Naz, LLC v. Philips Healthcare

Filing 328

ORDER AND REASONS: ORDERED that Philips 23 Motion for Summary Judgment regarding consequential damages waiver is DENIED WITHOUT PREJUDICE to Philips re-urging the motion if the jury finds that there is a contract incorporating Philips' standa rd Terms and Conditions of Sale. FURTHER ORDERED that Philips' 243 Motion for Summary Judgment to dismiss Plaintiffs' claims regarding the MRI's third-floor installation is DENIED. FURTHER ORDERED that Philips' 245 Motion for Summary Judgment on claims regrading 5 gauss line and surgery suite is DENIED. FURTHER ORDERED that Philips' 231 Motion to Strike Tianliang Gu isDENIED. FURTHER ORDERED that Philips' 233 Motion to Strike Thomas Read isDENIED. FURT HER ORDERED that Philips' 234 Motion to Strike William Dixon is GRANTED as to the legal conclusion that Philips was negligent, and otherwise DENIED. FURTHER ORDERED that Philips' 235 Motion to Strike Donald Marks isGRANTED. FURTHER OR DERED that Philips' 236 Motion to Strike John Theriot isDENIED. FURTHER ORDERED that Plaintiffs' 261 Motion to Strike Jeff Englert is DENIED. FURTHER ORDERED that Plaintiffs' 262 Motion to Strike Allen Ohlmeyer is DENIED. FU RTHER ORDERED that Plaintiffs' 263 Motion to Strike Tobias Gilk is DENIED. FURTHER ORDERED that Plaintiffs' 264 Motion to Strike Richard Rathe is DENIED. FURTHER ORDERED that Plaintiffs' 265 Motion to Strike Jeffrey Charlet is DENIED. FURTHER ORDERED that Philips' 239 Motion to Strike Bryan Bordeman is GRANTED. FURTHER ORDERED that Plaintiffs' 299 Motion to Strike Philips' reply memoranda is DENIED. FURTHER ORDERED that Phillips' 286 Motion to Strike new expert reports produced by Plaintiffs is DENIED as to the survey and DENIED as moot as to the purchase agreement. FURTHER ORDERED that Philips' 238 Motion in Limine to exclude evidence regarding subsequent remedial measures is DENIED. Signed by Judge Barry W Ashe on 1/2/19. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

NAZ, LLC, ET AL.

CIVIL ACTION

VERSUS

NO. 17-2882

PHILIPS HEALTHCARE, A DIVISION
OF PHILIPS ELECTRONICS NORTH
AMERICA CORPORATION

SECTION: M (4)

ORDER & REASONS
Before the Court are several motions for summary judgment filed by defendant Philips
Healthcare (“Philips”),1 a Division of Philips Electronics North America Corporation, to which
plaintiffs NAZ, LLC (“NAZ”) and Advanced Neurodiagnostic Center, Inc. (“Ad Neuro”)
(collectively “Plaintiffs”) respond in opposition;2 several motions in limine to exclude Plaintiffs’
experts filed by Philips,3 to which Plaintiffs respond in opposition,4 and in support of which Philips
replies;5 Plaintiffs’ motion to strike Philips’ reply memoranda in support of its motions to strike
Plaintiffs’ experts;6 several motions in limine to exclude Philips’ experts filed by Plaintiffs,7 to
which Philips responds in opposition;8 and Philips’ motion in limine to exclude evidence regarding
subsequent remedial measures,9 to which Plaintiffs respond in opposition,10 and in support of

1

R. Docs. 230, 243 & 245.
R. Docs. 271, 287 & 289.
3
R. Docs. 231, 233-236, 239 & 286.
4
R. Docs. 272, 279, 280, 282 & 283.
5
R. Docs. 302, 304, 306, 308, 310. Plaintiffs filed a motion to strike Philips’ reply memoranda arguing that
they unnecessarily added to the voluminous documents in this case (R. Doc. 299). Plaintiffs’ motion is DENIED, and
the Court will consider Philips’ reply memoranda.
6
R. Doc. 299.
7
R. Docs. 261-265.
8
R. Docs. 274-278.
9
R. Doc. 238.
10
R. Doc. 281.
2

1

which Philips replies.11 Having considered the parties’ memoranda and the applicable law, the
Court issues this Order & Reasons.
I.

BACKGROUND
This litigation arises from a medical facility’s purchase of allegedly faulty MRI

equipment,12 the manufacturer’s allegedly faulty installation and service of the MRI equipment,
as well as its failure to provide the purchaser with the “complete package,” including the hardware
and software components that should have been delivered when the MRI equipment was installed.
The Court has summarized the factual background of this matter in a previous Order & Reasons
and will not repeat the full summary herein.13
II.

LAW & ANALYSIS
A. Philips’ Motions for Summary Judgment
1. Summary Judgment Standard
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c) mandates
the entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which the party will bear the burden of proof at trial.” Id. A party moving
for summary judgment bears the initial burden of demonstrating the basis for summary judgment
and identifying those portions of the record, discovery, and any affidavits supporting the
conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets

11

R. Doc. 320.
MRI, or magnetic resonance imaging, is non-invasive imaging technology that, using a large magnet and
radio waves, produces three-dimensional detailed anatomical images or organs and structures inside the body.
13
R. Doc. 220.
12

2

that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate
the existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). The substantive
law identifies which facts are material. Id. Material facts are not genuinely disputed when a
rational trier of fact could not find for the nonmoving party upon a review of the record taken as a
whole. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Equal Emp’t Opportunity Comm’n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are
insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50; Hopper
v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary judgment motion, a court may
not resolve credibility issues or weigh evidence. See Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court must assess the
evidence, review the facts, and draw any appropriate inferences based on the evidence in the light
most favorable to the party opposing summary judgment. See Tolan v. Cotton, 572 U.S. 650, 656
(2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet, a court only draws
reasonable inferences in favor of the nonmovant “when there is an actual controversy, that is, when
both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
(1990)).
After the movant demonstrates the absence of a genuine dispute, the nonmovant must
articulate specific facts and point to supporting, competent evidence that may be presented in a
form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th
Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create more than “some

3

metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. When the nonmovant
will bear the burden of proof at trial on the dispositive issue, the moving party may simply point
to insufficient admissible evidence to establish an essential element of the nonmovant’s claim in
order to satisfy its summary judgment burden. See Celotex, 477 U.S. at 322-25; Fed. R. Civ. P.
56(c)(B). Unless there is a genuine issue for trial that could support a judgment in favor of the
nonmovant, summary judgment must be granted. See Little, 37 F.3d at 1075-76.
2. Philips’ Motion for Summary Judgment Regarding the Consequential Damages
Waiver (R. Doc. 230)
Philips moves for summary judgment on Plaintiffs’ consequential damages claim arguing
that Plaintiffs waived such a claim in executing Revision 10 or Revision 12 of the alleged contract
and agreeing to Philips’ standard “Terms and Conditions of Sale,” which includes clauses that
state:
12. Limitation of Liability. THE TOTAL LIABILITY, IF ANY, OF PHILIPS AND
ITS AFFILIATES FOR ALL DAMAGES AND BASED ON ALL CLAIMS,
WHETHER ARISING FORM BREACH OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER
TORT, OR OTHERWISE, ARISING FROM A PRODUCT, LICENSED
SOFTWARE, AND/OR SERVICE IS LIMITED TO THE PRICE PAID
HEREUNDER FOR THE PRODUCT, LICENSED SOFTWARE, OR SERVICE.
THIS LIMITATION SHALL NOT APPLY TO:
(a)

THIRD PARTY CLAIMS FOR BODILY INJURY OR DEATH CAUSED
BY PHILIPS’ NEGLIGENCE OR PROVEN PRODUCT DEFECT;

(b)

CLAIMS OF TANGIBLE PROPERTY DAMAGE REPRESENTING
THE ACTUAL COST TO REPAIR OR REPLACE PHYSICAL
PROPERTY DAMAGE;

(c)

OUT OF POCKET COSTS INCURRED BY CUSTOMER TO PROVIDE
PATIENT NOTIFICATIONS, REQUIRED BY LAW, TO THE EXTENT
SUCH NOTICES ARE CAUSED BY PHILIPS UNAUTHORIZED
DISCLOSURE OF PHI; AND

(d)

FINES/PENALTIES
LEVIED
AGAINST
CUSTOMER
BY
GOVERNMENT AGENCIES CITING PHILIPS UNAUTHORIZED
4

DISCLOSURE OF PHI AS THE BASIS OF THE FINE/PENALTY SUCH
FINES OR PENALTIES SHALL CONSTITUTE DIRECT DAMAGES.
13. DISCLAIMER. IN NO EVENT SHAL PHILIPS OR ITS AFFILIATES BE
LIABLE
FOR
ANY
INDIRECT
PUNITIVE,
INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT
LIMITATION, LOST REVENUES OR PROFITS, BUSINESS INTERRUPTION,
LOSS OF DATA, OR THE COST OF SUBSTITUTE PRODUCTS OR
SERVICES WHETHER ARISING FROM BREACH OF CONTRACT, BREACH
OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR
OTHER TORT.14
The parties previously made arguments regarding whether Plaintiffs agreed to Philips’
standard “Terms and Conditions of Sale” in connection with Philips’ motion to strike Plaintiffs’
jury demand.15 In ruling on that motion, this Court found that “there are disputed issues of material
fact regarding whether the parties entered into a written contract that incorporates Philips’ standard
‘Terms and Conditions of Sale.’”16 Thus, the Court ruled that trial of this matter will proceed in
two phases where the jury will decide whether the parties entered into a contract and, if so, what
the terms of that contract are.17 If the jury finds that there is no contract that incorporates Philips’
standard “Terms and Conditions of Sale,” the matter will proceed as a jury trial.18 On the other
hand, if the jury finds that there is a contract that incorporates Philips’ standard “Terms and
Conditions of Sale,” the Court will determine if Plaintiffs knowingly and voluntarily waived the
jury; and if they did, the remainder of the issues will be tried as a bench trial.19 If the jury finds
that Philips’ standard “Terms and Conditions of Sale” were not incorporated into a binding written
contract, or the Court finds that Plaintiffs’ jury waiver was not made knowingly and voluntarily,
then the remainder of the issues will be tried by the jury.20

14

R. Docs. 230-3 at 41 & 230-5 at 39. The language quoted above is included in Philips’ standard “Terms
and Conditions of Sale” attached to Revision 12 (R. Doc. 230-5). The version of clause 12 regarding limitation of
liability that is in Philips’ standard “Terms and Conditions of Sale” attached to Revision 10 does not include
subsections b through d.
15
R. Docs. 141, 187 & 191.
16
R. Doc. 220 at 22.
17
Id.
18
Id.
19
Id.
20
Id. at 22-23.

5

The same reasoning applies to the motion before the Court regarding the contractual
clauses waiving Plaintiffs’ right to seek consequential damages. There are disputed issues of
material fact that preclude summary judgment on the issue of whether the parties entered into a
contract incorporating Philips’ standard “Terms and Conditions of Sale.” Therefore, Philips’
motion for summary judgment on consequential damages is DENIED WITHOUT PREJUDICE to
Philips re-urging the motion if the jury finds that there is a contract incorporating Philips’ standard
“Terms and Conditions of Sale.”
3. Philips’ Motion for Summary Judgment to Dismiss Plaintiffs’ Claims Regarding
the Installation of the MRI on the Third Floor (R. Doc. 243)
Philips moves for summary judgment on Plaintiffs’ damages claims related to locating the
MRI on the third floor – instead of the second floor – arguing that Plaintiffs were solely responsible
for the design of the building, and thus have no basis for a claim for negligence or gross negligence
against Philips with respect to delays and expenses caused by the location of the MRI equipment.21
Philips argues that it simply advised that design changes were required to prevent interference with
the equipment caused by the cars in the parking lot below the second floor, and it was Plaintiffs’
choice to follow that advice and install the MRI equipment on the third floor.22 Philips also argues
that Plaintiffs have no claim for breach of contract with respect to the installation location because
there was no installation or service agreement.23 Further, Philips argues that disclaimers included
in the site preparation documents and Philips’ standard “Terms and Conditions” absolve it from
any responsibility related to the location of the MRI equipment.24
As explained by Plaintiffs in their opposition memorandum, there are genuine issues of
material fact that preclude summary judgment on Plaintiffs’ claims related to the third-floor
installation of the MRI equipment. The facts surrounding the installation of the MRI equipment

21

R. Doc. 243-1 at 5-9.
Id. at 3.
23
Id. at 12-14.
24
Id. at 14-19.
22

6

and the duties allegedly assumed by Philips are highly contested issues. Further, as explained
above, there are genuine issues of material fact regarding whether the parties entered into any
contracts and what the terms of those contracts are. Therefore, Philips’ motion for summary
judgment on the third-floor installation issue is DENIED.
4. Philips’ Motion for Summary Judgment on Claims Regrading 5 Gauss Line and
Surgery Suite (R. Doc. 245)
Philips moves for summary judgment on Plaintiffs’ claims for damage related to the loss
of the opportunity to have an ambulatory surgery center at the facility.25 Philips argues that
Raymond Bergeron, Plaintiffs’ architect, testified that he did not design the facility to include an
ambulatory surgery center.26 Philips also argues that Plaintiffs were informed by their own expert
in medical physics and MRI safety, Tianliang Gu, PhD, that the problem of the 5 gauss line
extending into the next room could have been solved by blocking off the affected area with a piece
of furniture.27 Finally, Philips argues that the disclaimers on its drawings preclude liability for the
placement of the 5 gauss line.28
Plaintiffs argue that there are genuine issues of material fact that preclude summary
judgment on their claims related to the 5 gauss line.29 Plaintiffs argue that they had planned to put
the MRI equipment on the second floor so that an ambulatory surgery center could eventually be
constructed on the third floor, and Philips’ insistence that the MRI equipment go on the third floor
foiled these plans.30 Plaintiffs also argue that blocking the 5 gauss line with a piece of furniture to
utilize the space as an ambulatory surgery center was not a viable option, and that the disclaimer
is unenforceable because it was not explained to Plaintiffs.31

25

R. Doc. 245.
R. Doc. 245-1 at 7-8.
27
Id. at 5-7.
28
Id. at 6-7.
29
R. Doc. 289.
30
Id. at 4-5.
31
Id. at 3-4.
26

7

Just like Plaintiffs’ claims related to the third-floor installation, there are genuine issues of
material fact that preclude summary judgment on Plaintiffs’ claims related to the 5 gauss line. The
facts surrounding the installation of the MRI equipment are highly contested issues. Further, as
explained above, there are genuine issues of material fact regarding whether the parties entered
into any contracts and what the terms of those contracts are, including any disclaimers. Therefore,
Philips’ motion for summary judgment on the 5 gauss line issue is DENIED.
B. Philips’ and Plaintiffs’ Daubert Motions
1. Daubert Standard
A district court has discretion to admit or exclude expert testimony under the Federal Rules
of Evidence. General Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997). In Daubert v. Merrell Dow
Pharm., 509 U.S. 579, 589 (1993), the Supreme Court held that Rule 702 requires a district court
to act as a gatekeeper to ensure that “any and all scientific testimony or evidence admitted is not
only relevant, but reliable.” Rule 702 of the Federal Rules of Evidence provides:
A witness qualified as an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an opinion or otherwise, 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.
The reliability inquiry requires a court to assess whether the reasoning or methodology
underlying the expert’s testimony is valid. See Daubert, 509 U.S. at 592-93. In Daubert, the
Supreme Court listed several non-exclusive factors for a court to consider in assessing reliability:
8

(1) whether the theory has been tested; (2) whether the theory has been subjected to peer review
and publication; (3) the known or potential rate of error; and (4) the general acceptance of the
methodology in the scientific community. Id. at 593-95. However, a court’s evaluation of the
reliability of expert testimony is flexible because “[t]he factors identified in Daubert may or may
not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” Kumho Tire v. Carmichael, 526 U.S. 137, 150 (1999).
In sum, the district court must ensure “that an expert, whether basing testimony upon professional
studies or personal experiences, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Id. at 152. The party offering the
testimony must establish its reliability by a preponderance of the evidence. See Moore v. Ashland
Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
Because the fact-finder is “the proper arbiter of disputes between conflicting opinions,”
generally “questions relating to the bases and sources of an expert’s opinion affect the weight to
be assigned to that opinion rather than its admissibility” and should be left for the [fact-finder’s]
consideration.” United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996)
(quotation omitted). Indeed, “[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.” Daubert, 509 U.S. at 596.
Next, the district court must determine whether the expert’s reasoning or methodology
“fits” the facts of the case and whether it will assist the trier of fact to understand the evidence,
i.e., whether it is relevant. Daubert, 508 U.S. at 591. An expert’s testimony is not relevant and
may be excluded if it is directed at an issue that is “well within the common sense understanding
of jurors or requires no expert testimony.” Vogler v. Blackmore, 352 F.3d 150, 156 (5th Cir. 2003).
Further, an expert cannot make “legal conclusions reserved for the court,” credit or discredit

9

witness testimony, or “otherwise make factual determinations reserved for the trier of fact.”
Highland Capital Mgmt., L.P. v. Bank of Am., N.A., 574 F. App’x 486, 491 (5th Cir. 2014).
Rule 702 also requires that an expert be properly qualified. Generally, if there is some
reasonable indication of qualifications, the district court may admit the expert’s testimony, and
then the expert’s qualifications become an issue for the trier of fact. Rushing v. Kan. City S. Ry.,
185 F.3d 496, 507 (5th Cir. 1999), superseded in part by statute on other grounds as noted in
Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th Cir. 2002). A witness qualified as an expert
is not strictly confined to his area or practice but may testify regarding related applications; a lack
of specialization goes to the weight, not the admissibility of the opinion. Cedar Lodge Plantation,
L.L.C. v. CSHV Fairway View I, L.L.C., 2018 WL 4932716, at *3 (5th Cir. Oct. 10, 2018)
(quotations and citations omitted).
2. Philips’ Motion to Strike Tianliang Gu (R. Doc. 231)
Philips seeks to exclude the testimony of Plaintiffs’ purported expert in medical physics
and MRI safety, Tianliang Gu, PhD. (“Gu”).32 Philips argues that Gu’s opinions are unreliable
because his statements regarding the slow movement of the magnet, the propriety of the quenching,
Philips’ alleged failure to inspect the vent after quenching, the site planning, and the 5 gauss line
are not supported by data, verifiable calculations, or peer-reviewed studies.33 Philips also contends
that Plaintiffs, per the American College of Radiology Guidance, were responsible for inspecting
the vent after the quench, not Philips.34 Further, Philips contends that Gu’s report makes a legal
conclusion by suggesting that Philips had a duty to suggest to Plaintiffs options for installing the
MRI equipment on the second floor.35

32

R. Doc. 231.
R. Doc. 231-1 at 7-15.
34
Id. at 9-10.
35
Id. at 11-12.
33

10

Plaintiffs argue that Gu is qualified to testify as an expert in physics and MRI safety.36 Gu
earned a Master of Science in Theoretical Physics in 1999 and a Ph.D. in Medical Physics in
2004.37 He is Board Certified by the American Board of Radiology and is a diagnostic imaging
physicist and MRI safety officer for Ochsner Medical Center.38 Gu has spoken at several
conferences and contributed to numerous scientific papers.39

He has worked with MRI

manufacturers and engineers and is responsible for approving site plans for MRI facilities.40
Plaintiffs contend that Gu’s opinions are relevant and reliable as they are supported by his vast
knowledge and experience in the field of physics and his observations in this case.41
Gu’s education and experience as a medical physicist qualify him to testify as an expert in
the field of medical physics and MRI safety. His opinions regarding the slow movement of the
magnet, the propriety of the quenching, Philips’ alleged failure to inspect the vent after quenching,
the site planning, and the 5 gauss line are relevant and reliable because they are based on his
experience as applied to his observations in this case. To the extent Philips questions the content
of and support for Gu’s report, and his lack of independent calculations, Philips will have an
opportunity to explore these issues through cross-examination of Gu and the presentation of
countervailing testimony. As such, Philips’ motion to exclude Gu is DENIED.
3. Philips’ Motion to Strike Thomas Read (R. Doc. 233)
Philips seeks to exclude the testimony of Plaintiffs’ purported expert in engineering and
material science, Thomas Read, PhD, P.E. (“Read”).42 Philips argues that, while Read certainly
has expertise in some areas of engineering and materials science, he is not qualified to testify as
an expert in this case because he lacks education and experience in MRI sales, design of MRI

36

R. Doc. 282 at 2-3.
R. Doc. 282-1 at 1.
38
Id.
39
Id. at 1-2.
40
R. Doc. 282-2 at 27,
41
R. Doc. 282 at 3-4.
42
R. Doc. 233.
37

11

suites, and installation and function of MRI equipment.43 Philips also argues that Read’s opinions
are not reliable because his report is disorganized and his opinions are not supported by published
studies or scientific techniques.44 Rather, one opinion is supported by referencing Wikipedia.45
Philips argues that Read’s unsupported opinions would confuse the trier of fact and should be
excluded.46
Plaintiffs argue that Read’s testimony is admissible because he is qualified to testify as an
expert materials scientist and offers relevant, reliable opinions in this case.47 In 1965, Read earned
a Bachelor of Science in Metallurgical Engineering from the University of Pennsylvania.48 He
earned a Master of Science in Materials Science and a Ph.D. in Materials Science and Engineering
in 1967 and 1972, respectively, from Stanford University.49 Read is a Registered Professional
Manufacturing Engineer in California, with forty years of experience as a manufacturing engineer
and over fifty years of experience performing materials failure analysis.50 Plaintiffs argue that
Read’s opinions are about the failures of the materials of the foot pads and quench-pipe caulking,
and that his education and experience render him qualified to give such opinions.51
Read’s education and experience as a materials scientist qualify him to testify as an expert
in the field of materials science. His opinions regarding the alleged materials failures with respect
to the footpads and quench-pipe caulking are relevant and reliable. To the extent Philips questions
the content of Read’s report, and his limitations in the areas of MRI safety, design, and operation,
Philips will have an opportunity to explore these issues through cross-examination of Read and

43

R. Doc. 233-1 at 8.
Id. at 11.
45
Id.
46
Id. at 13-14.
47
R. Doc. 279.
48
R. Doc. 279-1 at 1.
49
Id.
50
Id.
51
R. Doc. 279 at 3-4.
44

12

the presentation of countervailing testimony. As such, Philips’ motion to exclude Read is
DENIED.
4. Philips’ Motion to Strike William Dixon (R. Doc. 234)
Philips seeks to exclude the testimony of Plaintiffs’ purported expert in the installation and
repair of MRI equipment, William Dixon (“Dixon”).52 Philips argues that Dixon is not qualified
to render expert opinions concerning the MRI equipment suite located in Plaintiffs’ facility
because he does not have sufficient education and experience.53

Dixon has an electrical

engineering degree from DeVry, which included only two physics classes and no education on
mechanical engineering or materials science.54 His training on MRI equipment consists of on-thejob training when he was employed by equipment manufacturers.55 Dixon does not have any
experience designing MRI suites.56 Philips also argues that Dixon’s opinions are unreliable
because they lack analytical reasoning, pertinent calculations, and peer-reviewed methodology.57
Philips argues that Dixon’s report is confusing because it is vague and disorganized.58 Further,
Philips argues that Dixon’s report contains an inadmissible legal conclusions when he states that
Philips acted “indirectly” as a turnkey provider and that “it is blatantly clear that there exists
multiple occurrences of negligence.”59 Finally, Philips argues that Dixon’s opinions conflict with
opinions given by Plaintiffs’ purported expert in Food and Drug Administration (“FDA”)
regulations, Donald Marks, regarding whether the alleged movement of the MRI equipment was a
hazard.60

52

R. Doc. 234.
R. Doc. 234-1 at 7
54
R. Doc. 234-8 at 21.
55
Id. at 6.
56
Id. at 32.
57
R. Doc. 234-1 at 9-14.
58
Id. at 14.
59
Id. at 17.
60
Id. at 18. The Court will not address this issue because it grants Philips’ motion to strike Marks.
53

13

Plaintiffs argue that Dixon is qualified to testify as an expert in the installation and
servicing of MRI equipment based on his electrical engineering degree and 18 years of experience
as a service engineer of MRI equipment.61 Dixon is the owner of an MRI service company and
performs repairs, installations, de-installations, and inspections of MRI equipment worldwide.62
He has placed MRI equipment using the manufacturer’s specifications, performed measurements
regarding the placement of the MRI’s isocenter, followed the manufacturer’s siting plan regarding
where to place the magnet with respect to the magnetic steel shielding, and performed calculations
and informed the manufacturer where to place the MRI equipment at the minimum distance.63
Further, Dixon has experience installing Philips’ MRIs, including the model at issue in this case.64
Finally, he has been involved in the quenching of MRI equipment and has experience measuring
the 5 gauss line.65 Plaintiffs contend that Dixon’s opinions based on his experience are relevant
and better explained in his deposition testimony than in his report.66
Dixon’s experience installing and repairing MRI equipment qualify him to testify as to
such activities. His opinions regarding the slow movement of the magnet, the propriety of the
actions of Philips’ employees, and general issues involving the installation and servicing of the
MRI equipment are relevant and reliable because they are based on his experience as applied to
his observations in this case. To the extent Philips questions the content of Dixon’s report, and his
lack of independent calculations and formal education in certain sciences, Philips will have an
opportunity to explore these issues through cross-examination of Dixon and the presentation of
countervailing testimony.

However, Dixon’s statement that there was negligence is an

inadmissible legal conclusion. On the other hand, his opinions about what services Philips should

61

R. Doc. 283 at 1.
R. Doc. 283-1 at 1.
63
Id. at 7-8.
64
Id. at 9.
65
R. Doc. 283 at 4 & R. Doc. 283-1 at 4.
66
R. Doc. 283 at 6-8.
62

14

have performed do not constitute legal conclusions. As such, Philips’ motion to exclude Dixon is
GRANTED as to the legal conclusion that Philips was negligent, and otherwise DENIED.
5. Philips’ Motion to Strike Donald Marks (R. Doc. 235)
Philips seeks to exclude the testimony of Plaintiffs’ purported expert in FDA regulations,
Donald Marks (“Marks”).67 Philips argues that Marks does not have any education or experience
regarding MRI equipment and his opinions constitute impermissible legal conclusions.68 Philips
argues that Marks, as a medical doctor who was previously involved in the pharmaceutical
industry, is not an expert in the FDA regulations pertaining to the installation of MRI equipment.69
Marks does not quote the FDA regulations upon which he relies to show how they are applicable,
and he makes impermissible legal conclusions that Philips violated the law by allegedly failing to
comply with those regulations.70 Philips also argues that Marks’ ultimate conclusion, as follows,
is an inadmissible “bundle of legal conclusions:”
It is thus my opinion that Philips cannot limit its obligations to insure that the
system only meet Philips[’] “performance specifications”; but it is also obligated to
insure that the MRI system meets all specifications to insure the proper and safe
operation of the MRI system; and that would include ensuring that the location and
positioning of the MRI magnet would not ultimately create a hazard.71
Finally, Philips argues that Marks’ opinion that the movement of the MRI equipment created a
hazard will confuse the jury because that opinion contradicts an opinion rendered by another
Plaintiffs’ expert.72
Plaintiffs argue that Marks is qualified to testify as an expert in FDA regulations because
he has experience in filing applications with the FDA regarding drugs and medical equipment,
including MRI components, and worked in the regulatory affairs departments of companies at

67

R. Doc. 235.
R. Doc. 235-1 at 1.
69
Id. at 8-9.
70
Id. at 10-12.
71
Id. at 12 (citing R. Doc. 235-9 at 4) (emphasis in original).
72
Id. at 14.
68

15

which he was employed.73 Plaintiffs argue that it is immaterial that Marks does not have specific
experience with FDA regulations pertaining to MRI manufacturers because his experience in
studying FDA regulations allows him to evaluate the ones applicable to Philips.74 Plaintiffs
contend that Marks will explain the purpose of FDA regulations and “Marks’ opinion is, in
essence, assisting the jury by explaining that FDA regulations must be followed by Philips.”75
Further, Plaintiffs argue that Marks “will explain that Philips cannot absolve itself from
responsibility by words in a site plan drawing or create sole responsibility on Plaintiffs because
FDA regulations designed to place responsibility of safety on manufacturers must be complied
with and not circumvented.”76 Finally, Plaintiffs argue that Marks’ testimony does not conflict
with that of another Plaintiffs’ expert.77
Marks does not have specific experience with FDA regulations pertinent to the installation
of MRI equipment. His experience with MRI equipment is limited to using MRI images for a few
articles he wrote that have nothing to do with the design or installation of MRI equipment.78 At
his deposition, Marks testified that he is not an expert in the requirements for MRI installation.79
Marks also incorrectly testified that MRI equipment emits x-rays and requires a certain FDA
form.80 Further, Marks offers opinions regarding FDA regulations for reporting incidents after
they occur, which opinions are irrelevant to the issues in this case.81 Marks also incorrectly
testified that Philips did not obtain pre-market approval from the FDA for the MRI equipment at
issue.82 Finally, Marks’ report offers impermissible legal conclusions regarding Philips’ ability to

73

R. Doc. 280 at 3.
Id. at 5-6.
75
Id. at 3-4.
76
Id. at 7.
77
Id.
78
R. Doc. 310-2 at 4.
79
Id. at 15.
80
R. Doc. 310 at 5.
81
Id. at 6-7.
82
Id. at 7-8
74

16

contract out of legal obligations. To the extent FDA regulations are applicable to the issues in this
case, the Court will either issue an appropriate jury instruction or consider them in formulating its
Findings of Fact and Conclusions of Law. Because Marks is not qualified to offer opinions
regarding FDA regulations applicable to MRI installation, offers inapplicable or potentially
inaccurate testimony, and offers inadmissible legal conclusions, Philips’ motion to exclude Marks
is GRANTED.
6. Philips’ Motion to Strike John Theriot (R. Doc. 236)
Philips seeks to exclude the testimony of Plaintiffs’ purported expert certified public
accountant (“CPA”), John Theriot (“Theriot”).83 Philips does not dispute that Theriot, who is an
accountant with significant experience in business valuation and litigation, is qualified to render
expert opinions in the field of accounting and lost profits.84 Philips argues that Theriot’s opinions
are not based on market data or data from other facilities owned by Plaintiffs, and provide no
verifiable calculations.85 Philips also argues that Theriot’s calculations regarding lost profits from
an ambulatory surgery center are irrelevant because the architect who designed the building made
a sworn statement that no such facility was included in the building plans.86 Philips contends that
Theriot’s opinions should be excluded because he does not show that the figures upon which he
relied are accurate or relevant and does not account for future business trends.87
Plaintiffs argue that Theriot’s opinions are relevant and reliable. Theriot has a Bachelor of
Science in Accounting from Nicholls State University and a Master of Science in Accounting from
Tulane University.88 He is the managing partner of the public accounting firm Malcolm M. Dienes,
LLC, and has over thirty years of experience in public accounting.89 He is a CPA, certified forensic

83

R. Doc. 236.
R. Docs. 236-2 & 236-6 at 16-34.
85
R. Doc. 236-2 at 8.
86
Id. at 9.
87
Id. at 11.
88
R. Doc. 272-2 at 1.
89
Id.
84

17

accountant, and certified in financial forensics, with extensive litigation experience, having
provided testimony in more than 200 cases.90 Plaintiffs argue that Theriot used an accepted method
of calculating lost profits by determining the number of MRI scans that would have occurred each
day based on evidence in the case and the amount of revenue earned from each using information
provided by a life-care planner, and then creating a lost-profits model.91 Theriot used the
ambulatory surgery center’s profits as the baseline for his calculations.92 Thus, Plaintiffs contend
that Theriot should be permitted to testify.
Theriot is qualified to testify as an expert in the field of accounting and lost profits. He
offers relevant and reliable opinions regarding Plaintiffs’ lost profits. To the extent Philips
question the content of Theriot’s report, including his alleged faulty assumptions and lack of
independent research and analysis, and his calculations, Philips will have an opportunity to explore
these issues through cross-examination of Theriot and the presentation of Plaintiffs’ retained
expert CPA and other countervailing testimony. As such, Philips’ motion to exclude Theriot is
DENIED.
7. Plaintiffs’ Motion to Strike Jeff Englert (R. Doc. 261)
Plaintiffs seek to exclude the testimony of Philips’ purported expert CPA, Jeff Englert
(“Englert”).93 Plaintiffs argue that Englert is not qualified to testify as an expert in the lost profits
analysis of a healthcare facility because he does not have “sufficient training, experience or
knowledge” to perform, and has never performed, a lost-profits analysis pertaining to a healthcare
facility.94 Plaintiffs contend that Englert’s experience as a CPA working on insurance claims and

90

Id.
R. Doc. 272 at 4-5.
92
Id. at 6.
93
R. Doc. 261.
94
R. Doc. 261-1 at 6.
91

18

audits of settlements in a multi-district litigation case in federal court is insufficient to qualify him
to testify as an expert accountant in this matter.95
Plaintiffs argue that Englert’s opinions are not reliable or relevant because “they are not
supported by any verifiable research, data, calculations, and/or analysis, and are based on
speculative theories and insufficient, one-sided facts and assumptions.”96 Plaintiffs contend that
Englert’s opinions must be excluded because he did not perform an independent analysis of
Plaintiffs’ lost profits, but instead offers a critique of the report authored by Theriot.97 Specifically,
Plaintiffs contend that Englert concludes that Theriot’s loss period is unsupported, but Plaintiffs
contend that Englert “simply ignores Plaintiffs’ claims of issues which delayed the original
installation of the MRI, and continued issues with the MRI which has prevented the facility from
ever operating at full capacity, prevented Plaintiffs from hiring other physicians, and prevented
Plaintiffs from taking the necessary steps to finish the surgery rooms for the ambulatory surgery
center.”98 Plaintiffs cite specific examples of lost profits and physician retention that they claim
Englert ignored.99
Further, Plaintiffs argue that Englert’s report does not include market data or an
independent market analysis.100 Englert opines that some of the patients who would have used the
MRI at issue used another one owned by Plaintiffs, thus resulting in no lost profits.101 Plaintiffs
contend that this opinion is faulty because Englert failed to account for the differences in the MRI
machines and that the other one was taken out of service.102 Plaintiffs again argue that Englert’s
report in this respect is not useful to the jury because it is simply a critique of Theriot.103

95

Id. at 6-7.
Id. at 8.
97
Id.
98
Id.at 8-9.
99
Id. at 9.
100
Id. at 9-10.
101
Id. at 9.
102
Id. at 9-10.
103
Id. at 10.
96

19

Philips argues that Englert is qualified to testify as an expert CPA and his “opinions are
based on a reliable review of records and a sound methodology that is generally accepted in his
field.”104 Englert is a vice president in the Forensic Accounting and Claims Services Practice of
Marsh Risk Consulting (“Marsh”).105 He is a CPA and a certified fraud examiner (“CFE”), having
earned a Bachelor of Science in Accounting from Louisiana State University and a Master of
Science in Accounting from the University of Texas at Austin.106 From 2008 to 2014, Englert was
a manager at Ernst & Young LLP, and from 2014 to 2017 he was the director of audit for the BP
settlement program.107 Englert has been employed at Marsh since 2017 where his practice
“focuses on providing forensic accounting services in the measurement of complex insurance
claims” in a variety of industries.108

He also has experience in “performing forensic and

investigative accounting work utilizing electronic evidence discovery and data mining.”109
Philips argues that any issues Plaintiffs have with the research, data, calculations, analysis,
theories, and facts underlying Englert’s opinions can be developed at trial through rigorous crossexamination and the presentation of contrary opinions and evidence.110 Philips also argues that
Englert’s opinions are largely an evaluation of Theriot’s opinions because Theriot’s calculations
that Plaintiffs lost $34,000,000 in profits “represent in large part what is at issue in this case,” and
Theriot based that opinion on assumptions Plaintiffs asked him to make, rather than on market
research and independent analysis.111 Philips contends that Englert’s testimony will assist the factfinder to understand the various figures at issue in this case.112

104

R. Doc. 278 at 1.
R. Doc. 278-1.
106
Id.
107
Id. The BP settlement program was created to administer the disbursement of billions of dollars in
damages for civil claims arising from MDL No. 2179 In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf
of Mexico on April 20, 2010.
108
Id.
109
Id.
110
R. Doc. 278 at 2-3.
111
Id. at 3.
112
Id. at 6.
105

20

Although Englert has not testified in the last four years, and his CV does not specifically
identify any experience in evaluating the lost profits of a healthcare facility in particular,113 his
education and general experience as a CPA and CFE qualify him to testify as an expert in the field
of accounting and provide him with the tools needed to evaluate any business’s lost profits. To
the extent Plaintiffs question the content of Englert’s report, including his alleged faulty
assumptions and lack of independent research and analysis, Plaintiffs will have an opportunity to
explore these issues through cross-examination of Englert and the presentation of Plaintiffs’
retained expert CPA and other countervailing testimony. As such, Plaintiffs’ motion to exclude
Englert is DENIED.
8. Plaintiffs’ Motion to Strike Allen Ohlmeyer (R. Doc. 262)
Plaintiffs seek to exclude the testimony of Philips’ purported expert healthcare architect,
Allen Ohlmeyer (“Ohlmeyer”).114 Plaintiffs do not challenge Ohlmeyer’s qualifications as an
architect.115 Rather, they argue that Ohlmeyer’s opinions are not relevant and will not assist the
trier of fact in this case.116 Plaintiffs argue that Ohlmeyer’s report consists of a recitation of the
documents he reviewed without any opinions, and that the opinions he offers regarding the
responsibilities of the owner are not based on facts.117 Further, Plaintiffs argue that an expert
opinion is not needed to identify the proper use of the building.118 Plaintiffs also argue that
Ohlmeyer offers impermissible legal conclusions regarding the responsibilities of people involved
in the construction of the facility.119 Specially, Plaintiffs contend that the following statements
constitute impermissible legal conclusions:

113

R. Doc. 278-1.
R. Doc. 262.
115
R. Doc. 262-1.
116
Id. at 6-7.
117
Id. at 6.
118
Id.
119
Id. at 7.
114

21

1. The quench resulted in the failure of the seal between the helium exhaust pipe
and the metal roof … The Owner assumed responsibility for the system’s design
and performance when he failed to ensure that the system was installed in
accordance with [the] plans.
2. The two ORs observed would be well beyond the three-patient limit and would
not be allowed within Business Occupancy.
3. Of the documents [Ohlmeyer] reviewed there were none that indicated the
Owner hired a design professional to coordinate the magnet installation, nor were
there any that indicated the Owner purchased the magnet as a turn-key package
from Philips. Consequently, it became the Owner’s responsibility to coordinate the
equipment and all of its site preparation requirements, including magnetic and RF
shielding …
4. Without [Raymond C. Bergeron, Jr. Architects’] or a General Contractor’s
participation in coordinating shielding documents it would have become the
Owner’s responsibility to ensure the shielding requirements were met. Philips
notes in its Final Site Preparation Support Document that it is the Owner’s
responsibility for the preparation of the site. Thus, the responsibility for
coordinating the contents of the Lee & Associations drawings would have been the
Owner’s, either directly or through his Architect or General Contractor.
5. Because [Raymond C. Bergeron, Jr. Architects] only prepared the Architectural
drawings for the Tenant Buildings it would have become the Owner’s responsibility
to coordinate the work of engineers.120
Philips argues that Ohlmeyer should be permitted to testify as an expert healthcare architect
based on his extensive education and experience, which he applied to render his opinions in this
case.121 Ohlmeyer obtained a Bachelor of Architecture from Louisiana State University in 1991.122
For the last 24 years, Ohlmeyer has specialized in the planning and design of healthcare facilities,
including ones that house MRI equipment.123 Since 2005, he has been the director of healthcare
design at Sizeler Thompson Brown Architects, where he oversees all of the firm’s healthcare
projects.124 Ohlmeyer is board certified as a healthcare architect by, and a member of, the

120

R. Doc. 262-1 at 7-9 (citing R. Doc. 262-2 at 4-8).
R. Doc. 277 at 1.
122
R. Doc. 277-1 at 1.
123
Id.at 1-3.
124
Id.
121

22

American College of Healthcare Architects, and is also a member of the American Society for
Healthcare Engineering of the American Hospital Association.125
Philips also argues that Ohlmeyer’s opinions as an expert in healthcare architecture are
relevant to the issues of this case because they will aid the trier of fact in evaluating the construction
of the MRI facility in light of the industry regulations, standards, and practices, which evaluation
is outside the life experiences of an average layperson.126 Philips further argues that Ohlmeyer’s
recitation of the documents he reviewed is a description of his methodology in which he applied
his experience to identify important issues concerning the construction and to explain their
importance.127 Finally, Philips argues that Ohlmeyer’s opinions regarding the parties’ respective
responsibilities in the construction process are not legal conclusions, but rather opinions regarding
industry practice.128
Ohlmeyer’s education and experience qualify him to testify as an expert in the field of
healthcare architecture. Ohlmeyer’s report demonstrates that his opinions in this case are relevant
to the issues regarding the construction of the MRI suite and cause of Plaintiffs’ alleged damages.
Further, Ohlmeyer’s report offers opinions on industry standards and practices, not impermissible
legal conclusions. To the extent Plaintiffs question the content of Ohlmeyer’s report, Plaintiffs
will have an opportunity to explore these issues through cross-examination of Ohlmeyer and the
presentation of countervailing testimony. As such, Plaintiffs’ motion to exclude Ohlmeyer is
DENIED.
9. Plaintiffs’ Motion to Strike Tobias Gilk (R. Doc. 263)
Plaintiffs seek to exclude the testimony of Philips’ purported expert in the field of MRI
safety, siting, installation, and operation, Tobias Gilk (“Glick”).129 Plaintiffs argue that Glick is

125

Id. at 1.
R. Doc. 277 at 3.
127
Id. at 4.
128
Id. at 5-7.
129
R. Doc. 263.
126

23

not qualified to testify as an expert in those fields because: he is an architect who has worked as a
subcontractor on projects where the MRI was installed by other contractors; he has no engineering
qualifications; he has no experience in designing helium quench vent piping; he has not been a
general contractor on an MRI installation project; he has no experience with the RF shielding
configuration, including the calculation of magnetic forces and thickness of the steel; he has not
been employed by an MRI manufacturer; and he has never been involved in a forced quench of an
MRI machine.130
Plaintiffs also argue that Gilk’s opinions are not reliable because they are not based on
engineering methodology or objective analysis, calculations, and data.131 Plaintiffs argue that
Gilk’s lack of expertise in engineering renders unreliable his opinions regarding: moving the MRI
equipment from the second floor to the third; whether Philips was not required to provide
professional design and construction coordination services to Plaintiffs; rebuttal of Gu’s opinions
regarding the cause of the movement of the MRI equipment; whether the footpads supporting the
MRI were not properly tested; the propriety of the quench process; and the proper design of the
helium quench pipe.132 Plaintiffs also argue that Gilk’s simulation of the quench process is not
admissible because of differences between his simulation and what actually occurred.133 Further,
Plaintiff’s argue that Gilk offers impermissible legal conclusions by stating that Philips had no
duty to provide design and construction services or to inspect the pipes after the quench process.134
Finally, Plaintiffs argue that Gilk’s opinions are not based on sufficient information because he
did not consider the particular circumstances involved in this case regarding Philips’ involvement
in the building of the facility.135

130

R. Doc. 263-1 at 4-6.
Id. at 7.
132
Id. at 8-12, 13133
Id. at 12-13.
134
Id. at 14-15.
135
Id. at 15-17.
131

24

Philips argues that Gilk’s experience qualifies him to testify as an expert in the field of
MRI safety, siting, installation, and operation.136 Gilk is an architect who is MR safety certified
by the American Board of Magnetic Resonance Safety.137 He has designed or consulted on the
installations of hundreds of MRI machines, including those manufactured by Philips.138 Gilk has
authored or contributed to more than seventy studies in his field of expertise.139 Philips contends
that Gilk’s opinions do not require engineering experience, as argued by Plaintiffs, but rather are
based on his actual experience in working with MRI installation projects.140 Further, Philips
argues that Gilk’s opinions are rendered from his perspective as an architect, MRI safety expert,
and one of the authors of the American College of Radiology guidelines upon which Gu relies to
render his opinions.141 In sum, Philips argues that Plaintiffs’ issues with the contents of Gilk’s
report should be handled through cross-examination, not exclusion of Gilk’s testimony.142
Gilk’s experience qualifies him to testify as an expert in the field MRI safety, siting,
installation, and operation. Further, Gilk’s report demonstrates that his opinions in this case are
relevant to the issues regarding the construction of the MRI suite, quenching process, and cause of
Plaintiffs’ alleged damages. To the extent Plaintiffs question the content of Gilk’s report, Plaintiffs
will have an opportunity to explore these issues through cross-examination of Gilk and the
presentation of Plaintiffs’ retained expert in a similar field. As such, Plaintiffs’ motion to exclude
Gilk is DENIED.

136

R. Doc. 276 at 2.
R. Doc. 276-3 at 5.
138
Id. at 3-4.
139
R. Doc. 276-5 at 1-3.
140
R. Doc. 276 at 3.
141
Id. at 4 & 10-11.
142
Id. at 14-15.
137

25

10. Plaintiffs’ Motion to Strike Richard Rathe (R. Doc. 264)
Plaintiffs seek to exclude the testimony of Philips’ purported expert general contractor
Richard Rathe (“Rathe”).143 Plaintiffs do not challenge Rathe’s experience or qualifications to
testify in the fields of general contracting, project management, and construction of MRI suites.144
Instead, Plaintiffs argue that Rathe’s report contains opinions regarding construction details,
issues, and code violations that are not pertinent to the issues in this case, and other statements that
are “comments” rather than opinions.145
Citing Rathe’s CV, Philips argues that “Rathe is the only expert in this case with experience
and expertise” in matters concerning the construction of facilities that house MRI machines and
his testimony should be admitted.146 Rathe has a Bachelor of Science in Civil Engineering from
Vanderbilt University and has worked in the engineering and construction field since 1976.147 For
the last 30 years, Rathe has focused on construction projects in medical facilities including work
on MRI facilities.148 Philips further argues that Rathe’s opinions regarding the defects in the
construction of the MRI facility, and the origin of those defects, address central issues in the
case.149
Rathe’s education and experience qualify him to testify as an expert in the fields of general
contracting, project management, and construction of MRI suites.

Further, Rathe’s report

demonstrates that his opinions in this case are relevant to the issues regarding the construction of
the MRI suite and the cause of Plaintiffs’ alleged damages. To the extent Plaintiffs question the
content of Rathe’s report, Plaintiffs will have an opportunity to explore these issues through cross
143

R. Doc. 264.
R. Doc. 264-1 at 1. Rathe has over thirty years of experience in designing and building MRI suites and is
an approved “turnkey construction” vendor with GE, Philips, Siemens, and Toshiba. R. Doc. 274-3.
145
R. Doc. 264-1 at 1-3.
146
R. Doc. 274 at 2.
147
R. Doc. 274-2.
148
R. Doc. 274-1 at 4-10.
149
R. Doc. 274 at 3-4.
144

26

examination of Rathe and the presentation of Plaintiffs’ retained expert in structural engineering.
As such, Plaintiffs’ motion to exclude Rathe is DENIED.
11. Plaintiffs’ Motion to Strike Jeffrey Charlet (R. Doc. 265)
Plaintiffs seek to exclude the testimony of Philips’ purported expert in building code
application and enforcement, Jeffrey Charlet (“Charlet”).150 Plaintiffs argue that Charlet is not
qualified to testify as an expert in his designated field because: he does not hold any degrees in
engineering; he has not been involved in any building projects as a contractor, other than his own
home; he has not been involved in a project related to a facility that houses MRI equipment; he
has never drawn plans for commercial construction; he has no expertise in Louisiana State Fire
Marshal Codes or Regulations; and he has no expertise relevant to a helium vent pipe.151 Plaintiffs
also argue that Charlet’s opinions either are not relevant to the issues in this case or offer legal
conclusions.152
Philips argues that Charlet is qualified to testify as an expert in the field of building code
application and enforcement.153

Charlet is a certified International Code Council Building

Official, who is registered with the Louisiana Uniform Construction Code Council.154 He worked
as a code enforcement officer for thirty years in Jefferson Parish (where the facility is located),
including fifteen years as a plan review supervisor.155 Charlet drafted a portion of the Jefferson
Parish Building Code.156
Philips argues that Charlet’s testimony is relevant to the construction of the MRI suite and
Plaintiffs’ alleged lost profits.157 Specifically, Philips contends that Charlet’s testimony will

150

R. Doc. 265.
R. Doc. 265-1 at 1-2.
152
Id. at 2-7.
153
R. Doc. 275 at 1-2.
154
R. Doc. 275-1 at 1.
155
Id.
156
R. Doc. 275-2 at 3.
157
Id. at 3-4.
151

27

establish that the facility never met Jefferson Parish’s building code requirements, and as a result,
could not have operated “within the patient capacities that would be necessary to generate the
income Plaintiffs claim to have lost for the time period at issue.”158 Further, Philips argues that all
of Charlet’s opinions that Plaintiffs contend are not reliable have a basis in fact, and he should be
permitted to testify.159
Charlet’s experience qualifies him to testify as an expert in the field of building code
application and enforcement in Jefferson Parish, where Plaintiffs’ facility is located. Further,
Charlet’s report demonstrates that his opinions in this case are relevant to the issues regarding the
construction of the MRI suite and the cause of Plaintiffs’ alleged damages. To the extent Plaintiffs
question the content of Charlet’s report, Plaintiffs will have an opportunity to explore these issues
through cross-examination of Charlet and the presentation of countervailing testimony. As such,
Plaintiffs’ motion to exclude Charlet is DENIED.
C. Philips’ Motions to Exclude Untimely Expert Reports (R. Docs. 239 & 286)
1. Legal Standard
Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure provides that expert witnesses
who are “retained or specially employed to provide expert testimony in the case” must submit
expert reports that contain specified information. Fed. R. Civ. P. 26(a)(2)(B). A party must
produce expert reports “at the times and in the sequence that the court orders.” Fed. R. Civ. P.
26(a)(2)(D). The “basic purpose” of Rule 26 is “preventing prejudice and surprise.” Reed v. Iowa
Marine & Repair Corp., 16 F.3d 82, 85 (5th Cir. 1994).
Rule 37(c)(1) of the Federal Rules of Civil Procedure states that “[i]f a party fails to provide
information or identify a witness 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 trial, unless the failure

158
159

Id. at 4.
Id. at 4-7.

28

was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Further, this Court’s
scheduling order states that “[t]he Court will not permit any witness, expert or fact, to testify or
any exhibits to be used unless there has been compliance with this Order as it pertains to the witness
and/or exhibits, without an order to do so issued on motion for good cause shown.”160 In
determining whether a violation of Rule 26 is harmless or substantially justified, the Court
considers: “(1) the importance of the evidence; (2) the prejudice to the opposing party of including
the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the
explanation for the party’s failure to disclose.” Texas A&M Research Found. v. Magna Transp.,
Inc., 338 F.3d 394, 402 (5th Cir. 2003).
2. Philips’ Motion to Strike Bryan Bordeman (R. Doc. 239)
Philips seek to exclude the testimony of Plaintiffs’ purported expert in MRI RF shielding,
Bryan Bordeman (“Bordeman”).161 Philips argues that Bordeman’s testimony as to the contents
of a report dated February 12, 2018, should be excluded because Plaintiffs failed to timely produce
that report in accordance with Rule 26 of the Federal Rules of Civil Procedure.162 The scheduling
order in this case required Plaintiffs to produce to Philips all expert reports by October 4, 2018.
Plaintiffs produced Bordeman’s report on November 26, 2018.163

Plaintiffs did not file a

memorandum in opposition to Philips’ motion.
Plaintiffs did not timely produce Bordeman’s February 12, 2018 expert report to Philips
and have offered no explanation for their failure to comply with the scheduling order or Rule 26.
The timing and circumstances surrounding the tardy production of Bordeman’s report raise
concerns about gamesmanship and prejudice. Thus, Philip’s motion is GRANTED, and Bordeman
cannot testify as to any opinions contained in his February 12, 2018 report.

160

R. Doc. 95 at 2.
R. Doc. 239.
162
R. Doc. 239-1 at 1-2.
163
Id. at 2.
161

29

3. Philips’ Motion to Strike New Expert Reports Produced by Plaintiffs (R. Doc. 286)
Philips moves to strike two documents produced by Plaintiffs, a purchase agreement for
the MRI equipment and a drawing prepared by a land surveyor, arguing that they are untimely
expert reports.164 The scheduling order required Plaintiffs to produce expert reports by October 4,
2018, and these documents were produced on December 6, 2018.165
Plaintiffs have indicated that they will withdraw the purchase agreement and will not use
it at trial.166 Therefore, the motion is rendered moot as to the purchase agreement. Plaintiffs argue
that the measurements prepared by the surveyor are not an expert opinion, but merely
measurements, which are facts.167 Plaintiffs argue that they will be prejudiced if the measurements
are not admitted into evidence because Philips relied upon flawed measurements throughout the
relevant time.168

Plaintiffs agree to allow Philips to depose the surveyor, Gandolfo Kuhn

(“Kuhn”), any time before trial.169
Considering Plaintiffs’ representation that the measurements will not be introduced as an
expert opinion, but rather simply as facts, and their offer to allow Philips to depose Kuhn before
trial, Philips’ motion to strike the survey is DENIED. However, Kuhn may not be tendered as an
expert or give any opinions as to what his measurements may mean with respect to any issues in
the case.
D.

Philips’ Motion in Limine to Exclude Evidence Regarding Subsequent
Remedial Measures (R. Doc. 238)

Philips moves to exclude evidence that, after the incident at issue in this case, it changed
its specifications for the vibration pads from two layers to one layer.170 Philips argues that this

164

R. Doc. 286-1 at 2.
Id.
166
R. Doc. 322 at 2.
167
Id. at 1.
168
Id. at 3-9.
169
Id.at 10.
170
R. Doc. 238.
165

30

change constitutes a subsequent remedial measure and, as such, “any testimony, questioning, and
evidence regarding vibration pads should be excluded from trial in this case.”171
Plaintiffs argue that Philips’ changing the specification from two-layer vibration pads to
one-layer vibration pads is not a subsequent remedial measure because it has not been implemented
on Plaintiffs’ MRI equipment.172 Plaintiffs contend that their MRI equipment still has the twolayer pads, and as a result, the MRI equipment is still moving.173 Thus, Plaintiffs argue any
investigations or recommendations regarding the pads are not subsequent remedial measures.174
Rule 407 of the Federal Rules of Evidence provides:
When measures are taken that would have made an earlier injury or harm less likely
to occur, evidence of the subsequent measures is not admissible to prove:
•

negligence;

•

culpable conduct;

•

a defect in a product or its design; or

•

a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment
or – if disputed – proving ownership, control, or the feasibility of precautionary
measures.
The purpose of Rule 407 is the “social policy of encouraging people to take, or at least not
discouraging them from taking, steps in furtherance of added safety.” Fed. R. Evid. 407 advisory
committee note to 1972 proposed rules. “The rule also seeks to ensure that negligence is properly
determined according to what the defendant knew or should have known prior to the accident, not
what the defendant knew as a result of the accident.” Adams v. Chevron USA, Inc., 383 F. App’x
447, 452 (5th Cir. 2010).

171

R. Doc. 238-1 at 5.
R. Doc. 281 at 4.
173
Id.
174
Id.
172

31

The pad change was made by Philips after the incident involving the MRI equipment sold
to Plaintiffs in order to make the incident less likely to recur in Philips’ MRI equipment, not merely
to improve the product. As such, the field change order implemented a subsequent remedial
measure and did not constitute an investigation into the incident involving the MRI equipment
Plaintiffs purchased from Philips. In like circumstances courts in the Fifth Circuit have applied
Rule 407, including its policy to encourage post-accident steps in furtherance of added safety, to
exclude evidence of such steps to prove culpability. See, e.g., Cox Operating, L.L.C. v. Settoon
Towing, L.L.C., 2018 WL 3862072, at *1-2 (E.D. La. Aug. 13, 2018); Davzat v. Weeks Marine,
Inc., 2016 WL 3186900, at *2 (E.D. La. June 7, 2016). Nor can the issue of causation, as invoked
by Plaintiffs, be used to frustrate the purposes of Rule 407. See, e.g., Chesapeake La., L.P. v
Innovative Wellsite Sys., Inc., 2015 WL 339022, at *2-3 (W.D. La. Jan. 23, 2015) (cautioning
against admissibility of subsequent remedial measures when offered to rebut theory of causation,
calling such arguments “semantic manipulation”) (citing Hardy v. Chemtron Corp., 870 F.2d 1007,
1011 (5th Cir. 1989)). These principles would seem to weigh in favor of excluding the evidence
of the pad change, but the analysis of the issue does not end here.
In Brazos River Auth. v. GE Ionics, Inc., a case involving breach-of-contract and breachof-warranty claims, the Fifth Circuit noted that “a product can fail to perform as warranted without
necessarily creating an ‘injury or harm’ as contemplated by [Rule 407,” and even if “a ‘lemon’
could present a safety hazard, a party could forego a recovery for that safety-related ‘injury or
harm’ and merely seek to recover the benefit of its bargain; the safety-related claim could be
eliminated either voluntarily by a party narrowing its pleading, or involuntarily pursuant to rulings
by the trial court.” 469 F.3d 416, 428 (5th Cir. 2006). Here, Plaintiffs’ claims are limited to
breach-of-contract and warranty-like claims and do not include claims of negligence related to
safety hazards associated with the MRI equipment. Thus, as the Fifth Circuit observed in Brazos,

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the evidence at issue here does not go to the issue of negligence or culpability, but instead relates
to whether the product sold worked as represented or warranted. Consequently, the words and the
rationale of Rule 407 do not apply. Philips’ motion in limine is DENIED.
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Philips’ motion for summary judgment regarding consequential

damages waiver (R. Doc. 230) is DENIED WITHOUT PREJUDICE to Philips re-urging the
motion if the jury finds that there is a contract incorporating Philips’ standard “Terms and
Conditions of Sale.”
IT IS FURTHER ORDERED that Philips’ motion for summary judgment to dismiss
Plaintiffs’ claims regarding the MRI’s third-floor installation (R. Doc. 243) is DENIED.
IT IS FURTHER ORDERED that Philips’ motion for summary judgment on claims
regrading 5 gauss line and surgery suite (R. Doc. 245) is DENIED.
IT IS FURTHER ORDERED that Philips’ motion to strike Tianliang Gu (R. Doc. 231) is
DENIED.
IT IS FURTHER ORDERED that Philips’ motion to strike Thomas Read (R. Doc. 233) is
DENIED.
IT IS FURTHER ORDERED that Philips’ motion to strike William Dixon (R. Doc. 234)
is GRANTED as to the legal conclusion that Philips was negligent, and otherwise DENIED.
IT IS FURTHER ORDERED that Philips’ motion to strike Donald Marks (R. Doc. 235) is
GRANTED.
IT IS FURTHER ORDERED that Philips’ motion to strike John Theriot (R. Doc. 236) is
DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ motion to strike Jeff Englert (R. Doc. 261) is

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DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ motion to strike Allen Ohlmeyer (R. Doc.
262) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ motion to strike Tobias Gilk (R. Doc. 263) is
DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ motion to strike Richard Rathe (R. Doc. 264)
is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ motion to strike Jeffrey Charlet (R. Doc. 265)
is DENIED.
IT IS FURTHER ORDERED that Philips’ motion to strike Bryan Bordeman (R. Doc. 239)
is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ motion to strike Philips’ reply memoranda
(R. Doc. 299) is DENIED.
IT IS FURTHER ORDERED that Phillips’ motion to strike new expert reports produced
by Plaintiffs (R. Doc. 286) is DENIED as to the survey and DENIED as moot as to the purchase
agreement.
IT IS FURTHER ORDERED that Philips’ motion in limine to exclude evidence regarding
subsequent remedial measures (R. Doc. 238) is DENIED.
New Orleans, Louisiana, this 2nd day of January, 2019.

________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

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