Brown et al v. United States of America et al

Filing 105

Memorandum Opinion and Order granting re 56 MOTION for Partial Summary Judgment as to Breach of the Standard of Care; denying 59] MOTION in Limine and for Partial Default or Alternative Relief Due to Spoliation of Material Evidence ; denying 67 MOTION in Limine to Exclude Supplemental Expert Witness Opinions, or, in the Alternative, to Strike Defendant's Supplemental Designation of Expert Witnesses, with conditions set forth herein; denying 74 Second MO TION in Limine to Exclude Defendant's Supplemental Experts Opinions, or, In the Alternative to Strike Defendant's Second Supplemental Designation of Expert Witnesses; denying as moot 86 MOTION in Limine to Preclude Evidence of Informed Consent; granting 88 MOTION in Limine to Preclude Evidence of Allocation of Fault to Other Healthcare Providers. Ruling reserved on 54 motion in limine. Signed by District Judge Tom S. Lee on 5/16/19 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CHARLES BROWN AND
TRUDY BROWN

PLAINTIFFS

VS.

CIVIL ACTION NO. 3:17CV551-TSL-LRA

THE UNITED STATES OF AMERICA

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiffs Charles Brown and Trudy Brown have brought this
action against the United States under the Federal Tort Claims
Act, 28 U.S.C. § 2671 et seq., to recover damages for injuries
alleged to have been suffered by Charles Brown during and as a
result of a May 9, 2016 medical procedure at Keesler Medical
Center in Biloxi, Mississippi.

Plaintiffs allege that Mr. Brown

was injured during an ultrasound and CT-guided peritoneal abscess
drainage procedure when Matthew Barchie, M.D., an interventional
radiologist employed by the United States, negligently inserted
the trocar used in the procedure too far and pierced Mr. Brown’s
hepatic diaphragm and pericardium, requiring an emergency
sternotomy to repair the damage.

The case is currently set for a

bench trial before the undersigned to commence June 10, 2019.
Pending before the court at this time are the United States’
Motion to Exclude the Opinions and Testimony of plaintiffs’
expert, Michael Freeman, and the following motions by plaintiffs:

Motion for Partial Summary Judgment as to Defendant’s Breach
of the Standard of Care;
Motion in Limine and for Partial Default of Alternative
Relief Due to Spoliation of Material Evidence;
Motion In Limine to Exclude Supplemental Expert Witness
Opinions, or, in the Alternative, to Strike Defendant’s
Supplemental Designation of Expert Witnesses;
Second Motion In Limine to Exclude Supplemental Expert
Witness Opinions, or, in the Alternative, to Strike
Defendant’s Supplemental Designation of Expert Witnesses;
Motion in Limine to Preclude Evidence of Informed Consent;
and
MOTION in Limine to Preclude Evidence of Allocation of Fault
to Other Healthcare Providers.
The court, having considered these various motions and related
submissions, rules as follows.1
Partial Summary Judgment
Plaintiffs’ motion for partial summary judgment as to
defendant’s breach of the standard of care will be granted.

Under

Mississippi law, “[t]o prove medical malpractice, the plaintiff
must prove a duty to conform to a specific standard of conduct, a
failure to conform to that standard, and an injury proximately
caused by the breach of duty.

Expert testimony must be used to

establish that the requisite standard of care was not followed and
that the failure was the proximate cause of the injury.”

1

The United States has also recently filed
Exclude Testimony or Argument that Tricare Payments
Collateral Source (along with a motion to file that
time). That motion will be addressed once briefing
2

Jackson

a Motion to
are a
motion out of
is complete.

HMA, LLC v. Harris, 242 So. 3d 1, 4 (Miss. 2018).2

Plaintiffs

have offered evidence from two retained experts, Carl Hauser,
M.D., a surgeon, and Scott Resnick, M.D., an interventional
radiologist, both of whom state that during the subject procedure,
Dr. Barchie breached the standard of care by, inter alia,
inserting the trocar right through the abscess, through the liver
and the diaphragm and into the thoracic cavity, where it lacerated
the lung, pericardium, and heart.

Plaintiffs have also offered

unequivocal testimony from Dr. Barchie himself that he breached
the standard of care by failing to know where the tip of the
trocar was at all times and to keep the tip of the trocar away
from Mr. Brown’s heart.

For its part, the United States has

identified two medical experts, Timothy McCowan, M.D, and Shannon
Orr, M.D.

In his expert report, Dr. McCowan states:

While certainly not expected, inadvertent puncture,
laceration or perforation (with associated hemorrhage)
of adjacent organs/structures is a known complication of
any abscess procedure. The severity of the complication
in this case is extreme end, but still not beyond
reported complications in the medical literature (which
include death). A variety of factors affect the
frequency, nature and severity of these type
complications, including the location and size of the
target pathology, patient body habitus and patient
motion, as well as radiologist training, skill and
expertise.

2

“Liability for claims made under the FTCA is ...
determined under substantive state law.” Bradfield v. U.S. ex
rel. Dep't of Veteran's Affairs, 471 F. App'x 364, 365 (5th Cir.
2012).
3

Notably, Dr. McGowan does not purport to address the standard of
care or opine that Dr. Barchie did not deviate from the standard
of care.

The United States’ other medical expert, Dr. Orr, has

provided an expert report in which he states the following:
Dr. Barchie followed the standard of care while
performing the interventional radiology draining
procedure on Mr. Brown on May 9, 2016. Being a
hepatobiliary surgeon, I’m very familiar in the anatomy
of this area. The heart is a few centimeters away from
the edge of the liver. While performing procedures in
this area, it is not uncommon to enter the thoracic
cavity. As stated in his consent to treat the patient,
there is a risk of thoracic injury during this
procedure. This is due to close proximity of the
abscess to the heart and lungs.
Dr. Orr has provided a supplemental report in which he adds:
Being a surgical oncologist that operates very
frequently in this area, I can understand how Dr.
Barchie entered the thoracic cavity. Due to the
location of the abscess, the consent that was signed by
Dr. Barchie states there could be thoracic injury.3
In the court’s opinion, Dr. Orr’s proposed opinion is not
sufficient to create a genuine issue of material fact for trial.
An expert’s testimony is admissible only if it is relevant
and reliable; and an opinion is reliable only if it is adequately
supported.

See Seaman v. Seacor Marine L.L.C., 326 F. App'x 721,

725 (5th Cir. 2009) (“[T]he expert's testimony must be reliable at
each and every step or else it is inadmissible.

3

The reliability

Plaintiffs have moved to strike or exclude Dr. Orr’s
supplemental report/opinions. That motion is addressed infra at
pp. 10-18.
4

analysis applies to all aspects of an expert's testimony: the
methodology, the facts underlying the expert's opinion, the link
between the facts and the conclusion, et alia.

Where an expert's

opinion is based on insufficient information, the analysis is
unreliable.”) (internal quotation marks and citations omitted);
Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th Cir.
2007) (stating that if the data relied on by a party's expert
“fail[s] to provide a ‘relevant’ link with the facts at issue, his
expert opinion was not based on ‘good grounds'”).4

Dr. Orr’s

opinion that Dr. Barchie “followed the standard of care” does not
satisfy this requirement.

As support for his opinion, Dr. Orr

offers only that in drainage procedures such as the one performed
by Dr. Barchie, entering the thoracic cavity is “not uncommon” and
is a known risk of the procedure which was disclosed in the
consent form executed by plaintiff.

In a similar case, Mitchell

v. Shikora, 2017 PA Super 134, 161 A.3d 970, appeal granted in
part, 643 Pa. 699, 174 A.3d 573 (2017), the plaintiff alleged that
the defendant physician breached the standard of care when he cut
into her bowel during a laparoscopic hysterectomy.

4

161 A.3d at

Recently, in Coleman v. United States, 912 F.3d 824, 832
(5th Cir. 2019), the Fifth Circuit held that state law governed
the admissibility of expert testimony in a medical malpractice
case brought under the FTCA. Mississippi also applies the Daubert
standards of relevance and reliability. See Kronfol v. Johnson,
No. 2017-CA-00542-COA, 2019 WL 1915564, at *5 (Miss. Ct. App. Apr.
30, 2019)).
5

971.

On appeal of a defense verdict, the court reversed, finding

that the trial court had erred in admitting testimony from the
defendant’s expert that a bowel injury was a known risk of
complication of the surgery.

In so concluding, the court

explained:
[W]hile evidence of risks and complications of a
surgical procedure may be admissible to establish the
relevant standard of care, ... in this case, such
evidence was irrelevant in determining whether
Defendants, specifically Dr. Shikora, acted within the
applicable standard of care. Acknowledging a liberal
threshold to determine the relevancy of such evidence,
we nevertheless emphasize that the evidence must be
probative of whether Defendants' treatment of Mitchell
fell below the standard of care. The fact that one of
the risks and complications of the laparoscopic
hysterectomy, i.e., the perforation of the bowel, was
the injury suffered by Mitchell does not make it more or
less probable that Dr. Shikora conformed to the proper
standard of care for a laparoscopic hysterectomy and was
negligent. Indeed, in deciding to undergo this surgery,
Mitchell expects that the treatment will be rendered in
accordance with the applicable standard of care,
regardless of the risks.

6

Id. at 975 (citations omitted)5

As the court recognized in

Mitchell, the fact that the injury which occurred is a known
complication or risk of a given procedure may be relevant to
establishing the standard of care, but that fact alone does not
establish compliance with the standard of care.

Indeed, in

Mitchell, the defendant’s expert acknowledged that while bowel
injuries can happen in surgery with the best of care because of
the proximity of other organs, i.e., it is a known risk, such
injuries can also occur as a result of the surgeon’s negligence so
that the mere fact that an injury occurs which is a known risk
tells one nothing about whether the doctor breached the standard
of care.

Id. at 974.

The same is true here.

As in Mitchell, the

fact that the injury suffered by Mr. Brown was one of the risks
and complications of the drainage procedure performed by Dr.
Barchie “does not make it more or less probable that Dr. [Barchie]
5

The court in Mitchell continued, stating:
Moreover, the evidence would tend to mislead and/or
confuse the jury by leading it to believe that
Mitchell's injuries were simply the result of the risks
and complications of the surgery. See [Brady v. Urbas,
631 Pa. 329, 111 A.3d 1155, 1161 (2015)] (noting that
evidence of risks and complications could confuse the
jury and cause it to “lose sight of the central question
pertaining to whether defendant's actions conformed to
the governing standard of care.”).
Mitchell v. Shikora, 2017 PA Super 134, 161 A.3d 970, 975, appeal
granted in part, 643 Pa. 699, 174 A.3d 573 (2017). There is no
risk of jury confusion in this case, since the case is to be tried
to the court and not a jury. However, the court’s piont – that
the proper focus is not on whether a particular event is a risk of
the procedure but rather whether or not Dr. Barchie deviated from
the standard of care – is nevertheless valid.
7

conformed to the proper standard of care for [an abscess drainage
procedure] and was negligent.”

Id. at 975.

Dr. Orr’s proffered

opinion, therefore, which he bases on the fact that the injury
suffered was a risk of the procedure, is not sufficient to create
a genuine issue of material fact as to whether Dr. Barchie
breached the standard of care.6

Accordingly, plaintiffs’ motion

for partial summary judgment on this issue will be granted.7
Plaintiffs’ Spoliation Motion
During Mr. Brown’s May 9, 2016 abscess drainage procedure, a
Clinical Sedation Record (CSR) was generated on which Mr. Brown’s
heart rate, blood pressure, oxygen saturation level and other
vital signs were recorded.

That record was originally prepared in

paper form and was subsequently scanned or otherwise reproduced
and entered in the hospital’s electronic records.

However, in

response to plaintiffs’ request for production, the United States
has advised that the form cannot be located in either its paper or
electronic form.

Plaintiffs assert that this form contained

6

Dr. Orr’s report cites no other basis or explanation for
his opinion regarding Dr. Barchie’s alleged compliance with the
standard of care. See Bates & Co., Inc. v. Hosokawa Micron
Intern., Inc., No. 1:04-CV-475, 2005 WL 6227845, *1 (E.D. Tex.
April 4, 2005) (“An expert's testimony is generally limited to his
report produced in accordance with [Rule 26(a)(20(B)], and to
explanations he provides which are a ‘reasonable extension of his
report.’”).
7

The court’s conclusion that plaintiffs are entitled to
partial summary judgment on Dr. Barchie’s breach of the standard
of care renders moot plaintiffs’ motion in limine to preclude
evidence of informed consent.
8

“important medical facts which are material to the severity of the
acute injury suffered” by Mr. Brown during the subject procedure
in May, 2016; and they argue that due to what they contend is the
United States’ spoliation of material evidence, they have been
“deprived of valuable impeachment evidence relative to Dr. Orr’s
opinions.”

They thus have moved the court for various and

alternative forms of sanctions for the United States’ alleged
spoliation, ranging from an adverse inference, to limiting Dr.
Orr’s testimony as to the existence and/or cause of Mr. Brown’s
post-procedure medical decline to entering a default judgment in
their favor.

The court concludes that plaintiffs’ motion should

be denied.
The parties agree that federal evidentiary rules govern the
spoliation analysis.

See King v. Ill. Cent. R.R., 337 F.3d 550,

556 (5th Cir. 2003) (applying federal law in determining whether
the district court abused its discretion in rejecting spoliation
arguments); Settles v. United States, No. SA-17-CV-01272-DAE, 2018
WL 5733167, at *2 (W.D. Tex. Aug. 29, 2018) (holding that
spoliation issue in FTCA case is procedural issue governed by
federal law).

Under federal law, spoliation of evidence “is the

destruction or the significant and meaningful alteration of
evidence.”

Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015)

(quoting Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp.

9

2d 598, 612 (S.D. Tex. 2010)).

A party seeking sanctions based on

spoliation of evidence must establish each of the following:
“(1) the party with control over the evidence had an obligation to
preserve it at the time it was destroyed; (2) the evidence was
destroyed with a culpable state of mind; and (3) the destroyed
evidence was relevant to the party's claim or defense such that a
reasonable trier of fact could find that it would support that
claim or defense.”

Rimkus Consulting Group, 688 F. Supp. 2d at

615-16.
As to the requirement of a culpable state of mind, the Fifth
Circuit has held that sanctions against a spoliator are
permissible “only upon a showing of bad faith or bad conduct.”
Guzman, 804 F.3d at 713.

In this context, bad faith “generally

means destruction for the purpose of hiding adverse evidence.”
Id.

“Mere negligence is not enough to sustain a finding of

spoliation, and if one may just as reasonably infer from the facts
that the alleged spoliator was negligent, a finding of bad faith
is inappropriate.”

Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP,

2016 WL 4544052, at *1 (S.D. Miss. Aug. 31, 2016) (internal
quotation marks and citations omitted).

Plaintiffs herein have

shown only that the CSR form is missing; they have not

10

demonstrated that it was destroyed for the purpose of hiding
adverse evidence.

Accordingly, the motion will be denied.8

Plaintiffs’ Motion in Limine re: Allocation of Fault
Two of plaintiffs’ motions in limine pertain to the
reports/opinions of Dr. Shannon Orr, one of the government’s
medical experts.

In one of those motions, plaintiffs seek to

preclude the United States from presenting evidence or argument at
trial regarding fault or negligent acts of other healthcare
providers.

Specifically, they seek an order prohibiting the

United States from offering evidence of breaches of the standard
of care by other healthcare providers who provided care and/or
treatment to Mr. Brown.
In his original report, Dr. Orr opined that Mr. Brown’s
decline in health following the drainage procedure at issue in
this case “is a result of his significant co-morbidities and
chronic intra-abdominal infection/sepsis by retained gallstones
and not the result of his procedure on May 9, 2016.”

He concluded

that “[w]hile it is unfortunate that Mr. Brown underwent a
sternotomy that was related to his IR procedure on May 9, 2016,
his medical decline was a result of retained gallstones and
chronic infection and not the sternotomy.
8

He sustained no long-

The court does not hold that plaintiffs are not
precluded from attempting at trial to demonstrate spoliation. The
court holds only that they have failed in their motion to
establish each of the elements that could support a sanction for
spoliation.
11

term sequelae from the puncture of his heart and/or the
sternotomy.”
In his original report, Dr. Orr relates that for nearly a
year following Mr. Brown’s release from Keesler Medical Center in
May 2019, Mr. Brown “continued to suffer from acute on [sic]
chronic abdominal infections that failed systemic antibiotic
therapy and repeated IR drainage.”

Regarding this condition, his

report states:
Despite failing multiple rounds of antibiotics and IR
procedures, a surgery consult was never done. During
this time, Mr. Brown never had a CT scan which showed
complete resolution of the abscess. Retained gallstones
are a known cause of recurrent abscesses, especially in
a patient who had a gangrenous gallbladder and when the
abscess occurs perihepatic. When Mr. Brown sees Dr.
Slakey at Tulane Medical Center, Dr. Slakey immediately
thinks he is likely to have retained gallstones. On
4/25/2017, Dr. Slakely operates on Mr. Brown and finds
... gallstones. ... On a followup CT scan, the abscess
is almost completely resolved. Since his surgery, Mr.
Brown has not required any further intervention for
infection from his abdomen. Mr. Brown continues to
improve physically now his infection has resolved.
In his supplemental report produced by the United States on
November 21, 2018, Dr. Orr, addressing the cause of Mr. Brown’s
decline in health, states:
The reason for his decline in is (sic) health is chronic
intraabdominal sepsis and infection that was not
appropriately managed until Dr. Douglas Slakey operated
on him need (sic) on 4/25/2017 . . . it was his chronic
infection in his abdomen that missed managed (sic) that
lead to multiple hospital admissions, prolonged
hospitalizations, further IR procedures, and multiple
rounds of antibiotics.

12

Plaintiffs object that Dr. Orr’s supplemental report presents for
the first time “a brand new alternative causation theory”, namely,
that “Mr. Brown’s illness was caused by ‘mismanaged’ medical
care”, and further argue that “the only possible relevance of [Dr.
Orr’s] opinion, is to attempt to reduce [the United States’]
responsibility for Mr. Brown’s damages flowing as a consequence of
the initial injury by apportioning fault to someone else.”

They

thus submit that as the United States has not pled or offered
evidentiary support for this new apportionment of fault defense,
then any evidence of negligent acts or omissions, wrongful
conduct, fault, or mismanagement attributable to any healthcare
provider (other than those employed by the United States) should
be excluded as irrelevant.
Mississippi Code Annotated § 85-5-7, which governs allocation
of fault, provides that “in any civil action based on fault, the
liability for damages caused by two (2) or more persons shall be
several only, and not joint and several and a joint tortfeasor
shall be liable only for the amount of damages allocated to him in
direct proportion to his percentage of fault.”

The United States

did not plead an affirmative defense of allocation of fault.

See

Pearl Public School Dist. v. Groner, 784 So. 2d 911 (Miss. 2001)
(allocation of fault under § 85-5-7 is affirmative defense that
must be pled).

However, the United States has not asserted

(through Dr. Orr or otherwise) that the negligence of someone
13

other than Dr. Barchie caused or contributed to any injury
suffered by Mr. Brown as a result of Dr. Barchie’s negligence in
performing the drainage procedure on May 9, 2016.

Dr. Orr’s

opinion, as clearly expressed in his original report and his
supplemental report, is that the puncture of Mr. Brown’s heart
during that drainage procedure and the resulting emergency
sternotomy did not cause or contribute to the subsequent decline
in Mr. Brown’s medical condition, and that his decline was instead
caused by the chronic infections which were in turn caused by the
retained gallstones.

Hence, Dr. Orr’s proposed testimony that Mr.

Brown’s medical care from and after June 30, 2016 for abdominal
infections was “not appropriately managed” or was “mismanaged” is
not due to be stricken on the basis that it is in the nature of an
impermissible allocation of fault defense.

It is, however, due to

be stricken on the basis that it is neither reliable nor relevant.
In his supplemental opinion, Dr. Orr, while opining that Mr.
Brown’s medical care for his chronic infections from and after
June 30, 2016 was “mismanaged”, does not state in what manner his
care was mismanaged.

He says only that “there were multiple times

when a surgeon could have intervened but there was never a surgery
consult.”

Similarly, in his original report, Dr. Orr implied that

a surgery consult should have been requested sooner.

Thus, the

failure of Mr. Brown’s medical providers to request a surgery
consult is the only arguable “mismanagement” of Mr. Brown’s care
14

Dr. Orr has identified.

Yet in neither his original nor his

supplemental report does Dr. Orr state what a more timely surgery
consult would have accomplished.

On that issue, plaintiffs’

expert, Dr. Carl Hauser, stated in a supplemental report produced
on October 24, 2018, that Mr. Brown did require surgical
intervention for his chronic infections and that he did improve
after surgery by Dr. Slakey, but Dr. Hauser maintained that “Mr.
Brown was unable to undergo that operation until April 25, 2017
due to his general debility.”

According to Dr. Hauser,

Had it been possible to intervene surgically and treat
this chronic infection prior to April 25, 2017, it is
probable that Mr. Brown’s chronic abdominal infection
would have been treated sooner, with earlier
improvement. But the medical records and the Brown’s
deposition testimony reflect that Mr. Brown’s weakened
condition and debilitation caused directly by the
injuries received during the May 9, 2016 procedure
discouraged earlier surgical intervention and treatment
of the chronic epi-phrenic collection. Whether and to
what extent the mild chronic abdominal irritation caused
by retained gallstones is therefore unrelated to the
injury and damages experienced by Mr. Brown as a result
of the May 9, 2016 procedure. The chronic abdominal
collection required surgical intervention as evidenced
by Mr. Brown’s improvement after Dr. Slakey’s procedure.
But the chronic critical illness experienced as a result
of the May 9, 2016 procedure prevented earlier surgical
intervention. Inability to treat any infectious sources
because of Mr. Brown’s unfitness for operation therefore
prevented treatment of chronic retained stones allowing
further deterioration and decline, and the associated
medical care, treatment, and expenses. The chronic
abdominal collection required surgical intervention as
evidenced by Mr. Brown’s improvement after Dr. Slakey’s
procedure. But the chronic critical illness experienced
as a result of the May 9, 2016 procedure prevented
earlier surgical intervention. Inability to treat any
infectious sources because of Mr. Brown’s unfitness for
operation therefore prevented treatment of chronic
15

retained stones allowing further deterioration and
decline, and the associated medical care, treatment, and
expenses.
In his supplemental report, Dr. Orr expresses his agreement with
Dr. Hauser that Mr. Brown’s condition would have improved sooner
with earlier surgical intervention.

However, nowhere in either

his original nor his supplemental report does Dr. Orr assert that
the surgery reasonably could have been performed on Mr. Brown
prior to April, 2017.

Indeed, even though the United States has

argued that Dr. Orr’s supplemental report was intended for the
specific purpose of rebutting the supplemental opinions expressed
by plaintiffs’ experts, including Dr. Hauser, Dr. Orr does not
address Dr. Hauser’s opinion on this issue.
Moreover, given Dr. Orr’s opinion that Mr. Brown’s medical
decline was due to his chronic infections resulting from retained
gallstones and not due to any injury he may have suffered as a
result of the May 6, 2016 drainage procedure and emergency
sternotomy, then testimony by Dr. Orr relating to the
appropriateness of the medical care Mr. Brown received for the
chronic infections would not be relevant.

That is, such testimony

would not make it more or less likely that the infections were
caused by retained gallstones or that the infections were the
cause of his alleged debility.

For these reasons, Dr. Orr will be

precluded from offering testimony relating to his opinions as to

16

the appropriateness of the medical care Mr. Brown received for his
chronic abdominal infections.
Plaintiffs’ Motions to Strike Supplemental Expert Opinions
On April 1, 2019, plaintiffs moved pursuant to Federal Rules
of Civil Procedure 26(a)(2)(D) and 37 and Local Rule 26(a)(5) to
exclude as untimely the supplemental designation/expert opinions
of Dr. Orr and Dr. Robert Shavelle, which the United States served
on November 21, 2018, eight days after the close of discovery.
See Fed. R. Civ. P. 26(a)(2)(D) (“A party must make these (expert)
disclosures at the times and in the sequence that the court
orders.”); Unif. Loc. R. 26(a)(5) (“A party is under a duty to
supplement disclosures at appropriate intervals under FED. R. CIV.
P. 26(e) and in no event later than the discovery deadline
established by the case management order.”); Fed. R. Civ. P.
37(c)(1) (“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.”).

Thereafter, on April 4, 2019, some

five months after the close of discovery, the United States served
on plaintiffs supplemental designation/expert reports of Bruce
Brawner (life care planner) and James A. Koerber (economist).
Plaintiffs promptly moved to strike those supplemental opinions as
well, on the basis that they were untimely.
17

The United States asserts in response to plaintiffs’ motions
to strike that it could not have submitted these witnesses’
supplemental reports on or before the discovery deadline since the
reports were intended to rebut opinions expressed in plaintiffs’
own experts’ supplemental reports, which plaintiffs did not
produce until the day discovery ended.

It submits that the

supplemental reports of Dr. Orr and Dr. Shavelle were timely under
Federal Rule of Civil Procedure 26(a)(2)(D), which requires that
expert disclosures that are “intended solely to contradict or
rebut evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B) or (C) [must be made] within 30 days
after the other party’s disclosure.”

The United States

acknowledges that the supplemental reports of Brawner and Koerber
were not timely under this rule but argues that since none of its
experts’ supplemental reports raises any new issue or theory and
all are truly supplemental in nature, then under the circumstances
of this case, fairness dictates that the supplemental reports be
allowed and the experts permitted to testify on the matters
contained therein.
Irrespective of whether the subject supplemental expert
reports were timely produced, plaintiffs will not be prejudiced if
their motions to strike are denied.

Plaintiffs requested that in

the event the court were to deny their motion to strike Dr. Orr’s
supplemental report, they be given an opportunity to supplement
18

Dr. Hauser’s report and to designate an additional expert to
address Dr. Orr’s opinion that Mr. Brown’s medical care was
mismanaged.

However, as the court has concluded that such

testimony by Dr. Orr will not be permitted in any event, no such
supplementation/designation would be required.

They further

advise that if the court were to deny their motion to strike Dr.
Shavelle’s testimony, they would request to have their life
expectancy expert, Freeman, address the assertions in Dr.
Shavelle’s supplemental report, with particular reference to Mr.
Brown’s ability to walk.

To the extent that Freeman is otherwise

qualified to provide opinion life expectancy testimony and can
demonstrate a reliable basis for his opinions, he will be
permitted to testify on the matters contained in Dr. Shavelle’s
supplemental report without the necessity of further supplementing
his own report.

Beyond these limited matters, plaintiffs do not

contend and have not attempted to demonstrate that they require
additional discovery or a continuance of the trial if their
motions to strike are denied.

Accordingly, the court, in its

discretion, will deny their motions to strike.
United States’ Motion to Exclude Opinions and
Testimony of Michael Freeman
The United States has moved to exclude the opinions and
testimony of plaintiffs’ expert, Michael Freeman, contending his
opinions do not satisfy the admissibility criteria of Federal Rule
of Evidence 702, as interpreted by Daubert v. Merrell Dow
19

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.
2d 469 (1993), as he lacks such relevant education, training or
experience as would enable him to render opinions on life
expectancy or on any medical issue relevant to this case and as he
has not employed or applied a reliable methodology to reach his
proffered opinions.

Typically, in a case such as this, where the

court is unable to fully evaluate the relevance and reliability of
a witness’s proposed testimony on the basis of the parties’
written submissions, the court would conduct a Daubert hearing in
advance of trial.

In this case, however, as the case is to be

tried to the court and not a jury, the court will instead permit
Freeman to testify and determine what weight, if any, to give his
testimony.

See Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000)

(“Most of the safeguards provided for in Daubert are not as
essential in a case such as this where a district judge sits as
the trier of fact in place of a jury”); Whitehouse Hotel L.P. v.
IRS Commissioner, 615 F.3d 321, 330 (5th Cir. 2010) (“[T]here
being no jury, there is no risk of tainting the trial by exposing
a jury to unreliable evidence.”).

Accordingly, the court will

reserve ruling on the United States’ motion to strike.
Conclusion
Based on all of the foregoing, it is ordered that Plaintiffs’
Motion for Partial Summary Judgment as to Defendant’s Breach of
the Standard of Care [Dkt. 56] is granted; Plaintiffs’ Motion in
20

Limine and for Partial Default of Alternative Relief Due to
Spoliation of Material Evidence [Dkt. 59] is denied; Plaintiffs’
Motion In Limine to Exclude Supplemental Expert Witness Opinions,
or, in the Alternative, to Strike Defendant’s Supplemental
Designation of Expert Witnesses [Dkt. 67] is denied, with the
understanding that Dr. Orr is precluded from testifying as to
alleged mismanagement of Mr. Brown’s medical care and Mr. Freeman
will be permitted to address matters contained in Dr. Shavelle’s
supplemental report; Plaintiffs’ Second Motion In Limine to
Exclude Supplemental Expert Witness Opinions, or, in the
Alternative, to Strike Defendant’s Supplemental Designation of
Expert Witnesses [Dkt. 74] is denied; Plaintiffs’ Motion in Limine
to Preclude Evidence of Informed Consent [Dkt. 86] is denied as
moot; and Plaintiffs’ Motion in Limine to Preclude Evidence of
Allocation of Fault to Other Healthcare Providers [Dkt. 88] is
granted on other grounds.

The court will reserve ruling on the

United States’ Motion to Exclude the Opinions and Testimony of
Michael Freeman.
SO ORDERED this 16th day of May, 2019.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

21