Stahl v. United States of America

Filing 36

ORDER signed by Judge J P Stadtmueller on 6/15/09 as follows: granting 19 defendant's motion to strike portions of the plaintiff's expert witness disclosures and striking the cited portions; granting 25 plaintiff's motion to permit the naming of Dr. Sanford Larson as a rebuttal witness; and denying 24 defendant's motion to strike the plaintiff's designation of a rebuttal witness. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ A U D R E Y A. STAHL, individually and as personal representative of the Estate of Robert Stahl, P l a i n t if f , v. U N IT E D STATES OF AMERICA, D e fe n d a n t. ____________________________________________ Case No. 08-CV-175

ORDER
P la in tiff Audrey Stahl ("Stahl") brings a suit for medical malpractice against the U n ite d States ("the government") arising out of treatment that her deceased h u s b a n d , Robert Stahl ("Mr. Stahl"), received at the Veteran's Administration Medical C e n te r and Hospital. As part of the discovery process, the parties made their re s p e c tive expert witness disclosures pursuant to the court's scheduling order. T h e s e disclosures led to the filing of three motions currently pending before the c o u r t: 1) a motion by the government to strike portions of Stahl's expert witness d is c lo s u re s ; 2) a motion by Stahl to name a rebuttal expert witness beyond the A p r il 17, 2009 deadline for the close of discovery; and 3) a motion by the g o ve rn m e n t to strike Stahl's beyond deadline designation of the rebuttal expert w itn e s s . I. E x p e r t Witness Disclosures S ta h l submitted her expert witness list to the government on February 2, 2009, in compliance with this court's deadline for such disclosures. However, the

g o ve rn m e n t objects to a portion of the disclosure and asks that the court strike the o b je c tio n a b le language and prohibit Stahl from submitting supplemental disclosures. T h e government seeks to strike the following portions of Stahl's expert witness d is c lo s u r e s : A d d itio n a l expert opinions may be solicited from healthcare p ro fe s s io n a ls identified as witnesses in this action, including but not lim it e d to the testimony of the physicians and nurses who treated Mr. S ta h l at and through the V.A. Medical Center, and Fort Atkinson H o s p ita l. Opinions of some healthcare professionals have been p ro vid e d in depositions taken to this point, with additional depositions to be completed throughout discovery. As much factual information is ye t to be discovered at this point, additional expert opinions may be d e v e lo p e d . P la in tiffs reserve the right to call all witnesses, including experts, id e n tifie d in the witness list of any other party to this action. A s discovery is continuing, this list may be supplemented, including but n o t limited to the identification of rebuttal witnesses. (Pl.'s Expert W itn e s s List, Docket #19, Ex. 1005). The government asserts that this la n g u a g e does not comply with Civil Local Rule 26.1, which requires the disclosure o f "the substance of all expert witness evidence the party intends to present at trial, in c lu d in g expert witness evidence of hybrid fact/expert witnesses such as treating p h ys ic ia n s ." Civil L.R. 26.1(a). The rule also requires that expert testimony

d is c lo s u re s be in the "form of a written report" that "includes a statement of all o p in io n s to be expressed and the basis and reasons therefor." Civil L.R. 26.1(b). T h e government asserts that Stahl's disclosure violates these provisions because it permits Stahl to elicit additional expert testimony from currently unnamed

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h e a lth c a r e professionals beyond the disclosure date and without providing written re p o rts . In response, Stahl first asserts that she does not intend to obtain expert o p in io n testimony from the emergency room doctor and two nurses from the V.A. M e d ic a l Center and Fort Atkinson Hospital who have already been deposed. Thus, th e defendant's motion only applies to providers at the V.A. hospital. Regarding th e s e providers, Stahl argues that her disclosure does not violate the local rule or c a s e law because "it fits squarely within what is expected of a plaintiff in this type of a c tio n ." (Pl.'s Resp. 1). Stahl argues that she may elicit opinion evidence from the h e a lth c a re providers at the V.A. hospital, who constitute witnesses, without a re q u ire m e n t that they provide opinion reports. Specifically, Stahl alleges that the ru le requiring treating physicians to provide opinion reports was not meant to apply to situations such as the instant case ­ where providers are employees of the d e fe n d a n t party. Instead, she asserts that the rule is meant to allow defendants to le a rn about and evaluate the opinion of the plaintiff's treating physician without re q u irin g the defendant to take an exhaustive deposition of that physician. Further, S tah l asserts that she must be allowed to ask opinion questions of these providers re g a rd in g causation and the standard of care provided because their conduct and tre a tm e n t is at issue. The government is concerned about the implications of Stahl's disclosure la n g u a g e and seeks to prohibit Stahl's future attempts to name "supplemental"

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e x p e rt witnesses and to name such experts without providing opinion reports. In d e e d , the disputed language seems to grant Stahl the unlimited ability to seek a d d itio n a l expert opinions without regard to the court's imposed deadline or the need to provide expert reports. Like the government, the court is concerned about the im p lic a tio n s of Stahl's disclosure language. d isc lo s u re s present several issues of concern. First, the court's deadline for the plaintiff to make her expert witness d is c lo s u re s was February 2, 2009, and the deadline for completion of discovery was A p ril 17, 2009. Federal Rule of Civil Procedure 26(a)(2)(C) and Civil Local Rule The disputed portions of Stahl's

2 6 .1 ( c ) require that Stahl disclose her expert witnesses by those respective dates. T h e naming of additional expert witnesses beyond the court's discovery deadline re q u ire s the court's approval. S e c o n d , expert witnesses must provide written reports, unless the expert is a treating physician whose testimony is limited to the facts of the injury and tre a tm e n t. Federal Rule of Civil Procedure 26(a)(2)(B) requires that the disclosure o f expert witnesses be accompanied by a written report setting forth, among other ite m s , the opinions to be offered and the basis for those opinions. Such a report is n o t required when a treating physician testifies only about the nature and extent of th e injury he or she observed and the treatment provided. Griffith v. Northeast Illin o is Regional Commuter R.R., 233 F.R.D. 513, 518-519 (7th Cir. 2006). However,

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th e treating physician cannot testify regarding causation without providing a report. Id . at 519. D e s p ite this requirement, Stahl seems to assert that she need not either d is c lo s e the V.A. providers as expert witnesses or obtain reports from these in d ivid u a ls , based on Shurpit v. Brah, 30 Wis.2d 388, 141 N.W .2 d 266 (1966). She c ite s Shurpit for the proposition that a plaintiff must be allowed to solicit opinion te s tim o n y about standard of care and causation from a defendant whose conduct is in question. (Pl.'s Resp. 3). Shurpit addressed the question of whether a defendant tre a tin g physician who is testifying at trial must provide opinion testimony regarding th e care he provided to the plaintiff. Id. at 388. In that case, the W is c o n s in Supreme C o u rt held that prohibiting cross-examination regarding the quality of care and tre a tm e n t provided constituted error by the circuit court. Id. at 399-400. However, Shurpit does not excuse Stahl from complying with the Federal or L o c a l Rule requiring opinion reports. First, Shurpit addresses cross-examination of a n expert witness and does not discuss opinion reports. Second, Shurpit's

s ta te m e n t that a medical witness must address his own standard of care on crosse xa m in a tio n only applies when that witness is alleged to have caused injury to the p la in tiff by his own medical negligence. Carney-Hayes v. Northwest Wis. Home C a re , Inc., 2005 W I 118, ¶¶ 38, 42, 284 W is . 2d 56, 82-84, 699 N.W .2 d 524, 537-38. In the instant case, it is unclear to the court whether Stahl alleges that all of the

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u n n a m e d V.A. providers were negligent in treating Mr. Stahl, or if the allegedly n e g lig e n t care was rendered only by some of the providers and not others. Stahl also argues that she need not disclose the V.A. providers as expert w itn e s s e s or obtain reports from them because applying the requirements to cases s u c h as her own was not "contemplated by the drafters of the rules." (Pl.'s Resp. 2). H o w e ve r, Stahl provides no authority for her claim that the rule does not apply b e c a u s e the conditions underlying its requirements are not present. Thus, the court s e e s no reason to uniformly suspend the applicable rules regarding expert witness d isc lo s u re s in this case. The court will strike the aforementioned portions of Stahl's disclosures b e c a u s e it suggests she may name additional experts without complying with the c o u rt's deadlines or providing required expert opinion reports. These actions do not c o m p o rt with the general purpose of discovery, which is to avoid surprise and "trial b y ambush." Bell v. Columbia St. Mary's Hosp. Milwaukee, Inc., No. 07-CV-81, 2008 W L 163671, at *3 (E.D. Wis. Jan.16, 2008). Stahl has not provided convincing re a s o n s for the court to allow a general exception to expert witness disclosure re q u ire m e n ts in her case. II. R e b u t ta l Expert Witness S tah l has also filed her own motion seeking permission to name an expert re b u tta l witness, Dr. Sanford Larson ("Dr. Larson"), to testify regarding the issue of w h e th e r Mr. Stahl's fracture distraction could have occurred spontaneously. Stahl

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file d her motion on May 11, 2009, and first notified the government of her intent on M a y 7, 2009. (Crivello Aff., Docket #27, Ex. 5). Stahl seeks to use Dr. Larson's te s tim o n y to address testimony regarding spontaneous fracture by the government's e xp e rt, Dr. Richard Blonsky ("Dr. Blonsky"). Stahl argues that the court should allow h e r to designate Dr. Larson as a rebuttal witness because she named him within 30 d a ys of Dr. Blonsky's April 15, 2009 deposition. Stahl's argument is based on F e d e ra l Rule of Civil Procedure 26(a)(2)(C), which requires a party to make expert re b u tta l testimony disclosures within 30 days after the other party's expert testimony d is c lo s u re . Fed. R. Civ. P. 26(a)(2)(C)(ii). Though Stahl received Dr. Blonsky's m e d ic a l report on March 27, 2009, she asserts that the date of Dr. Blonsky's d e p o s itio n represents the date on which his spontaneous fracture opinion was "d is c lo s e d in detail." Thus, Stahl argues, April 15, 2009, is the appropriate date from w h ic h to run the 30-day period for naming rebuttal witnesses. H o w e v e r, Stahl's argument is based upon an incorrect reading of the rule. T h e 30-day period allowed for disclosure of rebuttal expert witnesses is only the a p p lic a b le deadline "[a]bsent a stipulation or court order." Fed. R. Civ. P. 26(a)(2)(C). The 30-day period merely represents a default in cases where no court order exists. In the instant case, however, there is a court order in place naming April 17, 2009, a s the deadline for completion of discovery. d is c lo s e d within 30 days is immaterial. Therefore, whether or not Stahl

Stahl's expert witness disclosure is

u n d e n ia b ly late because she filed it three weeks after the court-imposed deadline.

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B e y o n d the issue of whether Stahl's disclosures are untimely, however, the c o u r t must also consider whether allowing her to name a rebuttal expert witness b e yo n d the discovery deadline is appropriate. The government strongly objects to S ta h l's late disclosure and urges this court to deny her motion to name Dr. Larson a s a rebuttal expert. The government argues that the after-deadline disclosure c a u s e s prejudices because the government will incur fees to depose Dr. Larson ­ fee s that would be unnecessary if Stahl had questioned her own expert witness, Dr. D a vid Goldstein, regarding spontaneous fracture at his March 31, 2009 deposition in s te a d of naming a separate rebuttal witness. However, the court disagrees that th e government would be unduly prejudiced if Stahl is allowed to name her rebuttal e xp e rt witness at this point in the proceedings. First, the disclosure only subjects the g o v e r n m e n t to a three week delay. Further, the government's claim regarding d e p o s itio n fee savings requires that Stahl adopt a particular litigation strategy. It is tru e that if the court prohibits Stahl from designating Dr. Larson as a rebuttal expert b a s e d strictly on her beyond deadline disclosure, then the government need not d e p o s e Dr. Larson and will save the costs of doing so. However, the court does not c re d it the government's argument that Stahl should have questioned her existing e xp e rt, Dr. Goldstein, regarding spontaneous fracture during the government's d e p o s itio n and obviated the need to name Dr. Larson or take his deposition. Parties a re not required to adopt this strategy. Thus, Stahl may choose to name Dr. Larson

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a s a rebuttal expert witness in addition to naming Dr. Goldstein. The lateness of the filin g is the only genuine prejudice posed by Stahl's motion. T h e court acknowledges that its scheduling order did state that "no further e xte n s io n s will be granted." However, the court will make this particular exception fo r the naming of one rebuttal witness to provide testimony regarding a discrete to p ic. The extension is only three weeks and the resulting prejudice is minimal. Accordingly, IT IS ORDERED that defendant's motion to strike portions of the plaintiff's e xp e rt witness disclosures (Docket #19) be and the same is hereby GRANTED; the p re vio u s ly cited portions are hereby STRICKEN; IT IS FURTHER ORDERED that the plaintiff's motion to permit the naming of D r. Sanford Larson as a rebuttal witness (Docket #25) be and the same is hereby G R AN T E D ; IT IS FURTHER ORDERED that the defendant's motion to strike the plaintiff's d e s ig n a tio n of a rebuttal witness (Docket #24) be and the same is hereby DENIED. D a te d at Milwaukee, W is c o n s in , this 15th day of June, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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