Bowen et al v. Allied Property and Casualty Insurance Company

Filing 65

ORDER granting in part and denying in part 56 Motion to Exclude the July 2012 expert opinions of Dr. Essay. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JACQUELINE E. BOWEN, Individuals; and
STEPHEN T. BOWEN, Individuals;
4:11CV3163
Plaintiffs,
vs.

MEMORANDUM AND ORDER

ALLIED PROPERTY AND CASUALTY
INSURANCE COMPANY, an Iowa
Corporation; d/b/a Allied Insurance, a
Nationwide Company;
Defendant.
The plaintiffs have moved to exclude the supplemental opinions of defendant’s
retained expert, Dr. Phillip E. Essay, regarding the following topics:
1)

Jacqueline Bowen’s history of neck and upper back pain;

2)

the cause of Jacqueline Bowen’s neck and upper back pain;

3)

the medical necessity of the suprascapular nerve block treatment performed by
Dr. Lindley on Jacqueline Bowen; and

4)

the medical necessity of the opiate treatment received by Jacqueline Bowen
after April 30, 2008.

(Filing No. 56). Having reviewed the evidence, the plaintiffs’ motion will be granted in part
and denied in part as discussed below.

FACTS OF RECORD
In this non-jury case, the court must decide the nature and extent of Jacqueline
Bowen’s injuries proximately caused by a motor vehicle collision that occurred on
September 28, 2007; whether, and to what extent, the medical care she received was
necessary for the treatment of her injuries; and the reasonable value of any medical care she
is reasonably certain to need in the future.

Under the court’s Final Progression Order, the plaintiffs’ deadline for serving
complete expert disclosures was March 30, 2012, and the defendant’s expert disclosure
deadline was May 28, 2012. (Filing No. 13). To that end, the plaintiffs disclosed Jacqueline
Bowen’s treating medical providers, David A. Lindley, D.O. and Pedro Perez, M.D. as
medical experts; the defendant timely disclosed Phillip E. Essay, M.D. and John Goldner,
M.D. as retained medical experts. (Filing No. 58-2).

The defendant deposed Dr. Perez on May 3, 2012 in Grand Island, Nebraska. (Filing
No. 60-2). Dr. Perez provided medical treatments to Jacqueline Bowen for pain at St.
Francis Hospital in Grand Island, Nebraska. Plaintiffs’ counsel performed only a limited
examination of Dr. Perez during the defense deposition, and he did not perform an additional
deposition for use at trial.
The defendant’s expert disclosures were served on May 29, 2012. (Filing No. 58-2).
On May 30, 2012, the parties agreed, through counsel, to waive the issue of the
unavailability of expert witnesses so that expert witness testimony could be presented by
deposition at trial. (Filing No. 58-1 (Summerlin declaration), at CM/ECF p. 1, ¶ 3).
Plaintiffs’ designated medical expert, Dr. Lindley, was deposed on June 14, 2012.
(Filing No. 58-1 (Summerlin declaration), at CM/ECF p. 1, ¶ 4; filing no. 63-5 (Lindley
depo.)). Dr. Lindley directly addressed the initial opinions disclosed by Drs. Essay and
Goldner. With regard to the opinions of Dr. Essay, Dr. Lindley opined that Jacqueline
Bowen’s course of aggressive physical therapy, pulse radio frequency treatment, and spinal
cord stimulation were reasonable and medically necessary.
Dr. Essay’s deposition was scheduled for July 19, 2012. On June 20, 2012, plaintiffs’
counsel advised defense counsel that the plaintiffs reserved the right to depose Dr. Perez
following Dr. Essay’s deposition, and he disclosed additional medical and prescription bills
and St. Francis Hospital records for Jacqueline Bowen’s medical care. (Filing No. 60-3).

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In preparation for his deposition, Dr. Essay reviewed the deposition testimony of Dr.
Perez, Dr. Lindley, and Dr. Goldner. On July 18, 2012, Dr. Essay advised defense counsel
that he wanted to address some of the issues discussed in the Perez, Lindley, and Goldner
depositions which may not have been directly addressed in his own report. (Filing No. 63-2,
at CM/ECF p. 2). Defense counsel suggested delaying Dr. Essay’s deposition so that a new
or more detailed expert disclosure could be prepared and served. Plaintiffs’ counsel objected
to any supplemental disclosure, stating:
We relied upon your expert witness disclosures which were filed in May to
take the trial depositions of Ms. Bowen’s treating physicians. . . . I will not
agree that you can now supplement those disclosures to identify additional
opinions from Dr. Essay that were not a part of his original disclosure. We do
not have time to redepose Ms. Bowen’s doctors (one of whom has now moved
out of the country) to provide them with an opportunity to respond to any new
opinions from Dr. Essay.
(Filing No. 63-2, at CM/ECF p. 1). But plaintiffs’ counsel did agree to delay Dr. Essay’s
deposition, explaining defense counsel had agreed to file a motion seeking leave to
supplement Dr. Essay’s opinions so the issue could be decided by the court. (Filing No. 633, at CM/ECF p. 1).

Defense counsel served an additional expert witness report by Dr. Essay on July 20,
2012. (Filing No. 58-1 (Summerlin declaration), at CM/ECF p. 2, ¶ 5; filing no. 58-4). The
plaintiffs have moved to strike the supplemental expert report, stating:
Dr. Essay’s initial expert witness report did not offer any opinion regarding the
following topics: (1) Jacqueline Bowen’s history of neck and upper back pain;
(2) the causation of Jacqueline Bowen’s neck and upper back pain; (3) the
medical necessity of the suprascapular nerve block treatment performed by Dr.
Lindley on Jacqueline Bowen; and (4) the medical necessity of the opiate
treatment received by Jacqueline Bowen.
(Filing No. 58-3). The following compares Mr. Essay’s initial and July 2012 reports.

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The May 2012 initial report stated:

The July report stated:

“Mrs.Bowen was injured in a motor
vehicle accident on September 28,
2007. The mechanism of injury
and
her ongoing pain complaint was
consistent with cervicalgia
secondary to whiplash syndrome. . .
. Mrs. Bowen’s ongoing pain is
related to soft tissue/myofascial
strain and injury to the posterior
elements of the cervical spine.”
(Filing No. 58-3). Dr. Essay’s
initial report does not discuss
Jacqueline Bowen’s pre-accident
history of neck and back pain.
(Filing No. 58-3).
The term “suprascapular nerve
block” is not mentioned, although
the report does state “the primary
source of [plaintiff’s] pain
was myofascial and not
neuropathic,” and a “medial branch
block” may assist in diagnosing
neck and scapular pain. (Filing No.
58-3).
“Numerous medications were
prescribed in an attempt to palliate
her symptoms. . . .[T]hose
medications were medically
indicated and appropriate. The
majority of those medications have
since been appropriately
discontinued by Dr. Perez.” (Filing
No. 58-3, at CM/ECF p.2).

Contrary to Drs. Perez’ and Lindley’s
testimony, Jacqueline Bowen did have
chronic neck and upper back pain prior
to the September 28, 2007 accident.
The report includes a detailed outline
of Jacqueline Bowen’s prior medical
history.
Note: Based on the initial report, Dr.
Essay was not asked to render
causation opinions, but rather opinions
regarding Jacqueline Bowen’s
“pharmacologic treatment, the use of
spinal cord stimulation, the use of
pulsed radiofrequency treatment, and
the use of physical therapy as part of
her treatment plan.” (Filing No. 58-3,
at CM/ECF p. 2).
As stated in the testimony of Dr.
Perez, (see filing no. 62-2, at
CM/ECF p. 19, (74:13-75:20), the
suprascapular nerve block performed
by Dr. Lindley may be used for
diagnosis but was not a proven
method for treating Jacqueline
Bowen’s injuries: It was not
medically necessary. (Filing No. 584).
As stated in the testimony of Dr.
Perez, (see filing no. 62-2, at
CM/ECF p. 15, (57:12-24), who
began treating Jacqueline Bowen on
October 12, 2010, long-term use of
opiates for treatment of myofacial
pain is not appropriate: The opiates
prescribed after April 30, 2008 were
not medically necessary. (Filing No.
58-4).

Plaintiff’s counsel responded:
We object to any opinions from Dr. Essay that go beyond the opinions
expressed in his original report, since these opinions were not timely disclosed

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pursuant to the Court’s progression schedule and since we are no longer able
to get a response from Ms. Bowen’s treating physicians.
(Filing No. 63-4, at CM/ECF p 1). Counsel for the plaintiffs explained that plaintiffs’ expert
witnesses are “now unavailable for deposition, and in any event, there is insufficient time to
reconvene said depositions prior to trial.” (Filing No. 58-1 (Summerlin declaration), at
CM/ECF p. 2, ¶ 5).
Defense counsel did not move for leave to supplement Dr. Essay’s initial opinions;
plaintiffs’ counsel did not move to strike those opinions prior to deposing Dr. Essay.
Plaintiffs’ counsel deposed Dr. Essay on August 1, 2012. Dr. Essay was questioned and
provided testimony regarding both his initial and July expert disclosures. (Filing No. 58-5).
Plaintiffs’ counsel has not scheduled or attempted to schedule an in-person, videoteleconference, or telephone deposition of Dr. Perez following Dr. Essay’s deposition, and he
has expressed no intention of doing so. Although plaintiffs’ counsel states plaintiffs’ medical
experts are no longer available for a deposition, he has provided no specific factual support
for that statement. (Filing No. 61-1, at CM/ECF p. 2, ¶¶ 5-7).
Plaintiffs’ counsel moved to exclude Dr. Essay’s testimony regarding the July 2012
opinions one week before the start of trial.

LEGAL ANALYSIS
Based on the parties’ briefs, the court must consider the following issues:
1)

Was the July 2012 disclosure of Dr. Essay’s additional expert report untimely?

If not, absent any evidence of prejudice to the plaintiffs, there is no basis for excluding Dr.
Essay’s opinions.
2)

If the July 2012 disclosure was untimely, applying Rule 16 of the Federal

Rules of Civil Procedure, is there a basis for extending the court-imposed expert disclosure

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deadline? If so, absent any evidence of prejudice to the plaintiffs, Dr. Essay’s July 2012
opinions will not be excluded.
3)

If Dr. Essay’s July 2012 expert disclosure was untimely and extending the

disclosure deadline is not warranted under Rule 16, what is the applicable remedy or sanction
under Rules 37 and 26; that is, should July 2012 opinions be excluded?
1.

Timeliness of the July 2012 Disclosure.

Citing Rule 26(e) of the Federal Rules of Civil Procedure, the defendant claims it
timely disclosed Dr. Essay’s opinions in May of 2012, and the July 2012 expert disclosure
was a timely supplement or correction to Essay’s prior report.
Rule 26(e) requires a party to “supplement or correct” a prior disclosure based on
information later acquired.

It imposes a duty on the producing party to supplement

information that is incorrect or incomplete. But it does not permit adding claims and issues
which could have, and should have been included in the original report, and it “does not give
the producing party a license to disregard discovery deadlines and to offer new opinions
under the guise of the ‘supplement’ label.”

Allgood v. Gen. Motors Corp., 2007 WL

647496, at *3 (S.D. Ind. Feb. 2, 2007)(citing Beller ex rel. Beller v. United States, 221
F.R.D. 689, 695 (D.N.M. 2003)(Rule 26(e) “does not give license to sandbag one’s opponent
with claims and issues” which should have been raised earlier)).

See also Lindner v.

Meadow Gold Dairies, Inc., 249 F.R.D. 625, 640 (D. Hawai‘i 2008); Palmer v. Asarco Inc.,
2007 WL 2254343, at *4 (N.D. Okla. Aug. 3, 2007);
Under Rule 26(e), a party is under a duty to supplement “at appropriate intervals its
disclosure under subdivision (a) if the party learns that in some material respect the
information disclosed is incomplete or incorrect and if the additional and corrective
information has not otherwise been made known to the other parties during the discovery
process or in writing. . . . ” Although parties are permitted to supplement expert disclosures,
(Leviton Mfg. Co., Inc. v. Nicor, Inc., 2007 WL 1306759 *4 (D.N.M. April 20, 2007)
(quoting Beller v. United States, 221 F.R.D. 696, 701 (D.N.M.2003)),

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A supplemental expert report that states additional opinions or rationales or
seeks to “strengthen” or “deepen” opinions expressed in the original expert
report exceeds the bounds of permissible supplementation and is subject to
exclusion under Rule 37(c)(1). “To rule otherwise would create a system
where preliminary [expert] reports could be followed by supplementary
reports and there would be no finality to expert reports, as each side, in order
to buttress its case or position, could ‘supplement’ existing reports and modify
opinions previously given. This result would be the antithesis of the full expert
disclosure requirements stated in Rule 26(a).
Cook v. Rockwell Int'l Corp., 2006 WL 3533049 *87 (D. Colo. Dec.7, 2006).
Having compared Dr. Essay’s two reports, the court is convinced the July 2012
opinions are new or supplemental opinions, not corrections or explanations of Dr. Essay’s
former opinions. The defendant has failed to show that the opinions disclosed by Dr. Essay
in July 2012 are based on facts that were unavailable before the May 2012 expert deadline.
The opinions in Dr. Essay’s July 2012 expert disclosure were untimely disclosed.

2.

Extending the Expert Disclosure Deadline: Good Cause under Rule 16 .

Pursuant to Rule 16(b)(4), a case management order setting progression deadlines
“may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P.
16(b)(4). “The primary measure of Rule 16's ‘good cause’ standard is the moving party's
diligence in attempting to meet the case management order's requirements. . . . , [but the]
‘existence or degree of prejudice to the party opposing the modification’ and other factors
may also affect the decision.” Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001).
In general, the court will not consider prejudice, or the lack thereof, if the movant has not
been diligent in meeting the scheduling order’s deadlines. Sherman v. Winco Fireworks, Inc.,
532 F.3d 709, 716-17 (8th Cir. 2008).

The movant’s level of diligence and the degree of prejudice to the parties are both
factors to consider when assessing if good cause warrants extending a case management
deadline, with the movant’s diligence being the first consideration and the extent of prejudice
to either party considered only after a requisite threshold finding of due diligence. Sherman,

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532 F.3d at 716-17; Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006).
In all cases involving the interpretation and application of the Federal Rules of Civil
Procedure, the court must fairly and with equal consideration to both parties balance the
obligations and positions of the parties to promote the “just, speedy, and inexpensive
determination of every action.” Fed. R. Civ. P. 1; Marmo, 457 F.3d at 759.

The defendant has failed to show Dr. Essay was unable to examine the facts and
records underlying his July 2012 opinions prior to the May 2012 expert disclosure deadline.
The defendant has not shown due diligence sufficient to justify extending the expert deadline
set in the court’s progression order.

3.

Sanction for Untimely Disclosure of Expert Testimony: Rules 26 and 37.

A Rule 26 disclosure by a retained witness, or person “specially employed to provide
expert testimony in the case whose duties as an employee of the party regularly involve
giving expert testimony,” must “be accompanied by a written report prepared and signed by
the witnesses.” Fed.R.Civ.P. 26(a)(2)(B). Failure to timely and adequately disclose an expert
witness as required by rule 26(a)(2)(B) can justify exclusion of testimony at trial.
Fed.R.Civ.P. 37(c)(1). Crump v. Versa Products, Inc. 400 F.3d 1104, 1110 (8th Cir.
2005)(upholding district court’s decision to allow testimony of undisclosed experts where
opposing party provided basis for expert opinion’s during discovery and made experts
available for deposition).
But the failure to timely comply with Rule 26(a) does not automatically lead to the
exclusion of evidence. See Doe v. Young, 664 F.3d 727, 734 (8th Cir. 2011); Wegener v.
Johnson, 527 F.3d 687, 692-93 (8th Cir. 2008) (citing cases). The court must undertake a
balancing test to determine if the deficient disclosure is either substantially justified or
harmless and, therefore, whether exclusion of the evidence is a proper remedy. Id. The
Eighth Circuit has consistently warned against discovery sanctions which result in the
dismissal of claims. See Dunning v. Bush, 536 F.3d 879, 890 (8th Cir. 2008) (“a dismissal

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sanction is not warranted, except in cases of egregious conduct. The district court should
consider a lesser sanction, if any, before imposing one that resulted in dismissal of a claim).
But see White v. Howmedica, Inc., 490 F.3d 1014, 1016 (8th Cir. 2007) (excluding
testimony of undisclosed expert leading to dismissal of the products liability case on
summary judgment).
Dr. Essay’s July 2012 report provides three new opinions: 1) Jacqueline Bowen had
pre-existing chronic back and neck problems and injuries; 2) Suprascapular nerve block
treatments were not medically necessary; and 3) Jacqueline Bowen’s use of opiates after
April 30, 2008 was improper and not medically necessary.
Based on Dr. Essay’s initial report, as of May 2012, Dr. Essay was not asked to
render a causation opinion or an opinion regarding any underlying pre-existing condition.
From the record, it appears that task on behalf of the defendant was assigned to Dr. Goldner.
There is nothing of record indicating that absent Dr. Essay’s causation testimony, defendant
will be unable to defend this case.

Under these circumstances, Dr. Essay will not be

permitted to testify that all or part of Jacqueline Bowen’s chronic neck and upper back pain
existed prior to the September 28, 2007 accident.
Dr. Essay’s initial report stated Jacqueline Bowen’s medication use, as reflected in the
medical records, was appropriate and medically necessary. His July 2012 appears to directly
contradict that opinion, at least as to opiates prescribed and used after April 30, 2008. Dr.
Essay will not be permitted to testify that opiate prescriptions were not medically necessary
after April 30, 2008.

As to the last topic, whether the suprascapular nerve block performed by Dr. Lindley
was medically necessary, it is unclear from the record whether this topic was actually
touched in Dr. Essay’s initial disclosure. It appears Dr. Essay agrees with Dr. Perez on this
topic. Therefore, even assuming the plaintiffs’ experts are unavailable, they will not be
harmed by admitting this testimony at trial. Finally, plaintiffs’ counsel was afforded a full

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opportunity to depose Dr. Essay regarding all his opinions, including the issue of using
suprascapular nerve blocks as a treatment modality for Jacqueline Bowen’s injury. Dr. Essay
will be permitted to testify regarding the propriety and necessity of suprascapular nerve
blocks for treating Jacqueline Bowen’s injuries.

Accordingly,
IT IS ORDERED that the plaintiffs’ motion to strike the July 2012 expert opinions of
Dr. Phillip E. Essay, (filing no. 56) is granted in part and denied in part as set forth herein.

August 13, 2012.

BY THE COURT:
s/ Cheryl R. Zwart
U.S. Magistrate Judge

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