McNeese v. United States of America

Filing 98

MEMORANDUM OPINION AND ORDER by District Judge Kea W. Riggs. The 90 Motion in Limine to Exclude Plaintiff's Expert Witness Testimony is GRANTED IN PART and DENIED IN PART. (ve)

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________

MARY F. McNEESE, as Personal
Representative and Spouse of
TINA MARIE McNEESE, Deceased,
Plaintiff,
v.

No. 1:17-cv-1164-KWR-KK

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court upon Defendant’s Motion to Exclude Expert
Testimony of Dr. Ronald Liss, filed on March 29, 2021. Doc. 90. Having reviewed the parties’
submissions and the relevant law, the Court finds that Defendant’s motion is well-taken in part
and, therefore, is GRANTED IN PART and DENIED IN PART.
BACKGROUND
This is a wrongful death and medical negligence action. Plaintiff alleges that the negligent
medical care and treatment by various medical providers at the Veterans Administration Medical
Center in Albuquerque (“VAMC”) resulted in the death of her spouse, Tina McNeese
(“McNeese”). The Complaint states that McNeese suffered from mitral valve prolapse (“MVP”),
and alleges that, despite presenting to the hospital with an “accumulation of symptoms,” VAMC
physicians failed to properly diagnose and timely treat her for infectious endocarditis, resulting in
her death. Specifically, the Complaint alleges that the various physicians should have but failed to
timely ordered blood cultures, which would have identified “streptococcus sanguinis and infective

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 2 of 17

endocarditis” leading to the proper course of treatment. The Complaint further alleges that the
treating physicians should have identified McNeese’s poor dentition as a potential source of
“infectious bacterial endocarditis” (bacterial infection of the heart) and had they directed her to
appropriate dental treatment, they could subsequently have timely performed lifesaving heart valve
surgery. The Complaint alleges that in 2015, during the course of her treatment, McNeese was
referred twice for dental consults or dental care but the VAMC denied the referrals because she
“did not meet the Veteran’s Administration criteria for dental care, although the proper criteria
include ‘medically indicated treatment’.” See Compl., ¶¶ 18-21, 24, 39, 44-47. Plaintiff asserted
claims of Negligence – Medical Malpractice (Count I) and Negligence (Count II) against VAMC.
Defendant contests Dr. Liss’ qualifications as an expert witness arguing: 1) Dr. Liss should
be limited to the opinions disclosed in his initial expert report; (2) his opinions within the report
should be excluded as unreliable and inadmissible; or, alternatively (3) should the Court deems his
testimony admissible, Dr. Liss should be limited to areas for which he is qualified, specifically, to
the field of emergency medicine. On June 7, 2021, the Court held a Daubert hearing at which time
Dr. Liss testified as to his conclusions and the basis for his “modifications” to his original expert
report.
LEGAL STANDARD
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education, may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods, and
(d) the expert has reliably applied the principles and methods to the facts
of the case.
2

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 3 of 17

Fed. R. Evid. 702. The touchstone of admissibility under Rule 702 is helpfulness to the trier of
fact. See Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 648 (10th Cir. 1991).
The gatekeeping function involves a two-step analysis. Milne v. USA Cycling Inc., 575
F.3d 1120, 1134 (10th Cir. 2009). First, the Court must determine whether the witness may be
qualified as an expert. To qualify as an expert, the witness must possess such “knowledge, skill,
experience, training, or education” in the particular field so that it appears that his or her opinion
rests on a substantial foundation and tends to aid the trier of fact in its search for the truth. LifeWise
Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004). “Rule 702 thus dictates a
common-sense inquiry of whether a juror would be able to understand the evidence without
specialized knowledge concerning the subject.” United States v. McDonald, 933 F.2d 1519, 1522
(10th Cir. 1991).
Second, the Court must determine whether the witness' opinions are reliable under the
principles set forth in Daubert and Kumho Tire. Ralston v. Smith & Nephew Richards, Inc., 275
F.3d 965, 969 (10th Cir. 2001). In Daubert, the Supreme Court identified five factors that may or
may not be pertinent in assessing reliability: (1) the theory or technique in question can be and has
been tested; (2) it has been subjected to peer review and publication; (3) it has a known or potential
error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether
it has attracted widespread acceptance within a relevant scientific community. 509 U.S. at 593–
94. When assessing the reliability of a proposed expert's testimony, the Court may consider the
Daubert factors to the extent relevant, which will depend on the nature of the issue, the expert’s
particular expertise, and the subject of his testimony. Kumho Tire, 526 U.S. at 150-51. “[W]hether
Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is
a matter that the law grants the trial judge broad latitude to determine.” Kumho, 526 U.S. at 139.
3

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 4 of 17

Rule 702 further requires that expert testimony is relevant. One aspect of relevance is that
the opinions have a sufficient factual basis and a reliable application of the methodology to the
facts. Daubert, 509 U.S. at 591. Expert witnesses may testify about ultimate issues of fact, but an
expert may not state legal conclusions drawn by applying the law to the facts. United States v.
Richter, 796 F.3d 1173, 1195 (10th Cir. 2015). Although an expert may not give an impermissible
legal conclusion, an expert may give testimony that embraces an ultimate issue so long as the
expert’s testimony assists, rather than supplants, the jury’s judgment. Id. (quoting United States v.
Dazey, 403 F.3d 1147, 1171-72 (10th Cir. 2005)); United States v. Schneider, 704 F.3d 1287, 1293
(10th Cir. 2013) (stating that Rule 704(a) allows expert opinion on an ultimate issue so long as he
explains basis for any summary opinion and does not simply tell the jury what result to reach).
“Permissible testimony provides the jury with the tools to evaluate an expert’s ultimate conclusion
and focuses on questions of fact that are amenable to the scientific, technical, or other specialized
knowledge within the expert’s field.” Richter, 796 F.3d at 1195.
Where an expert witness’s testimony is based on his experience, the expert witness must
explain how his experience leads to the conclusion reached, why that experience is a sufficient
basis for the opinion, and how that experience is reliably applied to the facts. See United States v.
Nacchio, 555 F.3d 1234, 1258 (10th Cir. 2009) (quoting Fed. R. Evid. 702 advisory committee’s
note (2000)).
The proponent of the expert bears the burden by a preponderance of the evidence to
establish that the requirements for admissibility have been met. See Nacchio, 555 F.3d at 1251.
Although the Court is required to conduct a Daubert examination of all experts before it, it need
only expressly address the specific objections before it. United States v. Avitia-Guillen, 680 F.3d
1253, 1259 (10th Cir. 2012) (“When a party fails to object to an expert's methodology, the district

4

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 5 of 17

court need not make explicit findings.”), citing United States v. Velarde, 214 F.3d 1204, 1209 n.3
(10th Cir.2000) (noting the defendant did not challenge the doctor's “credentials, expertise, or
qualifications to testify as an expert”); Macsenti v. Becker, 237 F.3d 1223, 1233 (10th Cir. 2001)
(specific findings on the record only required on party’s objection); Goebel v. Denver & Rio
Grande W. R.R. Co., 215 F.3d 1083, 1088 n.2 (10th Cir. 2000) (when no objection is raised, district
courts are not required to make “explicit on-the-record rulings” and, “we assume that the district
court consistently and continually performed a trustworthiness analysis sub silentio of all evidence
introduced at trial.”).
DISCUSSION
Plaintiff retained Dr. Liss as an expert specializing in emergency medicine, to opine on the
appropriate standard of care and whether the VAMC emergency and primary care physicians failed
to adhere to that standard in the course of treatment for McNeese. Doc. 91 at 3; see also Doc. 86
at 16 (Pretrial Order) (“[Dr. Liss] will also give his opinion as to the condition of the decedent’s
teeth based upon his training and experience as a physician and in emergency medicine and the
relation to the teeth and gums to the cause of death. And he will testify as to the poor
communication between the decedent’s primary care physicians and the specialists who diagnosed
and treated her, which he will state was below the appropriate standard of care and contributed to
or caused her death.”).
A.

Dr. Liss’ Qualifications as an Expert

Dr. Liss has an M.D. and is a Board Certified Emergency Medicine physician. Doc. 90-2
at 2. He is currently licensed to practice medicine in New Mexico and has over thirty-one years
of experience in the field. Doc. 90-1, Ex. A at 2. According to the initial expert report, among
other things, Dr. Liss “[] is a specialist in the diagnosing and referring of patients to the appropriate

5

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 6 of 17

medical specialists for the medical conditions of his patients…He has seen hundreds of patients in
similar condition as [McNeese], and has made referrals for treatment to the appropriate medical
specialists.” Id. at 3. The report notes that Dr. Liss has “not published for general review,” which
is reflected in his CV. Id. Additionally, his CV includes that he has not actively practiced medicine
since August of 2012 and has been “self-employed” as a “Consultant/Advisor” since then. Doc.
90-2 (Ronald A. Liss, M.D. CV).
After reviewing relevant documents for the case1, Dr. Liss compiled his initial report,
resulting in a series of “findings” relating to the adequacy of VAMC’s treatment of McNeese and
his opinion as to what contributed to her death. Without reference to any VAMC physician by
name, Dr. Liss concludes the following regarding McNeese’s treatment:
A) The failure of the Albuquerque VA system in "Toto" by failing to consider the
diagnosis of “infectious endocarditis” in their group differential diagnosis when
seen and evaluated for multiple visits to the deceased' primary care provider (at
least 6 visits), consultants (at least 3 appointments to Hemetology [sic]/Oncology)
, Cardiologists ([]at least 4 visits) : with patient complaints and review of systems
that included intermittent fevers, myalgias, flu-like symptoms, shortness of breath,
anemia of uncertain cause, and weakness, in the setting of known mitral valve
prolapse, with extremely poor dentition. This resulted in the direct and proximate
cause to fail to test for infectious bacterial endocarditis by doing the indicated and
necessary Blood Cultures, especially when febrile at appointments[.] This caused
extensive delays in the treatment of her endocarditis, which then led to the failure
to prevent her subsequent stroke and demise.
B). The failure of the Albuquerque VA system to approve her vitally necessary
dental treatment in a timely manner, even though 2 consultation requests reflected
the medical necessity's [sic] of this treatment IAW the dental clinic rules, directly
prevented the Thoracic Surgical team from replacing her diseased mitral valve and
thence the [] elimination of her progression of her infectious bacterial endocarditis
of her mitral valve.

1

Dr. Liss’ initial expert report does not state exactly which documents he reviewed. He prefaces his conclusions with,
“The facts revealed by the medical records…”, which the Court understands to indicate he at least reviewed the
medical records. In his subsequent Affidavit attached to Plaintiff’s Response in Opposition to the Motion to Exclude
his testimony, Dr. Liss states “I have thoroughly examined the medical records in this matter and have read the
depositions and statements of the physicians involved.” Doc. 91-2 at ¶ 12. At the hearing on June 7, 2021, Dr. Liss
confirmed that he reviewed these documents.

6

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 7 of 17

C). The failure of the primary care doctor and consultants to recognize the impact
of the deceased's extremely severe dental health and ongoing dental infections to
impact on her long-standing mitral valve prolapse allowing bacteria, transmitted by
her dental infections to “seed” her heart valve to directly cause her subsequent
bacterial heart valve infection. This led directly to vegetation's [sic] from the heart
valve breaking loose from the heart and flowing to her brain, causing her terminal
stroke.
(ii). The facts revealed by the medical records are that in the Spring of 2015, Ms.
McNeese sought medical care at the Albuquerque VA hospital through the
Emergency Room and, because she was eligible for VA care, through a VA primary
care doctor and multiple VA consultants for intermittent fevers, flu-like symptoms,
myalgias, dyspnea, and weakness in the setting of extremely poor dentition and
chronic Mitral Valve Prolapse (mvp).The dental infections were sending bursts of
bacteria into her bloodstream that were causing her fever spikes and anemia of
chronic disease, and eventually caused bacterial vegetation's [sic] to grow on her
heart valve. These vegetation's [sic] eventually caused her stroke which caused her
demise, after over 8 months of being treated in and by the VA.
(iii). Plaintiff[] will submit the medical records, including enlargements of them,
Additionally, large scale diagrams and models of the heart, brain, mouth and
circulatory system will be shown to the jury to demonstrate the exact mechanisms
of the disease processes that killed the deceased.
Doc. 90-1, Ex. A.
Noting that McNeese received care from physicians specializing in areas other than
emergency medicine2, such as cardiology, hematology and infectious diseases, Defendant argues
that Dr. Liss is not qualified to offer an opinion relating to the care they provided as beyond his
expertise as an emergency medicine physician. Doc. 90 at 10. Defendant also argues that Dr. Liss
is unqualified to render an opinion as to the state of McNeese’s teeth because he is not a dentist
and because the basis of his conclusion with respect to the condition of her teeth was solely drawn
from review of a record that McNeese visited a dentist in Mexico and received a $9,000 estimate
for dental work.3 Id.

2

McNeese was seen by Dr. Meela Yoo, an emergency medicine physician.
In his deposition, Dr. Liss testified that he did not review the X-Rays or any other documents compiled by the dental
office in Mexico. Doc. 90-5, Ex. E, 58:4-17. At the hearing, Dr. Liss testified that he did not see any report relating
to dentition but did review the Panorex (X-Ray) from the dental office in Mexico. In its Motion to Exclude Dr. Liss
3

7

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 8 of 17

In response, Plaintiff initially argues that Dr. Liss “possesses the knowledge, skill,
experience, training, and education to render an opinion on the standard of care in this matter and
his opinion is reliable and supported by sound medical reasoning.” Doc. 91 at 2. Plaintiff contends
that Dr. Liss’ long-standing experience as an emergency medicine physician sufficiently qualifies
him to opine on the standard of care at the VAMC.4 Plaintiff avers that Dr. Liss is “well-qualified”
to opine on the standard of care provided by Dr. Yoo, McNeese’s treating emergency medicine
physician. Doc. 91 at 3.5

Plaintiff concedes that Dr. Liss’ testimony with respect to the

cardiologist, Dr Serkland is “a bit more complicated.” Id. at 3-4. Plaintiff states that “...Dr. Liss
is not trained in cardiology and has insufficient qualifications to testify as to the standard of care
for a cardiologist operating in her specialty,” but posits that Dr. Liss can nevertheless speak to a
standard of care for Dr. Serkland because the standards for recognizing bacterial infection are part
of medical school training and “are the same across all of the medical specialties” and that
emergency medicine requires strong diagnostic skills.”6
Plaintiff asserts that Dr. Liss is also qualified to testify as to Dr. Rodriguez-Segarra’s failure
to meet the medical standards “because as Tina[] [McNeese’s] primary care physician RodriguezSegarra was required to monitor all of her medical records and should have recognized that the
pattern of symptoms indicated bacterial infection.” Id. at 4-5. Plaintiff states that the testimony

Testimony, prior to the hearing, Defendant nevertheless argues that even if Dr. Liss had viewed dental records, he is
not qualified to render an expert opinion relating to dental care. Doc. 90 at 10.
4
Plaintiff relies heavily upon the attached Affidavit of Dr. Liss, which extensively expands upon his initial report in
scope and detail, while also addressing his opinion as to the standard of care by various VAMC physicians by name.
Doc. 91-2, Ex. 2. The Affidavit also offers detailed analysis with citation, for the first time, to medical sources.
5
In sum, Dr. Liss opines that Dr. Yoo should have recognized the possibility of bacteremia from the symptoms
presented on April 17, 2015, when McNeese was admitted to the ER, and failure to properly diagnose the condition
was in breach of the appropriate standard of care. Exhibit 2, ¶¶ 13, 14, 17.
6
Plaintiff cites solely to the Affidavit attached in her Response in support of these arguments and to one website
article that provides a “Job Description” for an emergency medicine physician. Plaintiff states that “Dr. Liss will not
give an opinion as to the standard of care regarding Dr. Serkland’s treatment as a cardiologist because he is not a
cardiologist, but he can testify as to her failure to diagnose bacteremia, an illness with symptoms that should be
recognized by any physician who is paying attention.” Doc. 91 at 5.

8

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 9 of 17

will go to the failure of these physicians to recognize that McNeese’s symptoms indicated the
possibility of bacterial infection posing a danger to her life because of her MVP. In support,
Plaintiff cites to Holzem v. Presbyterian Healthcare Services, 2013-NMCA-100, ¶ 17, an action
where the New Mexico Court of Appeals determined it was error to exclude an infectious disease
expert’s testimony relevant to the standards for an emergency medicine physician to identify and
treat influenza. Noting that the expert in that case had extensive experience teaching medical
students how to diagnose and treat influenza as an infectious disease specialist, not as a specialist
in emergency medicine, the New Mexico Court of Appeals concluded the following:
The standard for diagnosing and treating influenza is not particular to emergency
medicine, and cannot be construed on such a narrow basis. Plaintiffs' influenzarelated claim should be addressed by an expert who has sufficient experience in
both influenza diagnosis and treatment that is pertinent to the facts of this case.
Accordingly, Dr. Palmer's lack of specialization in emergency medicine does not
automatically disqualify him as an expert witness. Rather, it goes to the weight a
jury could give his testimony if determined otherwise to be admissible. The district
court therefore abused its discretion by determining that Dr. Palmer was not
qualified as an expert on this erroneous and arbitrary basis. (emphasis added).
Defendant’s Reply notes that the Response is untimely7, and also contends that Plaintiff
fails to respond with any basis for Dr. Liss to offer his opinions beyond his medical qualifications
as an emergency medicine physician. Doc. 93 at 1. Defendant faults Plaintiff for attaching an
unsigned Affidavit to its Response with a “new set of opinions” beyond discovery deadlines
imposed by the Court and claims that the Affidavit should therefore be stricken. Id. Defendant
maintains that even if the Court accepts the untimely response and Affidavit, Dr. Liss’ opinions
therein are equally unreliable as beyond the scope of his expertise.

7

Plaintiff filed the Response one day after the deadline imposed by the Court in its Order Setting Briefing Schedule,
which required all responses to any Daubert motions to be filed no later than April 12, 2021 at 5:00 p.m. Under the
circumstances, the Court does not find this to be adequate grounds for striking the Response.

9

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 10 of 17

The Court notes that at the Daubert hearing on June 7, 2021, Defendant stated that it did
not object to Plaintiff’s substitution of the unsigned documents, which Plaintiff’s counsel stated
were filed in error, with the appropriately signed original. Accordingly, the Court permitted
Plaintiff to supplement its Response with the corrected files, thereby resolving the issue of an
untimely, unsigned Response and Affidavit. The Court did not make a determination at that time
with respect to the admissibility of the evidence within the Affidavit.
Dr. Liss is Not Qualified to Opine Beyond the Scope of Emergency Medicine
Rule 702 allows expert testimony where the “witness [is] qualified as an expert by
knowledge, skill, experience, training, or education” to offer such opinions. LifeWise Master
Funding, 374 F.3d at 928. As Plaintiff concedes, Dr. Liss is unqualified to testify with respect to
Dr. Serkland, the cardiologist. Doc. 91 at 4. The Court agrees. Plaintiff’s proposition that Dr. Liss
may testify as to the failure by all VAMC treating physicians to recognize that McNeese’s
symptoms indicated the possibility of bacterial infection because of her MVP on the basis that
“The symptoms are well-known and recognition of them is not particular to any specialty” and her
reliance on Holzem are misplaced. Doc. 91 at 5. Dr. Liss’ CV demonstrates, and is confirmed by
his deposition testimony, that he does not have any subspeciality experience beyond rotations in
residency. Doc. 90-5, Ex. E 27:3-24; 29:2-19. Furthermore, Dr. Liss has no publications, let alone
in these specialties, and unlike the expert in Holzem, appears to lack an extensive teaching record.
Moreover, Dr. Liss does not have significant experience specific to mitral valve prolapse and
bacterial infections beyond identifying the potential symptoms to either stabilize or refer patients
out to specialists.8 On this basis, the Court does not believe Dr. Liss is qualified to testify as an

8

At the Daubert hearing, Dr. Liss testified that emergency medicine physicians are charged with identifying and
diagnosing patients, stabilizing them as necessary, and, where indicated, presenting and referring patients to specialists
or subspecialists for further medical treatment.

10

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 11 of 17

expert about the appropriate standard of care for and the course of treatment by physicians in nonemergency medicine specialties. Accordingly, the Court will limit Dr. Liss to testimony within
emergency medicine. The Court will permit Dr. Liss to opine on the appropriate standard of care
and general methods of identifying symptoms of bacterial infection as an emergency physician
only.9
B.

Reliability of Dr. Liss’ Opinions

Defendant asserts that Dr. Liss’ opinions are unreliable because “Dr. Liss offers only
conclusions, without any connection to his experience, education, or field of expertise. Nor does
he provide any explanation or authority for his conclusions as related to the specific facts of this
case.” Doc. 90 at 11. Defendant argues that Dr. Liss’ conclusions fail to take into account the other
medical conditions the VAMC physicians addressed when treating McNeese or the specific
symptoms she presented with at the time of her various appointment. Id. at 11-14.
The Tenth Circuit has held that witnesses “relying solely or primarily on experience ...
must explain how that experience leads to the conclusion reached, why that experience is a
sufficient basis for the opinion, and how that experience is reliably applied to the facts.” United
States v. Medina-Copete, 757 F.3d 1092, 1104 (10th Cir. 2014), quoting Fed.R.Evid. 702 advisory
committee's note (2000 Amendment). The Court is not required “to admit opinion evidence that
is connected to existing data only by the ipse dixit of the expert. The court may conclude that there
is simply too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). On the other hand, the
Daubert factors are meant to be “helpful not definitive” and the trial court has significant latitude

As discussed later in this Order, the Court will permit Dr. Liss to discuss Dr. Yoo’s treatment of McNeese and
whether there was a failure in her standard of care. The Court will also allow Dr. Liss to discuss the condition of
McNeese’s teeth inasmuch as it relates to whether an emergency medicine physician should be able to identify poor
dentition as a symptom of endocarditis and the attendant risks with MVP.
9

11

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 12 of 17

in how it determines “whether or not” an expert’s testimony is reliable.” See Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. at 151–53.
Defendant correctly points out that Dr. Liss does not provide any medical basis or authority
for his conclusions in his initial report.10 Notably, the Affidavit attached to Plaintiff’s Response
appears to attempt to remedy this omission by citing to the Merck Manual for basic symptoms of
bacteremia. Absent the Affidavit attached to the Response, Dr. Liss’ initial report does not appear
to be sufficient grounds for an expert opinion that McNeese’s poor dentition and the various
physicians’ alleged failure to examine her teeth or order blood cultures earlier caused her death.
See Fed.R.Evid. 704(a) (testimony on an “ultimate issue” is admissible if it satisfies Daubert, and
if it is helpful to the jury without depriving the jury of exercising its independent judgment); See
Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir. 1995) (“…[T]he
experts must explain precisely how they went about reaching their conclusions and point to some
objective source—a learned treatise, the policy statement of a professional association, a published
article in a reputable scientific journal or the like—to show that they have followed the scientific
method, as it is practiced by (at least) a recognized minority of scientists in their field…plaintiffs
rely entirely on the experts' unadorned assertions that the methodology they employed comports
with standard scientific procedures. We've been presented with only the experts' qualifications,
their conclusions and their assurances of reliability. Under Daubert [v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993)], that's not enough.”); See also Rosen v. Ciba-Geigy
Corp., 78 F.3d 316, 319 (7th Cir. 1996) (“an expert who supplies nothing but a bottom line supplies
nothing of value to the judicial process...).

For example, in his initial report, Dr. Liss states that “dental infections were sending bursts of bacteria into her
bloodstream that were causing her fever spikes and anemia of chronic disease, and eventually caused bacterial
vegetations to grow on her heart valve [which] eventually caused her stroke which caused her demise...” He cites
nothing other than a review of the medical records.
10

12

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 13 of 17

The Court will Permit Plaintiff to Supplement the Initial Expert Report with the
Affidavit Solely as it Relates to Dr. Yoo’s Treatment and the Standard of Care in
Emergency Medicine.
Defendant contends that, should the Court admit Dr. Liss’ testimony, he should be cabined
to his disclosures in the Pre Trial Order, and that Plaintiff’s failure to timely supplement his initial
report with the Affidavit violates Federal Rule of Civil Procedure 26(e) and should be penalized
pursuant to Federal Rule of Civil Procedure 37(c)(1). Defendant protests against the admissibility
of the Affidavit because Dr. Liss’ “augmented” opinions are not based on any new evidence
previously unavailable to the parties. Doc. 93 at 4.
The Law Relating to Disclosures and Supplementation under FRCP 26 and 37
Federal Rule of Civil Procedure 26(a)(2)(B)(i) governs the disclosure of an expert’s report
and provides that the report “must contain ... a complete statement of all opinions the witness will
express and the basis and reasons for them.” Courts may set a time by which the parties must
submit their experts’ reports. Fed.R.Civ.P. 26(a)(2)(D):
Parties bear a continuing obligation to supplement these reports if the parties later
learn the information initially provided is incomplete or incorrect. Fed.R.Civ.P.
26(a)(2)(E) and 26(e). “Rule 26(a) expert reports ... are intended not only to identify
the expert witness, but also ‘to set forth the substance of the direct examination’ ...
[and are] necessary to allow the opposing party ‘a reasonable opportunity to
prepare for effective cross examination and perhaps arrange for expert testimony
from other witnesses.’ ” Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th
Cir.2002) (quoting Fed.R.Civ.P. 26(a)(2) advisory committee note (1993)). “[A]
district court can allow evidence violating Rule 26(a) only if the violation was
justified or harmless.” Id. (citing Fed.R.Civ.P. 37(c)). But, “[a] district court need
not make explicit findings concerning the existence of a substantial justification or
the harmlessness of a failure.” Woodworker's Supply, Inc. v. Principal Mut. Life
Ins. Co., 170 F.3d 985, 993 (10th Cir.1999). In making this determination, the
following factors guide the broad discretion of district courts: “(1) the prejudice or
surprise to the party against whom the testimony is offered; (2) the ability of the
party to cure the prejudice; (3) the extent to which introducing such testimony
would disrupt the trial; and (4) the moving party's bad faith or willfulness.” Id.
Henderson v. Nat'l R.R. Passenger Corp., 412 Fed. Appx. 74, 80–81 (10th Cir. 2011).

13

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 14 of 17

Defendant argues that it will be prejudiced if the Court permits Dr. Liss’ additional
evidence in the Affidavit, beyond the scope of the original expert report. Doc. 90 at 16; Doc. 93
at 5-7. Defendant finds this is especially problematic “since the undersigned counsel for the United
States took Dr. Liss’ deposition on July 9, 2019, specifically to determine what his opinions would
be at trial,” and thus permitting the Affidavit’s opinions would be unfair. Doc. 93 at 6.11 Defendant
suggests the Court strike the Affidavit, or alternatively limit or exclude Dr. Liss’ testimony to his
area of specialization. Id. at 7. Plaintiff does not appear to appropriately address many of these
arguments but rather makes general assertions as to Dr. Liss qualifications. Plaintiff provides no
justification for the lateness of the Affidavit or explains why this information was not previously
available. See Guidance Endodontics, LLC v. Dentsply Int'l, Inc., 2009 WL 3672502, at *3-*5
(D.N.M. Sept. 29, 2009) (“The penalty for failure to satisfy rule 26(e) is severe. Rule 37 states
that, if one “fails to provide information ... as required by Rule 26(a) or (e), the party is not allowed
to use that information or witness to supply evidence ... at trial, unless the failure was substantially
justified or is harmless.” Fed.R.Civ.P. 37(c)(1). Whether a rule 26(a) violation is justified or
harmless is a question for the district court's broad discretion)” (finding the party’s failure to
supplement in a timely fashion neither substantially justified or harmless when it was well aware
of discovery deadlines, when it had all the relevant information necessary to develop the
supplemental report, especially because it did not allow the opposition time to prepare a rebuttal
or investigate the basis for the expert’s opinions.).

11

The Court previously noted that this case has a history of mutually agreed upon extensions, discovery delays and
missed deadlines. Doc. 72 at 10. For instance, Defendant permitted Plaintiff’s counsel to take Dr. Shadoff,
Defendant’s expert witness’, deposition on July 12, 2019, “months after discovery terminated and without leave of
Court”. Id. Thus, to the extent Defendant asserts inconvenience and delay here, the Court notes that Plaintiff is not
solely at fault.

14

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 15 of 17

However, this determination is subject to the Court’s broad discretion. Leon v. FedEx
Ground Package Sys., Inc., 2016 WL 1158079, at *6 (D.N.M. Mar. 1, 2016) (“District courts have
broad discretion to exclude untimely disclosed expert-witness testimony.”). Although nonbinding, the Court finds the Leon District Court’s analysis of Gillum v. United States (309 Fed.
Appx. 267, 269 (10th Cir. 2009)), instructive and applicable to the instant matter:
“… [I]n Gillum v. United States, the Tenth Circuit determined that a party's failure
to produce a written expert report in compliance with rule 26(a)(2)(B) did not
warrant the extreme sanction of excluding the expert's testimony. The district court
had found that the inadequate expert report prejudiced the United States, because it
could not adequately prepare for deposing the expert, and the district court
determined that the prejudice could not be cured on the premise that the United
States had ‘only ... one chance to confront that expert, ... flat-footed, with the benefit
of the homework that you can do before you take that expert deposition, and that
opportunity is now gone permanently in this case.’ The Tenth Circuit held that the
district court ‘abused its discretion in analyzing the ‘cure factor,’’ because the
district court ‘focused on the fact that the inadequate report permanently deprived
the United States of the opportunity to confront [the expert] ... ‘flat-footed.’’ The
Tenth Circuit held that this analysis was faulty, because the plaintiff had arranged
for the United States to depose the expert a second time before the end of the
discovery period, and the plaintiff could cover the United States' costs for a second
deposition.. While stating that ‘[b]y no means do we condone the provision of
inadequate expert report and begrudging snippets of information, and we caution
that parties who behave in this manner act to their peril,’ the Tenth Circuit held that
the total exclusion of the expert's testimony was unnecessary.
Leon v. FedEx Ground Package Sys., Inc., 2016 WL 1158079, at *8 (internal citations omitted).
Considering the factors advanced in Woodworker’s Supply, Inc., as well as the Tenth
Circuit’s analysis in Gillum, the Court concludes that the prejudice to Defendant is not so extreme
as to warrant total exclusion of the evidence in the Affidavit. However, the Court agrees with
Defendant that Dr. Liss should be limited to testifying within his expertise as an emergency
medicine physician. As such, the Court will solely admit the Affidavit inasmuch as it discusses
Dr. Yoo’s treatment of McNeese in the context of emergency medicine. The Court otherwise
prohibits Plaintiff from expanding upon its original report, with what is clearly a belated

15

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 16 of 17

supplemental report, in any other medical subject or context. See Beller ex rel. Beller v. United
States, 221 F.R.D. 689, 695 (D.N.M. 2003) (quoting Resolution Trust Corp. v. Gregory, No.
CV:94–0052, (D.N.M.)) (Kelley, J.) (“Although Fed.R.Civ.P. 26(e) requires a party to
‘supplement or correct’ disclosure upon information later acquired, that provision does not give
license to sandbag one's opponent with claims and issues which should have been included in the
expert witness' report…”). With respect to Plaintiff’s ability to cure the prejudice, should
Defendant determine that further deposition is required to address this specific aspect of Dr. Liss’
Affidavit, the Court will entertain a motion on the matter of costs for obtaining added testimony.
The Court does not find that inclusion of appropriately limited portions of the Affidavit would
disrupt trial. Finally, the Court does not believe that Plaintiff’s conduct was carried out in bad faith,
although “good faith alone would not be enough to overcome the other factors.” Jacobsen v.
Deseret Book Co., 287 F.3d 936, 954 (10th Cir. 2002).
Inasmuch as Defendant argues that Dr. Liss failed to consider alternative action taken by
the physicians, failed to address that the VAMC physicians conducted diagnostic testing to rule
out several other potential issues, or that his opinion on what Dr. Yoo should have done is not
backed by the medical literature, the Court finds this relevant to the weight of the evidence and
goes to the credibility of Dr. Liss’ testimony, but not the admissibility of the opinions themselves.
Doc. 93 at 10-11. Having concluded that Dr. Liss shall be limited to his opinion with respect to
Dr. Yoo, the Court does not further discuss Defendant’s arguments relating to the other VAMC
physicians.
The Court otherwise rejects Plaintiff’s remaining arguments relating to Dr. Liss’ general
qualifications as applied to other specialties, which are largely absent citation to any case law.

16

Case 1:17-cv-01164-KWR-KK Document 98 Filed 06/17/21 Page 17 of 17

CONCLUSION
For the reasons previously stated, the Court concludes that Plaintiff has not met its burden
to demonstrate that Dr. Liss is qualified to testify beyond the scope of emergency medicine as to
standard of care for specialties such as cardiology, infectious diseases, or primary care. The Court
does find that inclusion of Dr. Liss’ Affidavit and testimony relating to Dr. Yoo and emergency
medicine will be helpful to the Court. Accordingly, the Court will exclude Dr. Liss’ testimony and
evidence involving anything other than his expertise in emergency medicine. With respect to the
supplemental Affidavit, the Court will only admit, and Dr. Liss will only be permitted to opine
about, the appropriate standard of care related to Dr. Yoo and her treatment of McNeese.
IT IS THEREFORE ORDERED that Defendant’s Motion to Exclude Expert Testimony
of Dr. Ronald Liss (Doc. 90) is GRANTED IN PART AND DENIED IN PART.

_________________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE

17