Young, Frank et al v. Marshfield Clinic Health System, Inc. et al

Filing 60

ORDER The motions filed by defendants Injured Patients and Families Compensation Fund, Dkt. 53 , Marshfield Clinic and Holly Frost, Dkt. 54 , and defendant Aspirus Medical Group, Inc. and Aspirus, Inc., Dkt. 55 , to join Cynthia Henry's motion to strike are GRANTED. Henry's motion to strike plaintiffs' pediatric experts as cumulative, Dkt. 47 , is GRANTED. Plaintiffs may have until May 22 to disclose to defendants which one of their four pediatric expert witnesses plaintiffs will be calling at trial. Signed by District Judge James D. Peterson on 05/09/2024. (acd)

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

FRANK YOUNG and MICHELLE HAZEN,
individually and as next friends for
their minor son, D.Y.,
Plaintiffs,
v.
OPINION and ORDER
INJURED PATIENTS AND FAMILIES
COMPENSATION FUND, MARSHFIELD
CLINIC HEALTH SYSTEM, INC., MARSHFIELD
CLINIC, INC., ASPIRUS, INC., ASPIRUS MEDICAL
GROUP, INC., CYNTHIA J. HENRY, D.O, and
HOLLY M. FROST,

23-cv-235-jdp

Defendants.
Plaintiffs Frank Young and Michelle Hazen are the parents of D.Y. They are suing two
physicians and their employers for their alleged failure to properly diagnose and treat swelling
in D.Y.’s kidneys caused by the accumulation of urine, leading to permanent damage to D.Y.’s
kidneys, urinary tract, and bladder.
Defendant Cynthia Henry has filed what she calls a motion to strike cumulative experts.
Dkt. 47. Henry says that plaintiffs have disclosed four experts on the standard of care: David
Rusk, Herschel Lessin, Julie Ferguson, and Stephen Harris. All of them are pediatricians, and
all of them offer opinions on why they believe defendants were negligent. Henry says that
plaintiffs have not identified any differences in the opinions that the four experts will offer, so
plaintiffs should be required to choose which of the four experts they will actually be calling at
trial. The other defendants have joined Henry’s motion. Dkt. 53; Dkt 54; Dkt. 55.
In response, plaintiffs say that defendants’ motion is premature because the parties only
recently submitted their Rule 26(a)(2) disclosures, and plaintiffs represent that their experts

will not offer cumulative testimony. The court is sensitive to the fact that discovery is ongoing,
and that plaintiffs may not be able to predict with certainty exactly how their expert witnesses
will perform under examination. But every expert will be limited to the opinions disclosed in
their reports. If plaintiffs identified any meaningful differences among the opinions or
explained what unique purpose each expert served, the court would deny Henry’s motion. But
plaintiffs point to no differences in their experts’ opinions.
Plaintiffs say generally that “plaintiffs’ retained pediatrician expert witnesses bring
unique qualifications and perspectives to this case and will offer unique opinions, and so their
opinions will not be cumulative.” Dkt. 56, at 13. But plaintiffs provide no examples of how
their experts’ testimony will be different. Instead, plaintiffs say that their “decisions on which
experts to call and on what topics will be heavily influenced by what future discovery reveals
and the future rulings of the court.” Id. That vague representation is unhelpful. It gives no
guidance to defendants or the court on how any one expert provides an insight that the other
three cannot.
Proceeding with four experts offering the same opinions will lead to a waste of time and
resources. Waiting until trial to strike cumulative witnesses would accomplish nothing but
increase costs for all parties. Defendants should not have to depose four witnesses offering the
same opinions in an attempt to uncover possible variations.
Plaintiffs devote much of their brief to explaining why all of their pediatric experts are
well qualified. But that is a separate issue. Henry is not seeking to strike plaintiffs’ experts as
unqualified or unreliable under Federal Rule of Evidence 702. Rather, Henry’s position is
simply that plaintiffs should choose one expert to testify on each topic.

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The parties dispute whether the court has authority under Federal Rule of Procedure 1,
11(b)(1), or 26(b)(1) or Federal Rule of Evidence 403 to strike cumulative witnesses before
trial. Rule 1 requires courts to apply the rules so as to obtain a “just, speedy, and inexpensive
determination” of the case; Rule 11(b)(1) prohibits parties from filing documents to
“needlessly increase the costs of litigation”; Rule 26(b)(1) allows the court to limit discovery
“when the burden or expense of the proposed discovery outweighs its likely benefit”; Rule 403
allows the court to exclude cumulative evidence.
All of those rules support the general view that parties should litigate their case
efficiently and without excessive waste. But the court need not decide whether any of those
rules is exactly on point because it is well established that a district court has inherent authority
to “manage its docket as efficiently and speedily as possible, particularly where there is no risk
of unfair prejudice to the litigants.” Bauer Mechanical, Inc. v. Joint Arbitration Bd. of Plumbing
Contractors’ Ass’n and Chicago Journeymen Plumbers' Local Union 130, U.A., 562 F.3d 784, 790
(7th Cir. 2009). The relief defendants request fits comfortably within that authority. And
plaintiffs identify no unfair prejudice from requiring them to disclose only noncumulative
experts. The court will grant Henry’s motion.

ORDER
IT IS ORDERED that:
1. The motions filed by defendants Injured Patients and Families Compensation Fund,
Dkt. 53, Marshfield Clinic and Holly Frost, Dkt. 54, and defendant Aspirus Medical
Group, Inc. and Aspirus, Inc., Dkt. 55, to join Cynthia Henry’s motion to strike are
GRANTED.

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2. Henry’s motion to strike plaintiffs’ pediatric experts as cumulative, Dkt. 47, is
GRANTED. Plaintiffs may have until May 22 to disclose to defendants which one
of their four pediatric expert witnesses plaintiffs will be calling at trial.
Entered May 9, 2024.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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