McConathy et al v. Wal-Mart Louisiana L L C et al

Filing 54

MEMORANDUM RULING re 47 MOTION in Limine to Exclude Opinions Contained in Supplemental I M E Report of Wal-Mart's Expert, Dr David Googe filed by Eddie McConathy, Leona McConathy. Signed by Judge Terry A Doughty on 10/16/2018. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
LEONA MCCONATHY, ET AL.

CIVIL ACTION NO. 17-0622

VERSUS

JUDGE TERRY A. DOUGHTY

WAL-MART LOUISIANA, LLC, ET AL.

MAGISTRATE JUDGE HAYES

RULING
This is a merchants liability case in which Plaintiffs Leona and Eddie McConathy allege
that Mrs. McConathy was injured when she fell after tripping over a water hose at the Wal-Mart
store in Jonesboro, Louisiana. Plaintiffs brought suit against Defendants Wal-Mart Louisiana,
LLC, and Wal-Mart Stores, Inc. (“Wal-Mart” or “Defendants”).
Pending before the Court is Plaintiffs’ “Motion in Limine to Exclude Opinions in
Supplemental I.M.E. Report of Wal-Mart’s Expert, Dr. David Googe” (“Motion in Limine”)
[Doc. No. 47]. Defendants responded to the motion. [Doc. No. 50]. Plaintiffs filed a reply
memorandum. [Doc. No. 52].
For the following reasons, the motion is DENIED.
I.

PERTINENT FACTS AND PROCEDURAL HISTORY
On May 9, 2018, Defendants retained Dr. David Googe to conduct a records review for

Mrs. McConathy. Because of the voluminous medical records, Dr. Googe thought an
independent medical examination (“IME”) of Mrs. McConathy. Dr. Googe made this suggestion
to Defendants’ counsel.
Dr. Googe conducted a physical examination of Mrs. McConathy on July 13, 2018.
During the examination, Mrs. McConathy allegedly told Dr. Googe that had experienced

problems with her shoulder in the past, but that she was doing fine prior to the accident and “had
no history of left shoulder problems that predated this accident.” [Doc. No. 50, Exh. A].
Following his examination, on July 19, 2018, Dr. Googe issued an expert report, which
was provided to Plaintiffs’ counsel. He relied on her history and in the report, he opined:
With regard to causation, I do not think the fall caused the arthritis nor do I think
it caused the rotator cuff tear in her right shoulder. In addition, I suspect the neck
had pre-existing arthritis as did the left shoulder. The problem with this clinical
scenario is that subjectively she did not have many complaints related to her
shoulder, neck and or left shoulder prior to this accident. So, I feel like her fall
certainly contributed to her need for right shoulder, neck and left shoulder (x4)
surgeries.
[Do. No. 47, Exhibit A].
On August 9, 2018, Dr. Googe met with counsel for Defendants and reviewed the
medical records provided by Dr. Mays, an orthopedist at Willis Knighton. According to Dr.
Googe, he had Dr. Mays’ records in his possession prior to issuance of the report, but he had not
reviewed them because of the volume of her records.
After reviewing Dr. Mays’ records, however, on September 19, 2018, Dr. Googe issued a
supplemental report [Doc. No. 47, Exh. B]. In that report, he now opines:
1. The question at hand is whether or not those surgeries [neck and four shoulder]
were related to the fall.
2. As it turns out, Leona had complained of bilateral shoulder pain just 10 days before her
fall when she was seen by Dr. John Mays.
3. Being that she had complained about shoulders . . ., I don’t feel like the fall was the
reason for her surgery.

4. With regard to her neck, she had a floating fusion that was done in the past. It is my
opinion that she was going to eventually need an additional fusion . . . But, I would defer
to a spine expert on this topic.
5. I found Leona to be a delightful patient.
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[Doc. No. 47, Exh. B]. While Dr. Googe does not believe that Mrs. McConathy intended to
mislead him, he avers that the inaccurate medical history was the basis of his original report, and
his review of Dr. Mays’ records was the reason for the issuance of the supplemental report.
II.

LAW AND ANALYSIS
Under the provisions of the Federal Rules of Civil Procedure, parties are required to

disclose the identity of their expert witnesses and provide the experts’ reports within the
deadlines set in the Court’s scheduling order. See FED. R. CIV. P. 26(a)(2); FED. R. CIV. P.
26(a)(3)(B). Although an expert is allowed to supplement his report, “[a]ny additions or changes
to [the] information must be disclosed by the time the party's pretrial disclosures under Rule
26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2). “If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). To determine whether a party's
failure to disclose is harmless, courts look to four factors: (1) the explanation for the party's
failure to disclose; (2) the potential prejudice to the opposing party if the evidence is allowed; (3)
the availability of a continuance to cure such prejudice; and (4) the importance of the evidence.
CQ, Inc. v. TXU Mining Co., L.P., 565 F.3d 268, 280 (5th Cir. 2009)).
In this case, the Court finds that Defendants’ expert has provided an adequate explanation
for the failure to timely disclose, and this evidence is important to the defense. Further, to the
extent there might be any prejudice to Plaintiffs, the Court hereby grants leave of Court to
conduct a supplemental deposition of Dr. Googe. If requested, the Court will also grant a
continuance to prevent any prejudice to Plaintiffs.

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Finally, the Court finds no basis to exclude the supplemental report under Federal Rule of
Civil Procedure 35. Under Rule 35, a party may move the Court for an order appointing an
independent medical examiner to examine a party whose “physical condition . . . is in
controversy.” FED. R. CIV. P. 35(a). Additionally, under Rule 35(b)(6), the provisions of the rule
related to the examiner’s report “applies . . . to an examination made by the parties’ agreement,
unless the agreement states otherwise. This subdivision does not preclude obtaining an
examiner’s report or deposing an examiner under other rules.” (emphasis added). Where a
plaintiff, through counsel, voluntarily submits to a physical examination by defendant’s retained
expert physician, the physician remains a retained expert, pursuant to Federal Rule of Civil
Procedure 26(a)(2). See Seaman v. Seacor Marine, LLC, Civil Action No. 7-3354-JCZ-SS, 2008
WL 1862367 at *2 (E.D. La. April 23, 2008). Thus, the plaintiff is entitled to a copy of the
expert report under Rule 26. Nothing in Rule 35 prohibits a defendant from engaging in ex parte
communications with its own retained expert. Rather, it is plaintiff’s counsel who is so
prohibited. Id. at *3(“. . . when a defendant sends a plaintiff to a physician for an IME, the
physician is a retained expert and the only way for counsel for the plaintiff to obtain information
from the physician is through Rule 26(b)(4).”)
III.

CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion in Limine [Doc. No. 47] is DENIED.
MONROE, LOUISIANA, this 16th day of October, 2018.

TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

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