Zhai v. Saint Francis Medical Center, et al

Filing 138

MEMORANDUM AND ORDER - that Defendants' motion to exclude the testimony of Dr. Daniel L. Menkes, M.D., (Filing No. 123 ), is granted. Ordered by Magistrate Judge Cheryl R. Zwart. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WENJIA ZHAI, Individually;
4:16CV3049

Plaintiff,
vs.

MEMORANDUM AND ORDER
CENTRAL NEBRASKA
ORTHOPEDICS & SPORTS
MEDICINE, P.C., a domestic
professional corporation; et. al;
Defendants.
Pending before the court is Defendants’ motion to exclude the expert opinions of
Plaintiff’s retained expert, Daniel L. Menkes, M.D. as untimely, an improper rebuttal
expert, and as offering opinions which do not supplement Plaintiff’s prior expert
disclosures. (Filing No. 123). For the reasons stated below, the motion will be granted.

FACTUAL BACKGROUND

Plaintiff filed a medical malpractice action alleging Defendants provided negligent
care and treatment for injuries Plaintiff sustained in a vehicular accident. Specifically,
Zhai alleges Defendants failed to timely recognize and treat his compartment syndrome,
resulting in nerve and muscle injuries. (Filing No. 3). Defendants dispute Plaintiff’s
causation allegations and the extent of Plaintiff’s injuries.

On November 18, 2016, the court entered a case progression order setting an
April 17, 2017 deadline for serving Zhai’s expert disclosures. (Filing No. 61). In addition
to Plaintiff’s treating physicians, six of whom were neurologists, Plaintiff timely disclosed
reports from six retained experts, including a general surgeon (A.L. Jackson Slappy,
M.D.), a pulmonologist (Thomas DeMarini, M.D.), an orthopedic surgeon (Jonathan J.
Paley, M.D.), a professional counselor and mental health practitioner (Michael

Newman), a life care planner (Shelly Kinney), and an economist (David Rosenbaum,
Ph.D.). (Filing Nos. 77-79). Plaintiff did not disclose a neurologist as a retained expert.
Thereafter, Defendants timely disclosed responsive experts.
After depositions we’re taken of Plaintiff’s experts, Plaintiff asked for leave to
disclose an expert who would discuss Plaintiff’s EMG testing results and how those
results may impact the core issue of medical causation presented in this case.
Defendants objected, arguing any such disclosure would be untimely—that neurological
interpretation of EMG testing was a necessary part of Plaintiff’s case-in-chief from the
outset and disclosing an expert on that topic only after Defendants’ disclosures were
served was untimely. See Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716-17 (8th
Cir. 2008); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006).
Plaintiff responded that his proposed additional expert disclosure would rebut
Defendants’ experts and/or provide supplemental opinions.
After listening to the parties’ arguments, the court concluded it could not decide
the dispute without full motion practice, including knowing what Plaintiff’s additional
expert intended to say. Rather than delay the case for that step, on September 12,
2017, the court granted Plaintiff leave to disclose an additional expert “focused on EMG
testing.” (Filing No. 111). However, the court explicitly stated (and cautioned) that any
such disclosure was open to challenge if it neither rebutted Defendants’ experts nor
properly supplemented Plaintiff’s prior expert disclosures in accordance with the federal
rules. (Id).

On October 27, 2017, Plaintiff disclosed Daniel L. Menkes, MD, a neurologist, as
an additional retained expert. (Filing No. 117). Defendants argue Dr. Menkes’ proposed
opinions are not “focused on EMG testing”—the sole area of additional expert
disclosures permitted under the court’s order.

In addition, they argue Dr. Menkes’

opinions are neither rebuttal nor supplemental opinions within the meaning of the
federal rules. Defendants move to exclude Dr. Menkes as an expert. (Filing No.123).

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The matter is now fully submitted. Upon review of the parties’ arguments and
evidence, the court finds Defendants’ motion should be granted.

ANALYSIS
Exceeding the Scope of the Court’s Order.

I.

The court granted Plaintiff leave to disclose an additional expert or expert
opinions “focused on EMG testing.” (Filing No. 111). Instead of remaining within the
confines of this order, Plaintiff retained an additional expert to “determine the most likely
cause of Zhai’s resultant nerve and muscle injuries.” (Filing No. 117). Menkes’ report
provides extensive opinions on causation which extends far beyond a focus on EMG
testing.

As stated by Defendants, “Dr. Menkes attempts to provide entirely new

opinions to fill the gaps in Zhai’s case left by the fact that he did not disclose a retained
neurologist within the Court’s deadline.” (Filing No. 124 at CM/ECF p. 17). The court
will not permit Plaintiff to circumvent the expert witness deadlines within the scheduling
order by ignoring the limiting language of its later order granting leave to disclose an
additional expert or expert opinions.

II.

Rebuttal and Supplemental Opinions

Assuming portions of Dr. Menkes’ opinion report is within the confines of my prior
order, the court must nonetheless determine whether the opinions focused on EMG
testing are either rebuttal or supplemental opinions.

A. Rebuttal Experts.
Rebuttal experts must act to “explain, repel, counteract or disprove” evidence
raised by an adverse party. Marmo, Inc., 457 F.3d at 759 (internal citation omitted).
Under Fed. R. Civ. P. 26(a)(2)(D)(ii), rebuttal experts are those who present “evidence
that is intended solely to contradict or rebut evidence on the same subject matter

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identified by another party under Rule 26(a)(2)(B) or (C).” Fed. R. Civ. P. 26(a)(2)(D)(ii)
(emphasis added). Thus, proper rebuttal testimony should address only new arguments
raised by the adverse party that could not have been anticipated previously. See ADT
Sec. Servs., Inc. v. Swenson, 276 F.R.D. 278, 316 (D. Minn. 2011) (citing Eighth Circuit
law). Put differently, rebuttal testimony should not be a mere continuation of a party’s
case-in-chief. Marmo, 457 F.3d at 759.
As disclosed by Plaintiff himself, several of Plaintiff’s treating physician experts
discussed EMG testing as part of their differential diagnosis and treatment process.
(See Filing No. 77). Dr. Menkes’ expert report discusses EMG testing, among other
issues, developed and discussed by these treating physician experts, specifically
referencing Plaintiff’s initial expert reports. So even assuming that some of the opinions
Dr. Menkes proffers were appropriately “focused on EMG testing,” those opinions are
not rebuttal expert opinions—they do not address new or novel information introduced
by Defendants’ experts, or

medical causation issues or testing interpretation that

Plaintiff could not have reasonably foreseen when the case began.

B. Supplement Opinions.
A party must “supplement or correct” a previous disclosure that is “incomplete or
incorrect.” Fed. R. Civ. P. 26(e). A proper supplement does not attempt to gap-fill or
strengthen a party’s case-in-chief. Bowen v. Allied Prop. & Cas. Ins. Co., 2012 WL
3303266, at *4 (D. Neb. Aug. 13, 2012) (internal citation omitted). Allowing a
supplemental disclosure simply to enhance or expand on a previous expert disclosure
would be “the antithesis of the full expert disclosure requirements stated in Rule 26(a).”
Id. (emphasis added).

It does not appear from the record, and Plaintiff does not argue, that any
previously disclosed expert needed to correct, clarify or complete his or her previously
disclosed opinions. Thus, supplement, as intended by Fed. R. Civ. P. 26(e), is not
implicated on the facts presented.

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C. Substantially Justified Or Harmless.

When a party fails to provide information or identify a witness in compliance with
Rule 26(a) or (e), the district court has wide discretion to fashion a remedy or sanction
as appropriate for the particular circumstances of the case. Wegener v. Johnson, 527
F.3d 687, 692 (8th Cir. 2008) (holding that exclusion of untimely disclosed expert
testimony was “within the bounds of [the court’s] discretion”). Exclusion of evidence or
testimony is within the court’s proper discretion unless “substantially justified or
harmless.” Fed. R. Civ. P. 37(c)(1).

Here, no facts indicated a substantial justification

for the delay in disclosing the Dr. Menkes. Moreover, the error is not harmless when it
has the effect of causing delay or disrupting progression. Wegener, 527 F.3d at 692
(8th Cir. 2008) (reasoning that continuance or postponement of trial based on a delay in
disclosure of retained-expert can be harmful).

Accordingly,
IS IT ORDERED that Defendants’ motion to exclude the testimony of Dr. Daniel
L. Menkes, M.D., (Filing No. 123), is granted.

December 22, 2017.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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