Lindsay v. Houseworth

Filing 76

ORDER denying 36 Motion to Exclude Hanna M. Mitias, M.D. Signed by Magistrate Judge Roy Percy on 10/4/17. (cs)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
SUZANNE LINDSAY
V.

PLAINTIFF
CIVIL ACTION NO. 3:16CV33-NBB-RP

DR. STEPHEN W. HOUSEWORTH, M.D.

DEFENDANT

ORDER DENYING MOTION TO EXCLUDE HANNA M. MITIAS, M.D.
Defendant Stephen Houseworth, M.D. (“Defendant”) has moved to exclude Dr. Hanna
M. Mitias as an expert witness in this case under Federal Rule of Civil Procedure 37. Docket 36.
Defendant argues that Plaintiff Suzanne Lindsay’s failure to comply with Federal Rule of Civil
Procedure 26(a)(2)(B) when disclosing Dr. Mitias should result in Dr. Mitias being excluded
from offering expert testimony in this matter. Id.
On January 3, 2017, Plaintiff served her “Disclosure of Expert Testimony” under Federal
Rule of Civil Procedure 26(a)(2), designating Dr. Mitias as an “unretained expert witness who
may testify to opinions within the realm of his expertise.” Docket 37-1. Defendant argues that
Plaintiff’s disclosure of Dr. Mitias under Rule 26(a)(2)(C) is “deficient and improper” because
Dr. Mitias plans to offer expert opinions not formed during his care and treatment of Plaintiff –
specifically opinions regarding standard of care related to Dr. Houseworth’s treatment. Docket
37 at 3. Defendant maintains that Dr. Mitias’ opinions regarding Dr. Houseworth’s treatment are
subject to the reporting requirement of Rule 26(a)(2)(B), and Plaintiff’s failure to designate Dr.
Mitias under this provision should preclude his ability to testify in this matter. Id. at 7-8.
Plaintiff counters that Dr. Mitias was not retained or specially employed to provide expert
testimony in this case and, therefore, is “exempt from the Rule 26(a)(2)(B) report requirement.”
Docket 38 at 2. Alternatively, Plaintiff argues that her disclosure satisfies Rule 26(a)(2)(B)’s

requirements including “1) a complete statement of all opinions the witness will express and the
basis and reasons for them […]; 2) the facts and data considered by the witness in forming these
opinions […]; 3) any exhibits that will be used to summarize or support these opinions […]; 4)
Dr. Mitias’ education and other qualifications enabling him to offer his opinions in this cause
[…]; 5) a listing of the other cases in which, during the previous 4 years, Dr. Mitias has testified
as an expert at trial or by deposition […]; and 6) a statement as to his compensation to be paid
for the study and testimony in the case.” Id. at 5-6. For these reasons, Plaintiff maintains that
Defendant will not be prejudiced by Dr. Mitias’ testimony. Id. at 6.
Federal Rule of Civil Procedure 26(a)(2)(A)’s designation requirement applies to
all testifying experts. Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 882
(5th Cir. 2004). Rule 26(a)(2)(B)’s report requirement specifically applies to expert
witnesses. Id. “A treating physician may testify as a non-retained expert witness—and
therefore need not provide an expert report…” Walker v. Target Corp., 2017 WL
2903253, at *1 (S.D. Miss. July 6, 2017) (quoting Kim v. Time Ins. Co., 267 F.R.D. 499,
502 (S.D. Tex. 2008). However, if an expert report is not provided, the treating
physician’s testimony is “confined to facts disclosed during care and treatment of the
patient including his diagnosis, the causation of a plaintiff's injuries, and the patient's
prognosis, as long as the doctor formed those opinions based on his personal knowledge
and observations obtained during the course of care and treatment.” Id. (quoting Barnett
v. Deere & Co., 2016 WL 4735312, at *1 (S.D. Miss. Sept. 11, 2016). “Where
a treating physician has prepared his opinions in anticipation of litigation or relies on
sources other than those utilized in treatment, courts have found that

the treating physician acts more like a retained expert and must comply with Rule
26(a)(2)(B).” Id. at 502.
In support of Dr. Mitias’ classification as a non-retained expert under Rule
26(a)(2)(C), Plaintiff points out that Dr. Houseworth performed Plaintiff’s surgery while
on the staff of Dr. Mitias’ clinic on one of Dr. Mitias’ long-standing patients whose
medical history and complaints were well-known to Dr. Mitias. Docket 38 at 4. Plaintiff
points to Dr. Mitias’ “personal knowledge, independent of this litigation” regarding Dr.
Houseworth’s treatment. Id.
However, as Defendant argues, the Court finds that Dr. Mitias’ opinions regarding
the standard of care related to Dr. Houseworth’s treatment exceed the scope of what Dr.
Mitias “learned through actual treatment and from the plaintiff’s records up to and
including that treatment.” Kim v. Time Ins. Co., 267 F.R.D. 499, 503 (S.D. Tex. 2008).
Despite having “a direct interest in remaining informed as to the treatment administered
by … Dr. Houseworth,” Dr. Mitias’ opinions go beyond his own personal treatment of
Plaintiff. Docket 38 at 4. Even though he may not be compensated monetarily for his
testimony in this case so as to be considered “retained,” because Dr. Mitias’s expected
testimony goes beyond matters pertaining to his own treatment of Plaintiff and extends to
the standard of care and its alleged breach by another physician based upon facts outside
Dr. Mitias’s personal knowledge, the Court considers Dr. Mitias to be “specially
employed” to provide expert testimony. As such Rule 26(a)(2)(B) required the
submission of a written report prepared and signed by Dr. Mitias. Having determined
there was a discovery violation, the court turns to whether Dr. Mitias’s testimony beyond
matters pertaining to his own treatment of Plaintiff should be excluded as a result.

“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). According to the Advisory Committee Note to Rule 37,
this sanction provides “a strong inducement for disclosure of material that the disclosing
party would expect to use as evidence, whether at a trial, at a hearing, or on a motion,” by
the deadline. Specifically, the purpose of Rule 26(a)(2) is to “eliminate unfair surprise to
the opposing party.” Hill v. Koppers Indus., 2009 WL 3246630, at *2 (N.D. Miss. Sept.
30, 2009) (citing Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160,
167 (D.C. Cir. 2007)).
Where a party has failed to properly and timely designate an expert witness, the
Court evaluates four factors to determine whether to exclude the testimony. Hamburger
v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004). The Court considers
(1) the explanation for the failure to identify the witness; (2) the importance of the
testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a
continuance to cure such prejudice. Id. (citing Geiserman v. MacDonald, 893 F.2d 787,
791 (5th Cir.1990)).
In support of the first factor, Defendant states that “Plaintiff has no satisfactory
explanation for her failure to properly disclose Dr. Mitias.” Docket 37 at 8. However, Plaintiff
explains at length her reasoning for her belief that Dr. Mitias was exempt from Rule
26(a)(2)(B)’s report requirement and further explains her decision to provide “an expansive and
detailed disclosure” that comports with Rule 26(a)(2)(B). Docket 38 at 5. The Court finds that
Plaintiff’s explanation weights in favor of denying Defendant’s motion to exclude Dr. Mitias.

Similarly, the Court finds that Plaintiff has sufficiently demonstrated the importance of Dr.
Mitias’ testimony regarding not only his own treatment of Plaintiff but also the standard of care
employed by Defendant and the alleged breach thereof.
As to the third factor, the Court finds that Defendant is not significantly prejudiced by
Plaintiff’s failure to provide a report under Rule 26(a)(2)(B). As noted above, Plaintiff’s
disclosure was expansive and detailed, providing Defendant with “the essential reporting
requirements under Rule 26(a)(2)(B).” Docket 38 at 5. Additionally, the Affidavit of Dr. Hanna
M. Mitias, M.D. (Docket 50-1), signed under oath by Dr. Mitias and submitted in support of
Plaintiff’s response to Defendant’s motion for summary judgment, mirrors Plaintiff’s Disclosure
of Expert Testimony (Docket 37-1).
The Court is unconvinced that “Dr. Houseworth is unaware of the basis or scope of Dr.
Mitias’ testimony” or “knows nothing of Dr. Mitias’ qualifications and publications he has
authored in the previous ten years,” the “cases in the previous four years in which he has testified
as an expert at trial or deposition,” or “the compensation [he] is being paid … to testify … in this
matter.” Docket 37 at 9. Although filed subsequent to the instant motion, Dr. Mitias’ sworn
affidavit speaks to each of these issues, as does Plaintiff’s previous Disclosure of Expert
Testimony. Defendant cannot show that he is unfairly surprised by the nature and scope of Dr.
Mitias’ anticipated testimony. Finally, as to the possibility of a continuance, the parties informed
the undersigned that Defendant will depose Dr. Mitias in advance of trial. The Court finds that a
continuance is not necessary.
The Court finds that on the whole, the Hamburger factors weigh in favor of allowing Dr.
Mitias to testify. For the reasons discussed above, Dr. Stephen W. Houseworth’s Motion to
Exclude Hanna M. Mitias, M.D. is DENIED. The Motion to Exclude Hanna M. Mitias will be

removed from the list of pending motions contained in the Pretrial Order. Additionally, the first
contested issue of law, “whether Dr. Mitias was a properly disclosed expert and should be
permitted to offer standard of care opinions,” will be removed from the Pretrial Order.
SO ORDERED, this the 4th day of October, 2017.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE