Cutsinger v. Gyrus Acmi, Inc. et al

Filing 85

MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that consistent with the terms of this Memorandum and Order, plaintiff Elicia Cutsinger's Motion for Leave to Amend Case Management Order and Relief from Treating Physician Expert Report Req uirement of Section 4(B)(i) with Respect to Brian Van Tine, M.D., is GRANTED to the extent that Brian Van Tine, M.D., need not submit a written expert report pursuant to Fed. R. Civ. P. 26(a)(2)(B). [Doc. 67]. Signed by District Judge Charles A. Shaw on 11/20/2018. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ELICIA CUTSINGER,
Plaintiff,
v.
GYRUS ACMI, INC., et al.,
Defendants.

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No. 4:18-CV-4 CAS

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Elicia Cutsinger’s “Motion for Leave to Amend
Case Management Order and Relief from Treating Physician Expert Report Requirement of Section
4(B)(i) with Respect to Brian Van Tine, M.D.” Defendants Gyrus ACMI, Inc., Gyrus ACMI, L.P.,
Olympus Corporation of the Americas, and Olympus America Inc. (collectively, “the Defendants”)
oppose the motion and have filed a memorandum in opposition. The motion is fully briefed and ripe
for review. For the following reasons, the Court will grant plaintiff the relief she requests.
Background
In her Complaint, plaintiff alleges that in 2013 she underwent a laparoscopic surgical
procedure in which the surgeon used a device, the GYRUS LPM Plasma Morcellator, to morcellate,
or cut into small fragments, her uterus. Plaintiff alleges the Defendants marketed, distributed, and/or
sold the GYRUS LPM Plasma Morcellator. She alleges subsequent to that surgery, she was
diagnosed with leiomyosarcoma, a deadly form of uterine sarcoma, and that the malignant cells were
spread throughout her abdomen and pelvis by the GYRUS LPM Plasma Morcellator, worsening her
condition. Plaintiff has undergone extensive treatment for cancer, and one of her treating physicians
is Brian Van Tine, M.D., a medical oncologist at Washington University in St. Louis.

Plaintiff filed her Complaint in this Court on January 2, 2018. The parties submitted their
Joint Proposed Scheduling Plan (“JSP”) on April 12, 2018. The Court issued its Case Management
Order (“CMO”) on April 25, 2018, which substantially adopted the dates proposed by the parties
in their JSP. Subsection 4(b) of the CMO provides:
(i)

Plaintiff shall disclose all expert witnesses and shall provide the reports
required by Rule 26(a)(2), Fed. R. Civ. P., by October 5, 2018. Plaintiff's
expert witnesses shall be deposed by November 14, 2018. Treating
physicians shall be considered expert witnesses under Rule 26(a)(2) to the
extent they give testimony as to causation or prognosis.

(ii)

Defendants shall disclose all expert witnesses and shall provide the reports
required by Rule 26(a)(2), Fed. R. Civ. P., by December 7, 2018.
Defendants' expert witnesses shall be deposed by January 4, 2019.

Doc. 27 at 2 (emphasis in original). Discovery is set to close in this case on January 4, 2019. Trial
is set for June 10, 2019.
On October 5, 2018, plaintiff provided defendants her Rule 26(a)(2) expert disclosures.
Plaintiff disclosed three retained experts and a number of non-retained experts, including Dr. Van
Tine. Plaintiff did not provide a written expert report for Dr. Van Tine.
Prior to plaintiff’s expert disclosures, plaintiff’s counsel deposed Dr. Van Tine on
September 17, 2018.1 At the deposition, which was videotaped, Dr. Van Tine gave prognosis and
causation opinions. Defense counsel was present at the deposition, but she did not question Dr. Van
Tine. The deposition was limited in time and was not completed. It has been continued to December
7, 2018, the date defendants’ disclosures are due.

1

Dr. Van Tine was also deposed on April 20, 2018, regarding plaintiff’s treatment and his
opinion regarding her prognosis at the time. The deposition was taken in conjunction with plaintiff’s
motion to expedite the trial setting, which the Court denied by Order dated May 24, 2018. Doc. 41.
2

In her motion, plaintiff asks that she not be required to submit a written expert report for Dr.
Van Tine because she is not getting cooperation from the doctor. Plaintiff’s counsel was informed
by Washington University that Dr. Van Tine cannot be retained as an expert witness in this case
because he is the plaintiff’s treating physician. Dr. Van Tine is represented by counsel, and
plaintiff’s counsel has been informed that pursuant to a Washington University policy, Dr. Van Tine
cannot meet with outside counsel except during depositions. Plaintiff counsel has inquired as to
whether Dr. Van Tine would be permitted to submit a Rule 26 expert report. Plaintiff’s counsel is
awaiting clarification on the issue, but states he has been informed that due to Dr. Van Tine’s
teaching commitments, it is unlikely he would have the time to prepare a Rule 26 expert report, even
if he were permitted to do so.
Defendants oppose plaintiff’s motion and argue it is untimely because plaintiff has known
for six months that Dr. Van Tine would not be able to provide a written expert report, and yet she
waited until after the expert disclosure deadline to file her motion. Defendants also argue that Dr.
Van Tine’s unavailability to write a written expert report does not excuse non-compliance with the
CMO or provide good cause to modify the CMO. Defendants argue that they would be prejudiced
by plaintiff’s failure to provide a written expert report from Dr. Van Tine because deposition
testimony is not a substitute for a written report, especially when the testimony will occur
simultaneously with (or even after) defendants’ expert disclosure deadline.
Discussion
From the briefing, it appears both plaintiff and defendants are under the impression that the
Court’s CMO and the Federal Rules of Civil Procedure require written expert reports from all
treating physicians who will testify as to causation or prognosis. This is not the case.
Rule 26(a)(2) governs the disclosure of expert testimony, and states in relevant part:
3

(2)

Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party
must disclose to the other parties the identity of any witness it may use at trial to
present evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or
ordered by the court, this disclosure must be accompanied by a written
report—prepared and signed by the witness—if the witness is one retained or
specially employed to provide expert testimony in the case . . . . The report must
contain:
(i) a complete statement of all opinions the witness will express and the basis
and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored
in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony
in the case.
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or
ordered by the court, 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 Rule of Evidence 702, 703, 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).2 Under Rule 26, all witnesses who will give expert testimony must be
disclosed, but only witnesses “retained or specially employed to provide expert testimony” must
submit written expert reports. Fed. R. Civ. P. 26(a)(2)(B). Experts who are not retained or specially

2

Subsection (a)(2) of Rule 26 was amended in April 2010, and the amendment became
effective December 1, 2010. In support of their position, defendants cite a number of cases decided
by the undersigned, e.g., Mosely v. Highsmith, No. 4:07-CV-1578 CAS, 2010 WL 438612, at *1-2
(E.D. Mo. Oct. 29, 2010); Metcalf v. Lowe’s Home Centers, Inc., 4:09-CV-14 CAS, 2010 WL
1657424, at *3 (E.D. Mo. Apr. 26, 2010). These cases were decided prior to the effective date of
the 2010 amendment and are not persuasive here.
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employed to provide expert testimony are not required to submit written expert reports. Fed. R. Civ.
P. 26(a)(2)(C).
Subsection 26(a)(2)(C) was added in 2010 to mandate additional disclosures from experts
who are not required to provide written expert reports. According to the Advisory Committee, the
amendment was intended to “resolve[ ] a tension that has sometimes prompted courts to require
reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement. An
(a)(2)(B) report is required only from an expert described in (a)(2)(B).” Fed. R. Civ. P. 26 Advisory
Committee’s Note to 2010 Amendment. The Committee further explained that “[a] witness who
is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also
provide expert testimony under Evidence Rule 702, 703, or 705. Frequent examples include
physicians or other health care professionals and employees of a party who do not regularly provide
expert testimony. Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the
disclosure required under Rule 26(a)(2)(C).”3 Id.
The Eighth Circuit Court of Appeals recently addressed Rule 26(a)(2)(B) and (C), and
concluded that “the nature and extent of the required disclosure turns on whether or not the expert
witness is ‘retained or specifically [sic] employed to provide expert testimony in the case.’”
Vanderberg v. PetCo Animal Supplies Stores, Inc., 906 F.3d 698, 702 (8th Cir. 2018) (quoting Fed.
R. Civ. P. 26(a)(2)(B)). “The disclosure rule is less demanding for experts that are not specifically
[sic] employed or retained for litigation, such as treating physicians.” Id. (emphasis added).

3

The disclosure requirement under subsection (a)(2)(C) is much less extensive than what is
required for a written report under subsection (a)(2)(B), and the Committee has cautioned that
“[c]ourts must take care against requiring undue detail, keeping in mind that these witnesses have
not been specially retained and may not be as responsive to counsel as those who have.” Fed. R.
Civ. P. 26 Advisory Committee’s Note to 2010 Amendment.
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The Court’s CMO establishes deadlines for when the parties are to disclose expert witnesses
and provide reports required by Rule 26(a)(2). The CMO does not mandate that treating physicians
must submit written expert reports under subsection (a)(2)(B), only that treating physicians “shall
be considered expert witnesses under Rule 26(a)(2) to the extent they give testimony as to causation
or prognosis.” Doc. 27 at 2. A treating physician would be required to submit a written expert
report only if he or she is “retained or specially employed to provide expert testimony in the case.”
Fed. R. Civ. P. 26(a)(2)(B); see also Vanderberg, 906 F.3d at 702.
Plaintiff disclosed Dr. Van Tine as an expert on October 5, 2018. Dr. Van Tine was
disclosed as a non-retained expert, and it is apparent from the record before the Court that he has
not been retained or specially employed to provide expert testimony in this case. Plaintiff’s counsel
is not able to speak with Dr. Van Tine outside of depositions, and Dr. Van Tine is unable or
unwilling to provide a written expert report. This is exactly the situation subsection (a)(2)(C) was
designed to address. The Court finds Dr. Van Tine has not been retained or specially employed to
provide expert testimony in this case and, therefore, Dr. Van Tine need not submit a written expert
report under Rule 26(a)(2)(B). Rather plaintiff need only have provided disclosures as to Dr. Van
Tine pursuant to subsection (a)(2)(C).4 The Court will grant plaintiff the relief she requests – Dr.
Van Tine need not submit a written expert report – but finds there is no need to amend subsection
4(b) of the CMO.

Accordingly,

IT IS HEREBY ORDERED that consistent with the terms of this Memorandum and Order,
plaintiff Elicia Cutsinger’s Motion for Leave to Amend Case Management Order and Relief from

4

On October 5, 2018, plaintiff provided defendants with “Plaintiff’s Rule 26(a)(2) Disclosure
of Expert Witnesses,” which disclosed Dr. Van Tine as a non-retained witness, gave the subject
matter on which he was expected to present evidence, and summarized his previous opinion
testimony. Doc. 67-4 at 10.
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Treating Physician Expert Report Requirement of Section 4(B)(i) with Respect to Brian Van Tine,
M.D., is GRANTED to the extent that Brian Van Tine, M.D., need not submit a written expert
report pursuant to Fed. R. Civ. P. 26(a)(2)(B). [Doc. 67]

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this

20th

day of November, 2018.

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