opinion is based on upon
their involvement in the underlying facts of the case, thus
he
is
not
referenced
a
in
retained
or
Fed.
Civ.
R.
specially
P.
employed
26
expert
(a)(2)(B).
In
as
the
alternative, Defendant argues that the failure to provide a
report
was
understandable
and
Plaintiffs
harmed by its absence in this instance.
have
not
been
This Court remains
unpersuaded by Defendant’s argument.
First,
Mr.
Carter’s
Defendant believes.
role
is
less
ambiguous
than
Mr. Carter was retained as counsel “to
try to resuscitate the asset purchase transaction” after
the transfer of the Medicare license from Options to Nurses
Registry was denied.
[DE 95 at 1].
position
Carter
expert
toward
is
that
opinion
Mr.
“concerning
consummating
the
is
the
Nurses Registry’s
entitled
efforts
transaction”
firsthand knowledge of those events.
to
the
provide
parties
based
upon
[DE 95 at 2].
an
made
his
This
is, Nurses Registry argues, similar to a treating physician
who
is
entitled
to
provide
opinions
on
causation
and
prognosis without providing a report under Fed. R. Civ. P.
(a)(2).
However, the basis for the treating physician’s
2
exception is “the obvious fact that doctors may need to
determine the cause of an injury in order to treat it.”
Fielden v. CSX Transp., Inc., 482 F.3d 866 at 870 (6th Cir.
2007).
In other words, developing an opinion on causation
and prognosis is a part of the treating physician’s role
irrespective
of
any
later
request
to
offer
an
expert
opinion – that analysis was already completed during the
physician’s treatment.
treating
physician’s
original
diagnosis
However, where the purview of the
opinion
and
exceeds
treatment,
the
an
scope
expert
of
report
the
is
required before those opinions may be provided as evidence.
Fielden, 482 F.3d at 870-71.
According
to
Defendant’s
disclosure,
Mr.
Carter
is
expected to testify about the reasonableness of Defendant’s
actions
with
respect
License
and
medical
provider
that
“in
to
the
the
number
transfer
industry
is
an
of
the
asset
the
transfer
of
value
transfer from one health care provider to another.”
at 1].
Medicare
of
the
to
any
[DE 74
Based on this Court’s review of his deposition
transcript, it appears that Mr. Carter was also asked to
provide an opinion on the “value of the home health agency
as a Medicare certified agency and the value if a Medicare
provider number is not part of that agency.”
99].
Such
opinions
were
not
3
part
and
[DE 97-1 at
parcel
of
his
original
representation
of
the
defendant.
Thus,
even
assuming that the rationale for the treating physician’s
exception could apply to Mr. Carter, his expert opinions in
this instance do not fit within its boundaries.
His status
as a retained expert is quite clear.
Mr. Carter was specifically retained to provide expert
testimony sometime in 2012 — after litigation began and
long after his role in the underlying matter had concluded.
[DE
97-1
at
documents
99].
and
His
opinion
electronic
was
based
communication
on
certain
provided
by
Defendant [DE 74]. Such information was, presumably, not
available to him during his involvement in the underlying
matter.
In short, Mr. Carter was specifically retained in
this instance to expert testimony, the scope of which are
outside of his initial involvement in the case and he,
therefore, was required to provide a report as outlined in
Fed. R. Civ. P. 26 (a)(2).
The failure to make this disclosure operates as an
automatic
Carter.
bar
to
the
expert
testimony
offered
by
Mr.
Roberts ex rel. Johnson v. Galen of Virginia,
Inc., 325 F.3d 776, 782 (6th Cir. 2003); Fed. R. Civ. P.
37.
Such
exclusion
is
“mandatory
unless
there
is
a
reasonable explanation of why Rule 26 was not complied with
or the mistake was harmless.”
4
Bessemer v. Lake Erie R.R.
v. Seaway Martine Transp.,
596 F.3d 357, 370 (6th Cir.
2010)(internal quotation marks omitted).
Defendant has not
met its burden to demonstrate that Mr. Carter’s failure to
produce
a
harmless.
Inc.,
report
and
timely,
effective
disclosure
was
Roberts ex rel. Johnson v. Galen of Virginia,
325
omitted).
F.3d
776,
782
(6th
Cir.
2003)
(citations
Notice of Carter’s retention as an expert was
provided at a deposition, and his status was only disclosed
as
a
result
of
a
direct
question
by
opposing
counsel.
Carter was officially identified as an expert five (5) days
later. [DE 74].
Plaintiffs did not have notice of Carter’s
opinions and the basis therefore while preparing for Mr.
Carter’s deposition and, even while preparing for trial,
Plaintiffs still do not have the benefit of a complete
expert report.
Accordingly,
ORDERED
that
exclude
Craig
and
for
Plaintiffs’
Carter,
an
the
foregoing
Motion
in
attorney
reasons,
limine
and
[DE
5
IS
93]
to
accountant,
testifying as an expert witness at trial is GRANTED.
This the 20th day of May, 2013.
IT
from
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