Hodges v. Corizon et al

Filing 76

ORDER granting 60 Motion to Preclude Expert Testimony. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHAWN HODGES,
Case No. 14-11837
Plaintiff,
Honorable John Corbett O’Meara
v.
CORIZON HEALTH, INC., et al.,
Defendants.
/
ORDER GRANTING DEFENDANTS'
MOTION TO PRECLUDE EXPERT TESTIMONY
This matter came before the court on defendants Squier, Buskirk and Berhane's
July 20, 2016 Motion to Preclude Plaintiff from Eliciting Expert Testimony from Any
Witnesses at Trial. Plaintiff Shawn Hodges filed a response August 10, 2016; and
Defendants filed a reply August 17, 2016. Oral argument was heard February 2, 2017.
BACKGROUND FACTS
Following motions to dismiss and for summary judgment, the only remaining
claim in this suit against the defendant medical personnel is for deliberate indifference
to serious medical needs. Plaintiff Hodges was diagnosed with a malignant tumor on
his wrist. The cancer spread, and Plaintiff underwent amputation of his arm below the
elbow. Plaintiff alleges that Defendants unreasonably delayed his referral for cancer
treatment during a two-month period of time, thereby causing the need for the
amputation.

LAW AND ANALYSIS
Pursuant to Rules 26(a)(2)(A-C) of the Federal Rules of Civil Procedure, a party
must disclose, in writing, the identity of any witness it may use at trial to present
evidence under Rules 702, 703 or 705 of the Federal Rules of Evidence. “If the
witness is not required to provide a written report, this disclosure must state: (i) the
subject matter on which the witness is expected to present evidence under Federal
Rules of Evidence 702, 702, or 705; and (ii) a summary of the facts and opinions to
which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).
“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). When a party fails to serve expert
disclosures and reports, that party is prohibited from calling any expert witnesses to
support his claims. See Fed. R. Civ. P. 37(c)(1); Sexton v. Uniroyal, 62 F3d. Appx.
615, 616 (6th Cir. 2003). “District courts have broad discretion to exclude untimely
disclosed expert-witness testimony.” Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir.
2000).
Plaintiff Hodges has the burden of proof to show that Defendants’ actions or
inactions proximately caused him injury by not treating his cancer sooner. See
Santiago v. Ringle, 734 F.3d 585 593 (6th Cir. 2013). To support his proximate cause
argument, Plaintiff must offer expert testimony or other verifying medical evidence
to show that his cancer spread between August and October 2011 and that he could

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have avoided amputation if his cancer treatment had commenced sooner. Napier v.
Madison County, 238 F.3d 739 (6th Cir. 2001). However, plaintiff Hodges failed to
serve any expert disclosures or reports by the court’s deadline. Therefore, pursuant
to Rule 37(c)(1), he is prohibited from eliciting expert testimony from any witness at
trial to support his claims.
ORDER
It is hereby ORDERED that Defendants' July 20, 2016 motion to preclude
Plaintiff from eliciting expert testimony at trial is GRANTED.
s/John Corbett O'Meara
United States District Judge
Date: February 16, 2017

I hereby certify that a copy of the foregoing document was served upon counsel
of record on this date, February 16, 2017, using the ECF system.
s/William Barkholz
Case Manager

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