Severance v. Waffeoffe et al

Filing 225

MEMORANDUM AND ORDER -....IT IS HEREBY ORDERED that plaintiff David A. Severance's motion to exclude expert testimony of Dr. Allen Sclaroff is DENIED. [Doc. 187] IT IS FURTHER ORDERED that plaintiff David A. Severance's mo tion to exclude expert testimony of Dr. Kennon Tubbs is DENIED. [Doc. 185] IT IS FURTHER ORDERED that by Wednesday, December 5, 2018, defendant Ernest Jackson, through counsel, shall submit to plaintiff's counsel a list of all cases in which Dr. Allen Sclaroff testified as an expert at trial or by deposition during the previous four years. If defendant fails to comply timely and fully with this Order, plaintiff is directed to file a Status Report with the Court, and the Court will exclude Dr. Sclaroff's expert testimony. ( Response to Court due by 12/5/2018.). Signed by District Judge Charles A. Shaw on 11/15/2018. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DAVID A. SEVERANCE,

)
)
Plaintiff,
)
)
v.
)
)
DR. CHARLES WILLIAM CHASTAIN, et al., )
)
Defendants.
)

No. 4:15-CV-74 CAS

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff David A. Severance’s motions to exclude the
expert testimony of defendant Dr. Ernest Jackson’s1 (“defendant”) expert witnesses, Dr. Kennon
Tubbs and Dr. Allen Sclaroff, pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Defendant opposes the motions. No party has
requested an evidentiary hearing. The parties have submitted an evidentiary record in connection
with the motions, which includes the expert reports and curriculum vitae of Dr. Tubbs and Dr.
Sclaroff. The Court finds it can make a proper Daubert analysis without the need for an evidentiary
hearing or oral argument. For the following reasons, the plaintiff’s motions will be denied.
I.

Background

Plaintiff brings claims against prison officials and medical staff asserting that their treatment
of his jaw fracture violated the Eighth Amendment. His claims arise from being struck in the face
with a metal lock by a fellow inmate on April 26, 2012. As a result of the encounter, plaintiff
suffered a fractured jaw and required extensive medical treatment, including oral surgery to implant

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As of the date of this Order, the remaining defendants are Dr. Ernest Jackson, Brett M.
Jeschke, and Larry Keithley. Dr. Ernest Jackson retained Dr. Kennon Tubbs and Dr. Allen Sclaroff.

titanium plates. Approximately three months after the implantation, one of the plates was removed
because of an infection. On April 11, 2013, the infection had not yet cleared and the remainder of
the implanted hardware was removed.
In addition to his jaw fracture, plaintiff began to suffer stroke symptoms on July 9, 2013.
Plaintiff was told that his increased risk of stroke, persistent cardiac issues, multiple medications,
and continued cigarette use made a third jaw surgery too dangerous to perform under anesthesia.
Plaintiff claims that defendants failed to provide him with proper medical care because his jaw
remains fractured today and requires future treatment for his injury.
II.

Discussion

A. Plaintiff’s Motion to Exclude Expert Witness Dr. Allen Sclaroff, DDS
Plaintiff moves to exclude testimony and evidence from defendant’s oral and maxillofacial
surgical expert, Dr. Allen Sclaroff, DDS, for three reasons: (1) the expert report was untimely
because it was submitted to plaintiff four days past the deadline set by this Court; (2) defendant
failed to disclose all cases in which Dr. Sclaroff testified as an expert by deposition; and (3) the
expert report does not meet the standards for admissibility set forth in Daubert because Dr. Sclaroff
failed to include any reasoning or explanation for his opinions.
1. Timeliness and Disclosure
On May 24, 2018, the Court granted the parties’ Joint Motion for Leave to Modify the Case
Management Order, which, in pertinent part, ordered that “Defendants shall disclose all expert
witnesses and shall provide the reports required by Rule 26(a)(2), Fed. R. Civ. P., by June 8, 2018.
Defendants’ expert witnesses shall be deposed by July 6, 2018.” [Doc. 175].

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On June 8, 2018, defendant disclosed Dr. Sclaroff as an expert witness and indicated the
expert report would be supplemented.2 [Doc. 191-3]. On June 12, 2018, defendant submitted Dr.
Sclaroff’s one and a half page report to plaintiff’s counsel with the following statement: “Dr.
Sclaroff has never testified at trial and has not kept a record of depositions in which he has given
expert testimony in.” [Doc. 191-5, 191-7]. Defendants were scheduled to depose plaintiff’s expert
witness, Dr. Stephen Shall, DDS, the following day, on June 13, 2018.
After receiving Dr. Sclaroff’s report, plaintiff’s counsel sent an e-mail to defendant’s counsel
stating: “Dr. Shall will not be in a position tomorrow morning to give you firm opinions as to
whatever is contained in these new reports” but “[w]e are happy to proceed with Dr. Shall’s
deposition unless we hear differently from you.” [Doc. 195-1]. Defendant’s counsel agreed to
proceed with the deposition of plaintiff’s expert, Dr. Shall.
In the instant Motion to Exclude, plaintiff argues that the four-day delay in receiving Dr.
Sclaroff’s expert report caused significant prejudice to plaintiff because both plaintiff’s counsel and
Dr. Shall were denied a meaningful opportunity to analyze the report in preparation for the
deposition scheduled for the following day. Plaintiff also argues that defendant’s failure to provide
a list of all other cases in which Dr. Sclaroff has testified as an expert by deposition is additional
grounds for exclusion.
Upon finding that a party’s Rule 26 expert disclosure was untimely, a court must determine
the appropriate sanction, if any. Under Rule 37(c)(1), Fed. R. Civ. P., a range of potential
punishments exists for failure to comply with a rule. The choice of the sanction or remedy lies
within the wide discretion of the trial court, Wagoner v. Johnson, 527 F.3d 687, 682 (8th Cir. 2003),

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Defendant did not provide Dr. Sclaroff’s report at the time of disclosure.
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and the Rule requires the court to consider whether the party’s failure was substantially justified or
harmless. Fed. R. Civ. P. 37(c)(1).
The Eighth Circuit has identified several factors for district courts to consider before
excluding evidence: the surprise and prejudice to the opposing party, the extent to which allowing
the information or testimony would disrupt the order and efficiency of the trial, and the importance
of the information or testimony. See Wagoner, 527 F.3d at 692 (citing cases). The complete
exclusion of evidence “is a harsh penalty and should be used sparingly.” Id. (quoted case omitted).
Although Dr. Sclaroff’s report was not disclosed on the date required by the Amended Case
Management Order, the Court finds that the four-day delay did not cause significant prejudice or
disrupt the efficiency of the trial to justify excluding Dr. Sclaroff’s expert testimony. Plaintiff’s
counsel had the opportunity to make a request for Dr. Shall’s deposition to be rescheduled, but left
the decision solely up to defendant’s counsel. Moreover, Dr. Sclaroff’s report is a mere page and
a half in length, the majority of which is a summary of plaintiff’s medical history, which Dr. Shall
presumably read in preparation for his deposition. Plaintiff has not indicated how Dr. Shall’s
deposition testimony might have changed as a result of reviewing Dr. Sclaroff’s report. Further, at
the time the report was disclosed, plaintiff’s counsel had approximately four weeks to prepare for
the deposition of Dr. Sclaroff. To date, plaintiff has chosen not to depose Dr. Sclaroff on the
contents of his report.
Under these circumstances, the Court finds that the delay in producing the report is harmless.
The Court also does not find that permitting Dr. Sclaroff’s testimony would disrupt the order or
efficiency of trial, which is scheduled for March 4, 2019.

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The Court further declines to exclude Dr. Sclaroff’s testimony based on defendant’s failure
to comply with Rule 26(a)(2), which requires the disclosure of expert testimony to include “a list
of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or
by deposition.” Although counsel for defendant inappropriately disregarded the expert report
requirements of Rule 26 of the Federal Rules of Civil Procedure, no discovery motions were filed
by plaintiff and, in review of the evidentiary record before the Court, plaintiff made no attempt to
obtain Dr. Sclaroff’s previous deposition testimony without court intervention.
Defendant will, however, be directed to submit this information to plaintiff, with the
reminder that “[a] party is not excused from producing a detailed and complete list of cases in which
that party’s expert has testified simply because the expert does not maintain such a list, or because
such a list would be costly and difficult to compile.” Jennings v. Thompson, 792 F. Supp. 2d 1, 6
(D.D.C. 2011). If defendant is not compliant with this Order, within the deadline provided, the
Court has authority to exclude the testimony of Dr. Sclaroff for failure to comply with the Federal
Rules. See Christian v. Frank Bommarito Oldsmobile, Inc., 2009 WL 10694836, at *1 (E.D. Mo.
July 21, 2009).
Therefore, plaintiff’s motion to exclude Dr. Sclaroff’s testimony on these grounds should
be denied.
2. Reliability of Dr. Sclaroff’s Expert Report
Plaintiff argues that Dr. Sclaroff’s expert report should also be excluded because it does not
include any reasoning or explanation for his opinion that “the Medical and Dental Team acted in the
best interest of Mr. Severance by denying reconstructive mandibular surgery” and they “not only

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prolonged his life but saved his life by not subjecting him to a long surgery and a long general
anesthesia.” Sclaroff Report at 2.
Defendant responds that Dr. Sclaroff’s expert report is reliable and should be admitted
because his opinion that the prison medical team made the correct decision in denying plaintiff
additional oral surgery is based on a thorough review of plaintiff’s extensive medical records and
over 40 years of experience as a practicing oral and maxillofacial surgeon.
The admission of expert testimony in federal court is governed by Federal Rule of Evidence
702. In Daubert, the United States Supreme Court interpreted Rule 702 to require district courts to
be certain that expert evidence based on scientific, technical or other specialized knowledge is “not
only relevant, but reliable.” Daubert, 509 U.S. at 589. The district court must make a “preliminary
assessment of whether the reasoning or methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at
592-93.
The Eighth Circuit Court of Appeals has stated that proposed expert testimony must meet
three criteria to be admissible under Rule 702. First, evidence based on scientific, technical, or other
specialized knowledge must be relevant. See Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th
Cir. 2001). “Second, the proposed witness must be qualified to assist the finder of fact.” Id. (citation
omitted). “Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so
that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.” Id.
(internal quotation marks omitted). To meet the third requirement, the testimony must be “based
on sufficient facts or data” and be “the product of reliable principles and methods,” and the expert

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must have “reliably applied the principles and methods to the facts of the case.” Fed. R. Evid.
702(b)-(d).
“Rule 702 reflects an attempt to liberalize the rules governing the admission of expert
testimony[,]” Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir. 1999), and “favors admissibility
if the testimony will assist the trier of fact.” Clark ex rel. Clark v. Heidrick, 150 F.3d 912, 915 (8th
Cir. 1998). Doubt regarding “whether an expert’s testimony will be useful should generally be
resolved in favor of admissibility.” Id. (citation and internal quotation omitted).
As a general rule “the factual basis of an expert opinion goes to the credibility of the
testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for
the opinion in cross-examination.” Nebraska Plastics, Inc. v. Holland Colors Am., Inc., 408 F.3d
410, 416 (8th Cir. 2005) (quoted case omitted); see also Doe v. City of St. Louis, 2012 WL 1134032,
at *3 (E.D. Mo. Apr. 4, 2012). However, “if the expert’s opinion is so fundamentally unsupported
that it can offer no assistance to the jury, it must be excluded.” Id. (quoted case omitted). An expert
opinion is fundamentally unsupported when it “fails to consider the relevant facts of the case.” Id.
Plaintiff does not challenge the relevance of Dr. Sclaroff’s testimony or his qualifications
in the field of oral surgery. Plaintiff limits his challenge to the reliability of Dr. Sclaroff’s testimony.
Plaintiff specifically argues that Dr. Sclaroff’s written report is not supported by the application of
any methodology and does not include any explanation for the opinion that he asserts.
Dr. Sclaroff’s written report and opinion is based on his review of plaintiff’s medical records,
prison records, medication lists, and deposition transcripts of the medical professionals who
provided plaintiff with treatment during the relevant time frame, as well as his own extensive
experience as an oral surgeon. In forming his opinion that it was the correct standard of care to deny

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plaintiff additional oral surgery, Dr. Sclaroff considered and referenced key medical records to
support his opinion, including the fact that plaintiff is “classified as an ASA 4 cardiac risk which is
a severe cardiac anesthetic risk for a major cardiac event under anesthesia.”
The Court finds that plaintiff’s objections to Dr. Sclaroff’s testimony go to its weight rather
than its admissibility.

The report is sufficiently reliable and relevant to assist the jury’s

determination of whether defendants acted within the correct medical standard of care. A general
complaint that an expert lacks a sufficient factual basis for his opinion is not grounds for excluding
the testimony and report. Plaintiff’s assertions concerning flaws in Dr. Sclaroff’s methodology are
proper subjects for plaintiff’s own expert testimony and for thorough cross-examination before the
trier of fact.
Therefore, this aspect of plaintiff’s motion to exclude the testimony of Dr. Sclaroff should
be denied.
B. Plaintiff’s Motion to Exclude Expert Witness Dr. Kennon Tubbs
Plaintiff moves to exclude testimony and evidence from defendant’s expert, Dr. Kennon
Tubbs, for four reasons: (1) the supplemental expert report was untimely because it was submitted
to plaintiff four days past the deadline set by this Court; (2) defendant failed to comply with Rule
26(a)(2), which requires the disclosure of expert testimony to include a list of the witness’s
publications; (3) Dr. Tubbs does not have the knowledge, skill, experience, training, or education
in oral or maxillofacial surgery sufficient to render the opinion in his report; and (4) the expert report
does not meet the standards for admissibility set forth in Daubert because Dr. Tubbs failed to include
any reasoning or explanation for his opinions.

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1. Timeliness and Disclosure
The Court ordered defendants to disclose all expert witnesses and provide expert reports by
June 8, 2018. [Doc. 175]. Defendant had previously disclosed Dr. Tubbs as an expert witness and
provided his initial written report on July 27, 2017. [Doc. 191-1]. Defendant again disclosed Dr.
Tubbs as an expert witness and re-submitted his written report on June 8, 2018. [Doc. 191-3]. Four
days later, on June 12, 2018, defendant submitted Dr. Tubbs’s supplemental report to plaintiff.
Mirroring the same arguments as in plaintiff’s Motion to Exclude the Expert Testimony of
Dr. Sclaroff, plaintiff contends that the four-day delay in receiving Dr. Tubbs’s expert report caused
significant prejudice to plaintiff because both plaintiff’s counsel and plaintiff’s expert, Dr. Shall,
were denied a meaningful opportunity to analyze the report in preparation for the deposition
scheduled on the following day.
The Court does not accept this argument because the four-day delay did not cause plaintiff
significant prejudice or disrupt the efficiency of trial; counsel had the opportunity to reschedule Dr.
Shall’s deposition, but left the decision solely up to defendant’s counsel; and, at the time the
supplemental report was disclosed, plaintiff’s counsel had approximately four weeks to prepare for
the deposition of Dr. Tubbs.
Moreover, the supplemental report is substantially similar to the initial report without any
change of opinion. The supplemental report was only edited to include minimal details from the
deposition testimony of plaintiff’s heath care providers. “Courts have allowed an expert’s untimely
supplemental report when the supplementation did not contradict prior . . . testimony, but rather,
only provided more detailed information that was ‘entirely consistent with and d[id] not significantly
expand on any of the opinions or reasons in the’ expert’s report, or merely expand[ed] or clarif[ied]

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initial opinions that the [other party] had an opportunity to test during discovery.” Bruhn Farms
Joint Venture v. Fireman’s Fund Ins. Co., 2017 WL 632105, at *7 (N.D. Iowa Feb. 13, 2017) (citing
Emerson Elec. Co. v. Suzhou Cleva Elec. Appliance Co., 2015 WL 2176964, at *3 (E.D. Mo. May
8, 2015)).
The Court also declines to exclude Dr. Tubbs’s testimony based on plaintiff’s argument that
defendant failed to comply with Rule 26(a)(2), which requires the disclosure of expert testimony to
include a list of the witness’s publications. This argument is without merit as defendant’s disclosure
of expert witnesses directed plaintiff to Dr. Tubbs’s curriculum vitae, which evidences that Dr.
Tubbs does not have any publications. [Doc. 191-3].
Therefore, plaintiff’s motion to exclude Dr. Tubbs’s testimony on these grounds should be
denied.
2. Qualifications of Dr. Tubbs
Plaintiff argues that Dr. Tubbs’s export report should also be excluded because he does not
have the knowledge, skill, experience, training, or education in oral or maxillofacial surgery
sufficient to qualify him as an expert.
Dr. Tubbs has been a board-certified physician in family medicine since July 1999, has
served as a Medical Director for 10 detention centers since 2002, and practiced at the Utah State
Prison as a primary care provider from 1999 to 2015. Dr. Tubbs is a certified provider by the
National Correctional Commission on Health Care and a member of the American Academy of
Family Physicians and American Board of Family Physicians. Throughout his 16-year career as a
Medical Director, Dr. Tubbs has overseen the health care of over 1,500 incarcerated individuals.

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Dr. Tubbs testified in his expert report that he supervises Physician Assistants who provide the
majority of patient care in the detention centers he oversees.
The Court rejects plaintiff’s argument that Dr. Tubbs is not qualified to proffer an opinion
as to the appropriate standard of care for a jaw injury within a detention center. The fact that Dr.
Tubbs is not an oral or maxillofacial surgeon does not disqualify him as an expert. To the contrary,
his specialized training and extensive experience as a family practice physician at the Utah State
Prison and a Medical Director for multiple detention centers provides a sufficient basis for him to
offer an opinion on whether the Missouri Department of Corrections and its medical staff provided
plaintiff with the correct standard of care based on plaintiff’s medical history and complications.
An expert may be qualified by “knowledge, skill, experience, training, or education.” Fed.
R. Evid. 702; see Jaurequi v. Carter Mfg. Co., Inc., 173 F.3d 1076, 1081 (8th Cir. 1999). Rule 702
specifically contemplates that practical training and experience, as well as academic training and
credentials, may be the basis of expert testimony. Federal Crop Ins. Corp. v. Hester, 765 F.2d 723,
728 (8th Cir. 1985). “The only question relevant to the admissibility of . . . scientific evidence is
whether it is sufficiently reliable and relevant to assist the jury’s determination of a disputed issue.”
Bonner v. ISP Technologies, Inc., 259 F.3d 924, 929 (citing Daubert, 509 U.S. at 594-95). The
Court concludes that Dr. Tubbs’s testimony meets this standard. Plaintiff’s concerns are proper
subjects for plaintiff’s own expert testimony and for thorough cross-examination of Dr. Tubbs
regarding his education and credentials. Plaintiff had ample time to take Dr. Tubbs’s deposition
within the deadlines provided by this Court but chose not to do so.
Therefore, plaintiff’s motion to exclude Dr. Tubbs’s testimony on these grounds should
be denied.

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3. Reliability of Dr. Tubbs’s Expert Report
Plaintiff argues that Dr. Tubbs’s expert report should also be excluded because he has not
shown that he used reliable principles and methods to form his opinions, such as the “differential
diagnosis method.”
The fact that Dr. Tubbs did not include a differential diagnosis3 does not render his opinion
unreliable under Daubert. Plaintiff overstates the scope of Dr. Tubbs’s testimony. The expert report
focuses not on causation, but on his opinion for the general standards of care required of all
practitioners with respect to an inmate with a jaw fracture and other medical complications, which
is an area squarely within Dr. Tubbs’s expertise as a detention center family practice physician and
medical director.
According to Dr. Tubbs, plaintiff presented with a non-healing jaw fracture after undergoing
two oral surgeries and concurrently suffering from multi-vascular disease and stroke. After review
of plaintiff’s medical records, prison records, medication lists, and deposition transcripts of the
medical professionals who provided plaintiff with treatment during the relevant times, Dr. Tubbs
opined that the standard of care for any physician would have been to deny a third oral surgery
because “a significant head and neck surgery to repair [plaintiff’s] jaw could precipitate another
myocardial infarction, cerebrovascular event, cardiopulmonary compromise or seizure activity.”
Tubbs Suppl. Report at 19. To the extent that there is a general standard of care regarding the
approval of surgery for higher risk patients suffering from stroke and cardiac issues, Dr. Tubbs is
able to offer expert testimony.

3

A differential diagnosis is “the determination of which of two or more diseases with similar
symptoms is the one from which the patient is suffering, by a systematic comparison and contrasting
of the clinical findings.” Stedman’s Medical Dictionary 492 (27th ed. 2000).
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The Court finds that plaintiff’s objections to Dr. Tubbs’s testimony go to its weight rather
than its admissibility because his opinion is supported by the relevant facts of the case. See
Nebraska Plastics, Inc., 408 F.3d at 416 (a motion to exclude should be granted only “if the expert’s
opinion is so fundamentally unsupported that it can offer no assistance to the jury.”). Plaintiff’s
assertions concerning flaws in Dr. Tubbs’s methodology are proper subjects for plaintiff’s own
expert testimony and for cross-examination before the trier of fact.
Therefore, this aspect of plaintiff’s motion to exclude Dr. Tubbs’s testimony should be
denied.
Accordingly,
IT IS HEREBY ORDERED that plaintiff David A. Severance’s motion to exclude expert
testimony of Dr. Allen Sclaroff is DENIED. [Doc. 187]
IT IS FURTHER ORDERED that plaintiff David A. Severance’s motion to exclude expert
testimony of Dr. Kennon Tubbs is DENIED. [Doc. 185]
IT IS FURTHER ORDERED that by Wednesday, December 5, 2018, defendant Ernest
Jackson, through counsel, shall submit to plaintiff’s counsel a list of all cases in which Dr. Allen
Sclaroff testified as an expert at trial or by deposition during the previous four years. If defendant
fails to comply timely and fully with this Order, plaintiff is directed to file a Status Report with the
Court, and the Court will exclude Dr. Sclaroff’s expert testimony.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 15th day of November, 2018.
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