Rhinehart v. Scutt et al

Filing 316

OPINION and ORDER Denying Plaintiffs' 308 Motion for Sanctions; and Ordering the Parties to Mediate. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID L. RHINEHART and LEWIS
RHINEHART, Joint Personal
Representatives of the Estate of
KENNETH A. RHINEHART,
Deceased,

Case No. 2:11-cv-11254
HONORABLE STEPHEN J. MURPHY, III

Plaintiffs,
v.
DEBRA SCUTT, et al.,
Defendants.
/
OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR
SANCTIONS [308] AND ORDERING THE PARTIES TO MEDIATE
Trial in the case is quickly approaching, and Plaintiffs recently moved the Court to bar
the testimony of one of Defendants' witnesses, permit Plaintiffs to redepose one of the
Defendants, and to sanction Defendants. For the reasons stated below, the Court will deny
the motion and order the parties to mediate one last time.
BACKGROUND
The case arises out of the medical treatments that the late Kenneth Rhinehart did and
did not receive while incarcerated. Although now prosecuted by the executors of his estate,
Rhinehart initiated the case pro se prior to his death. The instant motion concerns an
affidavit sworn to and submitted to the Court in the early days of the litigation.
Rhinehart filed the complaint on March 29, 2011. He also filed two pro se motions for
temporary restraining orders (TROs) — along with other motions — before his current
counsel filed an appearance on July 27, 2011. Counsel then filed a third motion for a TRO
on August 17, 2011. ECF 79. In this third motion, Rhinehart asked the Court to enter an

injunction ordering Defendants1 to "schedule [Rhinehart] to be seen by a qualified liver
specialist/oncologist/heptatologist so that he can receive a qualified treatment plan to
prevent a more rapid onset of his advanced liver disease" and also order Defendants to
schedule Rhinehart "for an appointment to see a liver specialist[.]" Id. at PgID 905.
In their response to the motion, Defendants argued that Rhinehart failed to make the
showing necessary to justify entry of an injunction, and further explained that Rhinehart was
both "an unlikely candidate for a liver transplant," and that it was not "medically necessary"
to schedule Rhinehart to be seen by a "liver specialist/oncologist/hepatologist" because "a
qualified treatment plan" was already in place and his medical needs were being met. ECF
83, PgID 959. Defendants supplemented their response with an affidavit from Dr. Richard
Kosierowski, an oncologist who had been consulted in the care of Rhinehart. Kosierowski
stated that he did not believe Rhinehart needed a consultation with an outside oncologist
or liver specialist. ECF 89-1, PgID 1204.
Following the briefing, Magistrate Paul J. Komives issued a Report and
Recommendation, suggesting the Court deny the motion. The magistrate judge
emphasized that Rhinehart was receiving medical attention and had "at best, established
a difference of opinion with respect to [his] medical treatment." ECF 121, PgID 1691–92.
In explaining his conclusion, the magistrate judge mentioned that "[p]erhaps the most
persuasive piece of evidence is Dr. Kosierowski's affidavit." Id. at 1691. The Court adopted
the Report over Rhinehart's objections and denied the motion for a TRO. ECF 127.

1

At that time, there were many other defendants in the case, including the prison
warden, prison staff, and another doctor.
2

Rhinehart filed an interlocutory appeal of the Court's denial order, ECF 128, but the Court
of Appeals for the Sixth Circuit affirmed the Court's denial, ECF 135.
Four years later, Plaintiffs attack Kosierowski's affidavit. Plaintiffs recently deposed
Kosierowski and now claim that certain statements within the 2011 Affidavit "were not true
at the time the Affidavit was submitted, and that Dr. Kosierowski knew these statements
not to be true when he executed the Affidavit[.]" ECF 308, PgID 7296 (emphasis omitted).
According to Plaintiffs, Kosierowski, in writing the affidavit, erred in three ways:
(1) He misrepresented his relationship to Corizon,
(2) He misrepresented the basis for his conclusion and his familiarity with
Rhinehart's medical records, and
(3) He did not draft the 2011 Affidavit himself.
See id. at 7296–03. For relief, Plaintiffs ask the Court to (1) bar all testimony from
Kosierowski "except testimony elicited by Plaintiffs", (2) instruct the jury "regarding the
evidentiary effect of Defendants' knowing submission Kosierowski called as an adverse
witness and questioned before the jury" concerning the Affidavit of false evidence", (3)
allow Plaintiffs to redepose Defendant Edelman, and (4) award to Plaintiffs all the attorneys
fees and expenses related to the Affidavit.2 See id. at 7314–15.
DISCUSSION
I.

Whether Kosierowski should be permitted to testify as a non-retained expert
Rule 26 of the Federal Rules of Civil Procedure governs witness disclosures, while

Rule 37 establishes the consequences for failure to comply with the rules. A party intending
to introduce expert witness testimony at trial must disclose to the other parties the identity
2

The reimbursement sought is far reaching: Plaintiffs seek costs associated with the
instant motion, as well as the cost of deposing Kosierowski, and all of Plaintiffs' associated
fees and expenses from September 2011 (when the Affidavit was filed) to January 2013
(when the appeal was closed).
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of the witness, and if the witness is "retained or specially employed to provide expert
testimony in the case or one whose duties as the party's employee regularly involve giving
expert testimony," then the party offering the witness's testimony must accompany the
disclosure with a written report "prepared and signed by the witness" Fed. R. Civ. P.
26(a)(2)(A),(B). If a party fails to comply with this requirement, "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).
Plaintiffs argue that under Rule 26(a)(2)(B), Defendants were required to provide a
signed, written report from Kosierowski. They claim that at the time he signed the Affidavit,
he was employed by Corizon, and they further argue that his duties "regularly involve
providing expert testimony, since he admitted providing such testimony was a 'somewhat
routine' part of his job." ECF 308, PgID 7297–98 (quoting Kosierowski's deposition
testimony). Plaintiffs argue that, because Defendants' disclosures did not include a report
from Kosierowski, he may not be called as an expert witness at trial. Id. at 7313.
Kosierowski is not automatically a "retained expert" merely because he was (or is) an
employee of Corizon — even if part of his duties involve giving expert testimony. As the
Sixth Circuit has emphasized, "[a] treating physician . . . can be deposed or called to testify
at trial without any requirement for a written report." Fielden v. CSX Transp., Inc., 482 F.3d
866, 869 (6th Cir. 2007), as amended on denial of reh'g and reh'g en banc (July 2, 2007)
(quoting Fed. R. Civ. P. 26(a), cmt. 1993 Amendments, subdivision (a), para. (2)). This is
so even if the physician's job incidentally requires him to participate in litigation with some
frequency, because the purpose of the rule is to distinguish between experts who form their
opinions in anticipation of litigation and those who form opinions in the regular course of
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treatment. See Ulbrick v. UPR Prod., Inc., No. CIV. 08-13764, 2011 WL 500034, at *4 (E.D.
Mich. Feb. 8, 2011) (making the distinction and collecting cases).
Kosierowski testified that he was involved with Rhinehart's treatment in February
2010, more than a year before Rhinehart had even filed suit. See Kosierowski Dep., ECF
308-3, 19:6–21. He testified that he has prepared "three or four" affidavits a year and that
he does not get paid to prepare the affidavits. Id. at 52:5. In sum, Kosierowski is not the
"retained expert" whose testimony is governed under Rule 26(a)(2)(B) — he is a treating
physician who may be called upon to testify to discussions he had during Rhinehart's
treatment and the opinions he formed at that time. See Expert Disclosures, ECF 308-2,
PgID 7324. Accordingly, the Court will not bar his testimony at trial for failure to submit a
report.
II.

Whether Kosierowski satisfies the requirements of Rule 702
Federal Rule of Evidence 702 permits a witness to testify in the form of an opinion,

or give other helpful exposition, if he or she satisfies certain criteria of reliability and
specialized knowledge. The Rule entrusts the Court with a "gatekeeping" role by obligating
the Court to "ensure that any and all scientific testimony . . . is not only relevant, but
reliable." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). Still, "rejection of expert testimony is
the exception, rather than the rule," and courts generally "permit testimony based on
allegedly erroneous facts when there is some support for those facts in the record." In re
Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir. 2008).
Plaintiffs essentially challenge Kosierowski's testimony on two grounds. First, they
argue that the 2011 Affidavit is actually untruthful. See, e.g., Mot., ECF 308, PgID 7311
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(accusing Kosierowski of "signing his name to an Affidavit based on a version of the
claimed facts that he admitted was, in substantial part, simply not true."). Second, they
allege that it was improper for Kosierowski to sign an affidavit that was prepared by
counsel. Accordingly, they argue that Kosierowski fails to satisfy the requirements of Rule
702 and should not be permitted to testify.
The precise facts and statements are important here. In his affidavit, Dr. Kosierowski
stated:
I consult with Corizon Health Inc.'s Medical Director for Utilization Management
for the State of Michigan. In this position, I make recommendations to the
Medical Director, Adam Edelman, M.D., for the provision of medical care to
patient-inmates by Corizon employees and contractors at correctional facilities
maintained by the Michigan Department of Corrections (MDOC). These
recommendations are based on my professional judgment as a medical
oncologist, review of the specific medical history and condition of the patientinmate, MDOC policies, national guidelines and standards, and research of
medical literature concerning current appropriate treatment of the condition at
issue.
ECF 89-1, PgID 1203. He also stated, "I have been consulted in the medical decision
making process concerning Kenneth Rhinehart and am familiar with his medical history and
records." Id. In his 2017 deposition, Kosierowski was asked about his review of Rhinehart's
records:
Q. Okay. And at some point in time, did you become involved with Mr.
Rhinehart's treatment by reviewing some records and making some
recommendations to Dr. Edelman or with Dr. Edelman?
A. Again, Dr. Edelman and I discussed the management of the case. It was only
recently that, you know, it actually involved looking at records.
ECF 308-3, 15:20–16:1. Later in the deposition, Plaintiffs' counsel asked Kosierowski about
what he had reviewed prior to signing the affidavit:

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Q. Now, back in 2010 when you first were contacted by Adam Edelman
regarding this patient, you didn't see him, correct? You didn't actually see or visit
Mr. Rhinehart; is that true?
A. Correct.
Q. Did you have a TeleMed conference with him?
A. Not that I recall.
Q. And did you see any labs at that time?
A. Not that I recall.
Q. So your conversations and recommendations to the defendant in this case
Adam Edelman were based purely on your conversations over the phone and
not any medical documents you were provided. Is that a fair statement?
A. Yes.
Q. So you never were given these labs by Dr. Edelman at the time to review
and formulate a professional opinion; is that true?
A. Correct.
Id. at 57:3–21.
Counsel later pressed Kosierowski about the basis for his conclusions in the affidavit,
asking, "Doctor, don't you find it reckless signing an Affidavit under oath regarding your
opinion on the medical treatment for the deceased Kenneth Rhinehart without even looking
at a single medical record?" Id. at 74:17–20. Kosierowski answered, "I commented on
[Rhinehart's] oncologic care, which I found appropriate," and explained, "I relied on the
information provided to me by Dr. Edelman." Id. at 74:21–22, 75:9–10. Kosierowski also
stated, "I said I saw no evidence of cancer, no need to do an invasive procedure, and to
this date, I still see no evidence of cancer." Id. at 75:1–3.
Counsel also questioned Kosierowski about the scope of his conclusions in the
affidavit. In the affidavit, Kosierowski had concluded, "[b]ased upon my review of Mr.
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Rhinehart's medical records and knowledge as an oncologist, Mr. Rhinehart likely has a
benign process at this time. Therefore, he does not need a consultation with an outside
oncologist or liver specialist." ECF 89-1, PgID 1204. So counsel asked him:
Q. What qualifications do you have to make the determination that Mr.
Rhinehart didn't need to meet with a liver specialist especially given these
known complications that we just discussed?
A. The patient wasn't having complications. I was called to discuss the problems
he was having.
Q. And that was when the scope of whether or not he had cancer, correct?
A. Correct.
Q. So you weren't brought in to discuss whether or not these known and serious
complications of his cirrhosis required treatment by a liver specialist, were you?
A. No.
Q. And then why would you say that in your Affidavit, Doctor?
A. The time for treatment of liver disease had passed. He has cirrhosis. Once
you have cirrhosis, it's fairly straightforward what to do.
Kosierowski Dep., ECF 308-3, 61:7–25. And when pressed to confirm that he is "not
qualified to give opinions or testimony regarding liver disease outside of the scope of
cancer," Kosierowski demurred: "I think being a correctional care physician, the care of
patients with advanced liver disease is very much within my scope of practice." Id. at
57:24–58:5.
After reviewing the entirety of the deposition, the Court finds no grounds to conclude,
as Plaintiffs do, that Kosierowski "admitted" that substantial parts of his affidavit were
"simply not true." Mot., ECF 308, PgID 7311. Kosierowski swore in his affidavit that he
based his conclusions, in part, upon "review of the specific medical history and condition
of" Rhinehart, and that he was "familiar with [Rhinehart's] medical history and records."
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ECF 89-1, PgID 1203. As it turns out, he was made familiar with the records, not by reading
them, but instead by conferring by telephone with Rhinehart's doctor. Those facts do not
render the statements in the affidavit false. They simply mean that one doctor (Edelman)
conveyed to a second doctor (Kosierowski) the relevant particulars of a patient (Rhinehart).
With the information in hand, the second doctor applied his medical training to the facts at
his disposal and reached a medical conclusion. Plaintiffs may challenge those conclusions
as wrong, and a jury may agree. But the Court is currently tasked with evaluating
Kosierowski's methods, not his conclusions. And Plaintiffs have not shown that those
methods fail to pass muster under Rule 702.
The only argument remaining is that it was improper for counsel to draft the affidavit.
Plaintiffs direct the Court to the reasoning of another judge in this district, who noted,
"[d]etermining whether counsel crosses the line separating permissible assistance from
improper participation in the expert's report writing calls for a fact-specific inquiry. The key
question is whether counsel's participation so exceeds the bounds of legitimate assistance
as to negate the possibility that the expert actually prepared his own report." Numatics, Inc.
v. Balluff, Inc., 66 F. Supp. 3d 934, 942 (E.D. Mich. 2014) (quotation marks and internal
citations omitted).
In Numatics, the court addressed the report of a retained expert, not a treating
physician. Specifically, the court evaluated the propriety of counsel ghostwriting a report
pursuant to Rule 26(a)(2)(B), which must be "prepared and signed by the witness." But
here, the Affidavit was no such report, and as noted, Kosierowski is not required to submit
a report. Thus, the initial drafting of the Affidavit neither runs afoul of the rules nor impugns
its reliability. Moreover, Kosierowski explained in his deposition why and how he arrived at
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the conclusions contained in the Affidavit and reconfirmed those conclusions. Cf. Syngenta
Crop Prot., LLC v. Willowood, LLC, No. 1:15-CV-274, 2017 WL 1133378, at *6 (M.D.N.C.
Mar. 24, 2017) (distinguishing the expert in Numatics from a witness who, in his deposition,
was "responsive to counsel's questions and demonstrated a firm understanding of his
report"). Kosierowski is not a retained expert and there is nothing in the record to suggest
that he was pressured to arrive at the conclusions he did. The Court will not preclude his
expert testimony.
II.

Mediation
In denying Plaintiffs' instant motion, the Court has resolved all expert testimony

disputes except for Defendants' renewed Daubert motion. The trial date is next month, and
at the last hearing, both parties expressed their willingness to mediate one last time. The
filing of motions seeking to preclude the admission of evidence by party opponents along
with efforts by the lawyers to adjourn this six-year-old case evince that the parties are
certainly not desirous of having a jury impose a winner-take-all outcome. As the Court has
stated before, the stakes in the case are high, the issues and testimony are complex, and
neither party should feel confident in a successful jury trial verdict. The Court will therefore
order the parties to mediate with attorney Dennis Clark, of the Clark Law Firm, PLLC,
pursuant to Local Rule 16.4.
ORDER
WHEREFORE, it is hereby ORDERED that Plaintiffs' motion for sanctions [308] is
DENIED.
IT IS FURTHER ORDERED that the parties shall engage in mediation and settlement
discussions with Dennis Clark no later than Friday, May 12, 2017. Upon receipt of this
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Order, the parties shall contact Dennis Clark at [phone] or [e-mail].
Each party is responsible for paying one half of Dennis Clark's fee, subject to later
reappraisal by the Court if necessary.
Dennis Clark shall NOTIFY the Court within seven days of completion of mediation
stating only the "date of completion, who participated, whether settlement was reached,
and whether further ADR proceedings are contemplated." E.D. Mich. L.R. 16.4(e)(6). If a
settlement is reached, the parties shall NOTIFY the Court immediately upon completion of
mediation and SUBMIT a proposed order of dismissal within 21 days. Id. at 16.4(e)(7). If
a settlement is not reached, the parties shall NOTIFY the Court within seven days of the
completion of mediation.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: April 19, 2017
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on April 19, 2017, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

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