United States of America et al v. The Gardens Pharmacy, LLC et al

Filing 102

ORDER granting Defendant Dr. Brian Tsang's 89 Motion to Strike 88 Notice of Service of Designation of Experts; denying Relator Estate of Robyn Turner's 93 MOTION to Extend Expert Disclosure Deadline. Signed by Magistrate Judge Robert H Walker on 5/24/22 (TS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
UNITED STATES OF AMERICA, ex rel.
ESTATE OF ROBYN TURNER
v.

PLAINTIFFS
Civil No. 1:18-cv-338-HSO-RHWR

THE GARDENS PHARMACY, LLC,
DR. BRIAN TSANG, and ALBERT
TSANG

DEFENDANTS

ORDER GRANTING DEFENDANT DR. BRIAN TSANG’S [89] MOTION TO
STRIKE PLAINTIFF’S NOTICE OF EXPERT DESIGNATIONS AND
DENYING RELATOR THE ESTATE OF ROBYN TURNER’S [93] MOTION
TO EXTEND EXPERT DISCLOSURE DEADLINE
BEFORE THE COURT is the [89] Motion to Strike [88] Notice of Service of
Designation of Experts filed by Defendant Dr. Brian Tsang. Defendant Albert Tsang
[91] Joined the Motion. Relator the Estate of Robyn Turner has filed a [92] Response,
and Defendants a [97] Reply. Also before the Court is Relator the Estate of Robyn
Turner’s [93] Motion to Extend Expert Disclosure Deadline. Defendant Albert Tsang
has filed a [95] Response, which Defendant Dr. Brian Tsang has [98] Joined. For the
reasons below, the Court will grant the [89] Motion to Strike and deny the [93] Motion
to Extend Expert Disclosure Deadline.
I. FACTS AND PROCEDURAL BACKGROUND
Relator the Estate of Robyn Turner (“Relator”) brought this qui tam action under
the False Claims Act (“FCA”), 31 U.S.C. § 3729, et seq., alleging that Defendant The
Gardens Pharmacy, LLC, violated the FCA, the Anti-Kickback Statute, and the Stark
Law, by paying commissions to sales agents for referrals for prescriptions paid for by

Medicare and TRICARE. Relator further alleged that the familial relationship
between a sales agent and a doctor violated the Stark Law. Compl. [1] at 2-8. The
Government elected to decline intervention. Not. [8] at 1.
On May 22, 2020, the Court stayed and administratively closed this case pending
resolution of a federal criminal investigation into Defendants Dr. Brian Tsang and
Albert Tsang (collectively “Defendants”). Order [39] at 1; Order [40]. On June 14,
2021, the Court lifted the stay, Order [50], and one month later reopened the case,
Text Only Order July 14, 2021.
On September 27, 2021, the Court entered a Case Management Order that
required Relator to designate her expert witnesses by April 6, 2022. Case
Management Order [6] at 4. On this date, Relator designated Stephanie Halphen
(“Halphen”), a managing partner of Halphen Forensic Accounting, as her expert
witness. Not. of Service of Designation of Experts [88] at 1. Relator did not provide a
written report but stated that she would provide one through supplementation once
it was prepared. Id. Despite this representation, Relator has not submitted a signed,
written report.
Defendants, therefore, moved to strike Relator’s [88] Notice of Service of
Designation of Experts for failure to comply with Federal Rule of Civil Procedure 26.
Mot. to Strike [89] at 1; Joinder in Doc. [91]. In response, Relator moved to extend
the expert disclosure deadlines in this case. Mot. to Extend Expert Disclosure
Deadline [93] at 1.

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II. DISCUSSION
A.

Defendants’ Motion to Strike

1.

Relevant Legal Authority
Federal Rule of Civil Procedure Rule 26(a)(2)(D) requires expert disclosures to

be made “at the times and in the sequence that the court orders.” Fed. R. Civ. P.
26(a)(2)(D). This Court's Local Rules require a party to make a “full and complete
disclosure ... no later than the time specified in the case management order....” L.U.
Civ. R. 26(a)(2). The Local Rules further provide that “[a]n attempt to designate an
expert without providing full disclosure information as required by this rule will not
be considered a timely expert designation and may be stricken upon proper motion or
sua sponte by the court.” L. U. Civ. R. (26)(a)(2)(A).
Parties must submit a written report from every expert witness who the party
retains or specially employs to provide expert testimony. Fed. R. Civ. P. 26(a)(2)(B).
This report must contain the expert's opinions, the reasons for these opinions, the
information the experts considered in formulating these opinions, and any exhibits
the expert will use to support their report. Id. Parties need not submit a written
report for experts who are not specifically retained or employed to provide expert
testimony, but who still qualify as experts under Rule 702. Fed. R. Civ. P. 26(a)(2)(C).
For these experts, a party must only disclose the subject matter about which the
witness will testify and a summary of the facts and opinions to which the expert will
testify. Id.

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Federal Rule of Civil Procedure 37(c)(1) states: “If a party fails to provide
information or identify a witness as required by Rule 26(a) or (c), 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 was substantially justified or is harmless.” Fed.
R. Civ. P. 37(c)(1). Similarly, the Local Rules provide that “[a]bsent a finding of just
cause, failure to make full expert disclosures by the expert designation deadline is
grounds for prohibiting introduction of that evidence at trial.” L. U. Civ. R. 26(a)(2).
2.

Analysis

i.

Adequacy of Expert Designation
Defendants ask this Court to strike [88] Relator’s Notice of Service of

Designation of Experts because Relator failed to provide the necessary expert report
and opinions under Rule 26(a)(2)(B), and Relator’s deadline for doing so has passed.
Mot. to Strike [89] at 1. Relator admits that her expert designation is insufficient and
states that she is still waiting on the necessary claims data from the Defense Health
Agency (“DHA”) and Centers for Medicare and Medicaid Services (“CMS”) so that her
expert can provide a written report. Mem. in Opp’n. to Mot. to Strike [92] at 1.
Upon review, the Court agrees that Relator’s expert designation fails to meet
Rule 26’s disclosure requirements because she has not submitted a signed, written
expert report, nor has she provided a sufficient summary of the facts and opinions to
which Halphen will testify. Therefore, Relator’s [88] Notice of Service of Designation
of Experts is subject to being stricken for failure to comply with Federal Rule
26(a)(2)(B) and Local Rule 26(a)(2)(D).

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ii.

Remedy for Inadequate Designation
When a party fails to follow the rules regarding expert designations, the Court

must determine the appropriate remedy. In doing so, the Court must consider four
factors: (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. Hamburger v. State Farm Mut.
Auto. Ins. Co., 361 F.3d 875, 882-883 (5th Cir. 2004). The Court address each in turn.
(a)

Explanation for Failure to Properly Designate
Relator explains that she has not provided an expert report because she is still

waiting on the necessary claims data. Mem. in Opp. [92] at 1. However, Relator
asserts that she “will supplement these designations pursuant to FRCP 26(e)(2),
including delivery of a written report, upon receipt and analysis of the claims data . .
. .” Not. [88] at 1. Defendants respond that Relator’s explanation is insufficient
because the burden is on her to timely subpoena necessary documents and because
she was aware of the potential inability to comply with the deadline but declined to
seek a timely extension. Mem. in Opp’n. to Mot. to Extend Expert Disclosure Deadline
[96] at 2-4. 1
While the Court is sympathetic to potential difficulties in obtaining information
from governmental agencies, it cannot ignore that Relator was admittedly aware of
the conflict those difficulties created with her then-impending expert designation
deadline. Mem. in Supp. of Mot. to Extend Expert Disclosure Deadline [94] at 2. If
Defendants’ [97] Reply in Support of Motion to Strike incorporates the arguments made in their
[96] Memorandum in Opposition to Relator’s Motion to Extend Expert Disclosure Deadlines.
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Relator could not provide the expert report by the expert designation deadline, the
proper response was to ask the Court for more time. Instead, Relator filed a
knowingly deficient expert designation.
Additionally, Relator’s statement of her intent to provide the expert report upon
receipt of the necessary information “is inadequate and plainly does not satisfy the
requirements of Rule 26.” 2 Wiley v. Wabtec Manufacturing Solutions, LLC, Civ. No.
4:20-cv-345, 2021 WL 6201838, at *2 (E.D. Tx. Dec. 6, 2021). As the Fifth Circuit has
stated, initial expert disclosures “are not intended to provide an extension of the
deadline by which a party must deliver the lion's share of its expert
information.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Co.,73 F.3d 546, 571
(5th Cir. 1996). Yet, Relator attempts to use her initial expert disclosure to do exactly
that. See Not. [88] at 1. The Court also notes that attempting to designate an expert
witness in this manner is clearly at odds with the Local Rules requirements that
parties make a “full and complete disclosure . . . no later than the time specified in
the case management order....” L. U. Civ. R. 26(a)(2). For those reasons, this factor
favors striking the expert designation.
(b)

Importance of Expert Testimony

The Court also notes the impermissibility of using supplementation to “fix” problems in initial
expert designations or reports. See Buxton v. Lil’ Drug Store Products, Inc., Civ No. 2:02-cv-178, 2007
WL 2254492, at *5 (S.D. Miss. Aug. 1, 2007) (citing Reliance Ins. Co. v. Louisiana Land &
Exploration Co., 110 F.3d 253, 258 (5th Cir. 1997) (affirming the district court's refusal to allow late
supplementation of expert reports and holding: “District judges have the power to control their
dockets by refusing to give ineffective litigants a second chance to develop their case.”); Cleave v.
Renal Care Grp., Inc., Civ No. 2:04-cv-16, 2005 WL 1629750, at * 1 (N.D. Miss. July 11, 2005) (“A
new expert affidavit which is submitted to rebut a summary judgment motion should be stricken if
the new opinion is different from the earlier Rule 26 report.”).
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Relator argues that Halphen’s testimony regarding the “value of false claims
submitted to and reimbursed by Medicare and TRICARE would be useful to the Court
and the parties.” Mem. in Supp. [94] at 2 (citation omitted). Relator further argues
that:
Pharmacy claims data can be confusing, and the pricing of compound
pharmacy claims may be even more confusing. An accountant is wellpositioned to identify and explain the amounts paid by DHA and CMS
to The Gardens in response to false claims. Further, claims data, even
when de-identified and covered by a protective order, involves
inherently sensitive health data. Expert testimony, subject to crossexamination, permits a focus of the evidence on the elements important
to a calculation of damages instead of the otherwise necessary focus on
authentication of the data, which poses challenges to maintaining the
confidentiality of the data.
Id. Defendants respond that Halphen’s testimony regarding the value of the alleged
false claims “would amount to the opinion of a human calculator.” Mem. in Supp. of
Mot. to Strike [90] at 4.
The Court cannot state with certainty the importance of Halphen’s testimony,
partly due to the lack of proper designation. However, other courts in this district
have indicated that an expert witness’s testimony regarding financial data may be
considered important in certain circumstances. See Mahli, LLC v. Admiral Ins. Co.,
Civ. No. 1:14-cv-175, 2015 WL 4915701, at *4 (S.D. Miss. Aug. 18, 2015) (citing cases).
Even if the importance of Halphen’s proposed testimony weighed against striking her
designation, the importance of proposed testimony cannot “singularly override the
enforcement of local rules and scheduling orders.” Geiserman v. MacDonald, 893 F.2d
787, 792 (5th Cir. 1990).
(c)

Potential Prejudice to Defendants
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Defendants argue that Relator’s failure to sufficiently disclose her expert
witness prejudices them because they will have to potentially designate expert
witnesses to rebut the unknown testimony of Relator’s expert witness. Mem. in Supp.
[90] at 5. Defendants also argue that they will be prejudiced by “(1) increased
expenses and (2) additional time extensions required to determine if expert testimony
is needed to adequately defend the case, specifically the unknown damages
component.” Mem. in Opp’n. [96] at 5.
The Court agrees that Relator’s lack of information and failure to meet the
Court's deadline prejudices Defendants. Defendants’ expert designation deadline has
now passed, and Relator has still not provided an expert report or a sufficient
summary of the facts and opinions she expects Halphen to testify to. Therefore,
Defendants were deprived of the opportunity to timely file rebuttal opinions, facts,
and data. This factor favors striking the expert designation.
(d)

Availability of Continuance
Although a continuance may ameliorate some potential prejudice to Defendants,

as discussed below, see infra Section II.B.2.ii, any extensions in this matter will
almost certainly necessitate moving the trial date. At some point, the litigation, in
this case, has to end, and further delays attributable to the failure to comply with the
Court's scheduling order and make required expert disclosures unnecessarily delay
the resolution of this matter. Additionally, when other factors support striking an
expert designation, as they do in this case, the Court is not required to continue a
trial. Hamburger, 361 F.3d at 883-84. “Otherwise, the failure to satisfy the rules

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would never result in exclusion, but only in a continuance. Because of a trial court's
need to control its docket, a party's violation of the court's scheduling order should
not routinely justify a continuance.” Id. at 884.
Based on the holding in Hamburger and the facts and circumstances of this case,
the Court finds a continuance is not warranted. See S & W Enters., LLC v. Southtrust
Bank of Ala., NA, 315 F.3d 533, 537 (5th Cir. 2003) (holding the district court’s
exercise of its “sound discretion not to grant a continuance” when doing so would
unnecessarily delay the trial” was not an abuse of discretion). Therefore, this factor
favors striking the expert designation.
iii.

Conclusion
In this case, Relator designated an expert witness without providing a full

disclosure of information; therefore, her Notice of Service of Designation of Experts
is subject to being stricken under Local Rule 26(a)(2)(A). Additionally, because three
of the four Hamburger factors favor striking the expert designation, the Court agrees
that this is the appropriate sanction.
B.

Relator’s Motion to Extend Expert Disclosure Deadline

1.

Relevant Legal Authority
When a deadline expires without a motion for additional time, the more stringent

standard of Federal Rule of Civil Procedure 6(b)(1)(B) applies. This Rule provides that
“when an act may or must be done within a specified time, the court may, for good
cause, extend the time on motion made after the time has expired: [...] if the party
failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Therefore, an

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extension under this Rule requires showing both good cause and excusable
neglect. Casey v. Quality Restaurants & Concepts, Civ. No. 1:10-cv-309, 2012 WL
3261367, at *2 (N.D. Miss. Aug. 8, 2012) (emphasis in original). “Even if good cause
and excusable neglect are shown, it nonetheless remains a question of the court's
discretion whether to grant any motion to extend time under Rule 6(b).” McCarty v.
Thaler, 376 Fed. App’x. 442, 443-44 (5th Cir. 2010) (citing Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 894-98(1990)).
2.

Analysis
In this case, Relator did not move to extend her expert designation deadline until

May 5, 2022, twenty-five days after the April 6, 2022, deadline established by the
Court’s Case Management Order expired. See Case Management Order [61] at 4; see
also Mot. [93]. Therefore, an extension will not be granted unless Relator can show
both good cause and excusable neglect.
i.

Good Cause
When a party moves for an extension after the deadline, “part of the good cause

showing generally required by [the] court includes an explanation for why a timely
request for additional time could not have been made before the expiration of time.”
Casey, 2012 WL 3261367 at *2 (N.D. Miss. Aug. 8, 2012) (citing Johnson v. Bolivar
County, Civ. No. 2:08-cv-226, 2009 WL 4855988, *3-4 (N.D. Miss. Dec. 9, 2009)).
Relator has not offered any explanation for why a timely extension request could not
have been made. Nor does any explanation appear to exist. Despite apparent
knowledge of the inability to meet her expert designation deadline, instead of

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properly seeking an extension before the deadline passed, Relator filed an admittedly
deficient expert designation. Mem. in Opp’n. [92] at 1. Therefore, Relator has not
shown the existence of good cause
ii.

Excusable Neglect
The Court’s excusable neglect inquiry considers the following factors: (1) the

danger of prejudice to the Defendants, (2) the length of the delay and its potential
impact on the judicial proceedings, and (3) the reason for the delay, including whether
it was within the reasonable control of the movant, and whether the movant acted in
good faith. Adams v. Travelers Indem. Co. of Connecticut, 465 F.3d 156, 161 n. 8 (5th
Cir. 2006) (internal quotation marks and citations omitted).
With respect to the first factor, the Court agrees with Defendants that granting
the requested extension will result in prejudice. Even if the Court had determined
that the extension would not prejudice Defendants, the motion would still be denied.
This Court is not convinced that the mere lack of prejudice is sufficient to
demonstrate excusable neglect. If it were “[t]he word ‘excusable’ would be read out of
the rule if inexcusable neglect were transmuted into excusable neglect by a mere
absence of harm.” See Tuesno v. Jackson, Civ. No. 5:08-cv-302, 2013 WL 685928, at
*5 fn. 2 (S.D. Miss. Feb. 25, 2013) (citing Halicki v. Louisiana Casino Cruises,
Inc., 151 F.3d 465, 469 n. 4 (5th Cir. 1998) (citation omitted).
Under the second factor, the Court considers the length of the delay and its
potential impact on judicial proceedings. Relator suggests that her requested
extension “does not impact any other deadlines, and no defendants would be jammed

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by the delay.” Mem. in Supp. [94] at 2. The Court disagrees. First, Relator requests
the Court extend her expert designation deadline to May 30, 2022, Defendants’ expert
designation deadline to June 30, 2022, and leave all other case management
deadlines in place. Mot. [93] at 1. However, it does not appear that Relator has
obtained all of the claims data she represents is necessary for her expert to provide a
written report. For example, Relator represents that the Defense Health Agency has
agreed to provide the claims data only after the Court entered an amended protective
order. Mem. in Supp. [94] at 2. That Court entered the protective order on May 16,
2022. See Stipulated Protective Order [101]. Therefore, assuming Relator has
obtained all the other necessary claims data, she would have about two weeks to
review it, provide it to her expert witness, and produce a signed, written report. If
not, another extension would presumably become necessary.
Even if the expert witness could provide a written report by the proposed deadline,
Defendants have indicated that they will likely require an extension. Mem. in Opp’n.
[96] at 4. Additionally, despite Relator’s suggestion to the contrary, Defendants are
likely to be “jammed” by the delay. If the Court granted the requested extension,
Relator would have had almost three extra months to designate her expert.
Conversely, under Relator’s proposed deadlines, Defendants would have only one
month to respond to her expert designation. Moreover, if all the other case
management deadlines remained in place, as Relator requests, Defendants time to
complete discovery and file dispositive motions, following their expert designation

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deadline, would be effectively cut in half. Thus, the prejudice is not as “negligible” as
Relator suggests.
Finally, the Court considers the reason for the delay, including whether it was
within the reasonable control of the movant and whether the movant acted in good
faith. As discussed previously, the Court is mindful of the potential difficulties in
obtaining information from governmental agencies; however, it cannot ignore
Realtor’s blatant disregard of the rules. See supra Section II.A.2.ii(a). Relator’s filing
of a knowingly deficient expert designation and dilatory pursuit of an extension lacks
good faith.
Because Relator requested an extension after the deadline and has not shown good
cause and excusable neglect, the Court will deny her request to extend the expert
designation deadlines.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendant Dr.
Brian Tsang’s [89] Motion to Strike [88] Notice of Service of Designation of Experts
is GRANTED.
IT IS, FURTHER, ORDERED that, Relator the Estate of Robyn Turner’s [93]
Motion to Extend Expert Disclosure Deadline is DENIED.
SO ORDERED AND ADJUDGED, this the 24th day of May 2022.

s/ Robert H. Walker______

ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE

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