Kelley v. Howard Berger Company, Inc. et al

Filing 284

ORDER denying 240 Motion to Strike. Signed by Magistrate Judge H Bruce Guyton on 12/2/16. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
KENNETH L. KELLEY, as the son, next of
kin, and heir at law of JIMMY L. KELLEY,
Plaintiff,
v.
APRIA HEALTHCARE, INC.,
Defendant.

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No. 3:13-cv-096-PLR-HBG

ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
Standing Order 13-02, and the referral Order [Doc. 242] from the District Judge.
Now before the Court is the Defendant’s Motion to Strike Plaintiff’s Rule 26 Experts
Michael G. Mariscalco and Alan Lipschultz [Doc. 240]. The parties appeared before the Court
on October 19, 2016, for a motion hearing. Attorneys Eric Foust and Dan Stanley appeared on
behalf of the Plaintiff, and Attorney Nathan Maurer appeared on behalf of the Defendant.
Accordingly, the Court finds the Motion not well-taken, and it is DENIED.
In its Motion, the Defendant argues that Plaintiff’s Fourth Amended Complaint brings a
health care liability action against it for its alleged failure to use reasonable care in providing
oxygen and other medical equipment to the decedent for home use. The Defendant submits that
because Plaintiff’s lawsuit is a health care liability action, the Plaintiff’s experts must satisfy the
“contiguous” state requirement of Tennessee Code Annotated § 29-26-115(b). The Defendant
argues that the Plaintiff’s experts do not meet the contiguous state requirement and must be
stricken.

The Plaintiff filed a Response [Doc. 243] in opposition, arguing that his action is not a
health care liability action. In addition, the Plaintiff argues that the Defendant waived healthcare
liability as a defense because it failed to raise it in any Answer. The Plaintiff also notes that the
Defendant has not filed an Answer to the Fourth Amended Complaint. Further, the Plaintiff
argues that Michael Mariscalco is licensed in Kentucky.
On November 22, 2016, District Judge Reeves entered a Memorandum Opinion and
Order [Doc. 282], denying the Defendant’s Motion for Summary. In relevant part, Judge Reeves
found that the Defendant “is not a health care provider under the Tennessee Health Care Liability
Act.” Judge Reeves further stated that “any expert witnesses [the Plaintiff] offers will not be
required to meet the Act’s qualifications.” Accordingly, the Court finds the Defendant’s Motion
to Strike Plaintiff’s Rule 26 Experts Michael G. Mariscalco and Alan Lipschultz [Doc. 240] not
well-taken, and it is DENIED.
IT IS SO ORDERED.
ENTER:

United States Magistrate Judge

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