McGhee, Laderian v. Suliene, Dalia et al

Filing 108

ORDER denying plaintiff's 102 Motion to Strike the Declaration of Glen Heinzl. Plaintiff may have until January 13, 2014 to file a supplemental response to defendants' motions for summary judgment, and defendants may have until January 27, 2014 to file a reply. Signed by Magistrate Judge Stephen L. Crocker on 12/13/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LADERIAN McGHEE,
ORDER
Plaintiff,
13-cv-67-bbc
v.
DALIA SULIENE, KAREN ANDERSON
and LON BECHER,
Defendants.

In this case, plaintiff Laderian McGhee is proceeding on claims that defendants Dalia Suliene,
Karen Anderson and Lon Becher violated his rights under the Eighth Amendment and state medical
malpractice law by depriving him of adequate medical care for his shoulder injury while he was
incarcerated. The parties have completed briefing defendants’ motions for summary judgment, dkt.
30, 67. Currently before the court is plaintiff’s motion to strike the declaration of Glen Heinzl, who
was briefly a defendant in this case before the parties stipulated to his dismissal.
Dr. Heinzl is a medical doctor who currently works as a contract physician for the
Department of Corrections. In his declaration, dkt. 36, he reviews plaintiff’s medical file and gives
his expert opinion about the care he received. Plaintiff moves to strike this declaration, stating that
“Heinzl’s testimony is based solely on his review of [plaintiff’s] medical records,” that he “was not
physically present” on the dates of plaintiff’s various treatments and that defendants have not
disclosed Dr. Heinzl as an expert witness. Defendants respond by stating that they intend to call Dr.
Heinzl as an expert by the December 20 deadline set by the court and that his declaration includes
the required Fed. R. Civ. P. 26(a)(2)(b) disclosures.

Plaintiff’s argument that Dr. Heinzl was not present during plaintiff’s treatment is a nonstarter. As is true for any qualified expert witness, Dr. Heinzl may review plaintiff’s medical history
by referring to plaintiff’s medical records and then offer his opinion about the treatment. See Fed.
R. Evid. 703; see also Rules 702 and 803(6).
With regard to the non-disclosure of Heinzl as an expert, both sides are correct, up to a point.
Plaintiff understandably wants defendants to comply with the letter F.R. Civ. Pro. 26(a)(2), which
governs expert disclosures. On the other hand, defendants have not yet hit their December 20, 2013
deadline for providing these disclosures for Dr. Heinzl; more to the point here, the defendants have
constructively complied with the rule by including the required Rule 26(a)(2)(B) report information
in Heinzl’s declaration and by informing plaintiff in their response to his motion that they intend
to call him as an expert. As a practical matter, plaintiff already has all the information he needs, so
that his insistence on formal disclosure is a glorification of form over substance. Therefore, the court
infers that the defendants have disclosed Dr. Heinzl as their expert witness in this lawsuit. The
defendants have until December 20, 2013 to fill any gaps in their Rule 26(a)(2) required disclosures.
As a result, there is no reason to strike Dr. Heinzl’s declaration, since this would be another example
of glorifying form over substance: because the deadline to file dispositive motions deadline has not
yet passed, the defendants would, simply an amended motion for summary judgment if the court
struck their current submissions. I am not going to do that.
To assure complete fairness to plaintiff, I will give him another opportunity to respond to Dr.
Heinzl’s expert testimony. The purpose of Rule 26(a)92) is to put the opposing party on notice of
the expert's proposed testimony so that the opponent may form an appropriate response. Musser v.
Gentiva Health Services, 356 F.3d 751, 757-58 (7th Cir. 2004). Because Dr. Heinzl was not formally

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disclosed as an expert at the time defendants filed their first motion for summary judgment, plaintiff
did not receive the procedurally proper notice. Therefore, I will give plaintiff a short deadline to file
a supplement to his materials in response to defendants’ motions for summary judgment, adding
what he thinks is important to rebut Dr. Heinzl’s testimony.
In a worst-case scenario for plaintiff, if defendants had waited until the latest possible dates
to disclose Dr. Heinzl (December 20, 2013 deadline) and then had file their summary judgment
motion (January 27, 2014 deadline), then plaintiff would have had a couple of months after the
disclosure of Dr. Heinzl to file a summary judgment response. Here, several months have passed
since defendants constructively disclosed Dr. Heinzl’s required Rule 26(a)(2)(B) report information,
and plaintiff already has filed summary judgment responses. Therefore,, there is no need to give
plaintiff a comparable amount of time to file his supplemental response. I will give him until January
13, 2014 to do so, and defendants may have until January 27, 2014 to file a reply.

ORDER
It is ORDERED that plaintiff Laderian McGhee’s motion to strike the declaration of Glen
Heinzl, dkt. 102, is DENIED. Plaintiff may have until January 13, 2014 to file a supplemental
response to defendants’ motions for summary judgment, and defendants may have until January 27,
2014 to file a reply.
Entered this 13th day of December, 2013.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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