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Tucker v. United States

United States District Court, E.D. Louisiana

September 4, 2019

INELL TUCKER, ET AL.
v.
UNITED STATES OF AMERICA

          ORDER AND REASONS

          WENDY B. VITTER, UNITED STATES DISTRICT JUDGE.

         Before the Court is the Government's Motion in Limine to Exclude the Written Report and Testimony of Plaintiffs' Retained Expert Witness, Dr. Thomas Waits (the “Motion”).[1] The Motion is opposed[2] and the Government has filed a Reply.[3] For the reasons that follow, the Motion is GRANTED in part and DENIED in part.

         I. Background

         On April 18, 2018, Inell Tucker, Tanya Craft and Chukym Tucker (collectively, “Plaintiffs”), filed a Complaint in this Court, seeking damages under the Federal Tort Claims Act for the death of Terry Tucker.[4] Plaintiffs sued the United States of America as the operator of the Southeast Louisiana Veterans Healthcare Services healthcare facility in New Orleans (the “VA Hospital”), alleging that Mr. Tucker died of esophageal cancer due to the medical malpractice of his healthcare providers at the VA Hospital, including Dr. Urszula Moroz, who failed to timely diagnose and treat his condition.[5]

         The Government filed the instant Motion on July 17, 2019, seeking to exclude the written report and testimony of Plaintiffs' retained expert witness, Dr. Thomas Waits, an oncology and hematology specialist.[6] The Government asserts that Dr. Waits' expert report fails to comply with Fed.R.Civ.P. 26(a)(2)(B) because it is conclusory, fails to articulate the basis and reasons for Dr. Waits' opinions and fails to fully articulate the facts or data considered by Dr. Waits in forming his opinion.[7] Due to the conclusory nature of his report, the Government asserts that Dr. Waits' anticipated testimony should be excluded because it is not reliable under Fed.R.Evid. 702. The Government further argues that the Court should exclude Dr. Waits' expert report and prohibit him from testifying in this case under Fed.R.Civ.P. 37(c). Alternatively, if the Court finds that Dr. Waits' expert report satisfies Rule 26(a)(2)(B), the Government asserts that the Court should prevent Dr. Waits, a specialist, from offering standard of care testimony regarding Mr. Tucker's treating physician, Dr. Urszula Moroz, because she is a general practitioner.[8] The Government contends that Dr. Waits should not be allowed to opine on the standard of care of a general practitioner because he has 26 years of education, knowledge, training and experience treating cancer patients that a general practitioner like Dr. Moroz does not have.[9]

         Plaintiffs oppose the Motion, asserting that Dr. Waits' report and subsequent Declaration, dated August 7, 2019 and submitted with their Opposition brief, [10]satisfy the requirements of Fed.R.Civ.P. 26(a)(2)(B) and Fed.R.Evid. 702.[11] Dr. Waits has opined that the negligent five-month delay in diagnosis and treatment of Mr. Tucker's esophageal cancer diminished Mr. Tucker's survival and/or length of life.[12] Relying exclusively upon the new Declaration, Plaintiffs assert that Dr. Waits is qualified to render such opinions because: (1) he is board certified in internal medicine and oncology and is familiar with the standard of care for both specialties;[13](2) he is familiar with the pertinent medical literature and has published several oncology articles in peer-reviewed journals; (3) he has reviewed Mr. Tucker's medical records from the VA Hospital, Ochsner Medical Center-West Bank Campus, West Jefferson Medical Center and Metropolitan Gastroenterology; and (4) he routinely interacts with internists and family practice physicians as members of a cancer patient's treatment team.[14] Plaintiffs assert that they obtained the Declaration because they did not learn that the Government had any issues with Dr. Waits' January 4, 2019 report until the Government filed the instant Motion on July 17, 2019.[15]

         Plaintiffs further claim that Dr. Waits' report and Declaration meet the requirements of Fed.R.Civ.P. 26(a)(2)(B) because they both lay out the basis for his opinions and provide a synopsis of his anticipated testimony.[16] Alternatively, if the Court determines that Dr. Waits' report and Declaration do not meet the requirements of Rule 26(a)(2)(B), Plaintiffs request the opportunity for Dr. Waits to correct any perceived deficiencies, either before his August 14, 2019 deposition or before the August 20, 2019 discovery deadline.[17] Plaintiffs further assert that Dr. Waits' opinions are reliable under Fed.R.Evid. 702 because they are based upon his 26 years of knowledge, training and experience, in both internal medicine and oncology, as well as his knowledge of the medical literature and his review of Mr. Tucker's medical records.[18] Plaintiffs point to the Advisory Committee Notes on Rule 702, which indicate that experience alone, or in conjunction with other knowledge, skill, training or education, may provide a sufficient foundation for expert testimony.[19]

         In response, the Government first contests Plaintiffs' assertion that they were not informed of any deficiencies in Dr. Waits' report until the Government filed the instant Motion.[20] The Government asserts that its counsel repeatedly told Plaintiffs' counsel, in writing, that Dr. Waits' reports were deficient, and attached several email exchanges between counsel to support its position.[21] The Government maintains that it was not required to point out deficiencies in Plaintiffs' expert report before the applicable deadlines and that its counsel did so as a professional courtesy and in the spirit of fairness.[22] The Government then argues that Plaintiffs have implicitly admitted that Dr. Waits' January 4, 2019 report did not satisfy Fed.R.Civ.P. 26(a)(2)(B) or Fed.R.Evid. 702 by repeatedly asserting only that his “report and declaration” meet the statutory requirements.[23] The Government does not find this surprising, asserting that Dr. Waits' report, which barely exceeds one page, is “obviously and grossly conclusory.”[24]

         The Government further argues that the Court should not consider Dr. Waits' 15-page Declaration because it constitutes an untimely supplemental expert report.[25]The Government asserts that the Declaration is not properly before the Court because Plaintiffs failed to seek leave to file or produce an untimely supplemental report, as required by Fed.R.Civ.P. 16(b)(4).[26] As such, the Government claims the Declaration, and any references thereto in Plaintiffs' pleadings, must be stricken. The Government points out that under Fed.R.Civ.P. 26(e), the deadline to file supplemental expert reports is the same deadline for witness and exhibit lists, which in this case was June 17, 2019.[27] The Government asserts that Fed.R.Civ.P. 37 imposes a strict, mandatory and self-effectuating sanction for failure to comply with the expert report requirements of Rules 26(a) or (e), namely a prohibition on the use of the information or testimony unless the failure was substantially justified or is harmless.[28] The Government argues that under the four-factor test that courts apply to determine whether to exclude a witness, opinion or evidence under Rule 37, Plaintiffs have not provided an explanation for submitting an untimely supplemental expert report, the Government will be prejudiced if the Declaration is considered, a continuance would not cure the prejudice and the importance of the testimony is outweighed by the other factors.[29] Finally, the Government reiterates that Dr. Waits is not qualified to render standard of care testimony for a general practitioner.[30]

         II. Law and Analysis

         A. Dr. Waits' January 4, 2019 report, while thin, satisfies the requirements of Fed.R.Civ.P. 26(a)(2)(B).

         Federal Rule of Civil Procedure 26(a)(2)(B) provides that expert witnesses generally must provide an expert report that contains:

1. A complete statement of all opinions the witness will express and the basis and reasons for them;
2. The facts or data considered by the witness in forming them;
3. Any exhibits that will be used to summarize or support them;
4. The witness' qualifications, including a list of all publications authored in the previous 10 years;
5. A list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and
6. A statement of the compensation to be paid for the study and testimony in the case.

         According to the Fifth Circuit, “The expert report should be ‘detailed and complete,' stating the testimony that will be presented during direct examination and the reasons therefor.”[31] Thus, under Rule 26(a), expert reports must explain the “how” and “why” of the expert's opinions with specificity.[32]

         Turning to the first requirement for expert reports under Rule 26(a)(2)(B), the Court finds that Dr. Waits' January 4, 2019 report contains a statement of Dr. Waits' opinions that he will express at trial and the basis for those opinions. The report contains the following opinions:

1. There was excessive delay in diagnosing and treating Mr. Tucker's advanced esophageal cancer.
2. The delay in diagnosis and treatment likely reduced Mr. Tucker's survival or length of life.
3. Any patient who describes dysphagia and food getting “stuck in the throat” along with weight loss of 20 pounds has esophageal cancer until proven otherwise.
4. An EGD or barium swallow should have been carried out immediately.
5. It is unlikely that Mr. Tucker would have been cured of his esophageal cancer, but based on his stage of disease at diagnosis, it would have been on the order of three to six years based on the fact that his tumor was squamous cell carcinoma.
6. The slow paced evaluation of Mr. Tucker's significant dysphagia led to a diminishing of his survival.[33]

         The January 4, 2019 report further specifies that Dr. Waits formulated these opinions after reviewing all of Mr. Tucker's medical records.[34] The Court therefore finds that Dr. Waits' January 4, 2019 report satisfies the first requirement of Rule 26(a)(2)(B).

         With respect to the second factor, the facts or data considered by the witness in forming his opinions, the Court finds this requirement is also met because the January 4, 2019 report specifies that Dr. Waits' opinions are based upon his review of Mr. Tucker's medical records. The Court finds that the third requirement of Rule 26(a)(2)(B) is neutral in this case, as it appears that Dr. Waits will not use any exhibits to summarize or support his opinions because the January 4, 2019 report does not reference any exhibits. Accordingly, Dr. Waits will not be able to use any exhibits to summarize or support his opinions at trial. The Court further finds that the fourth requirement of Rule 26(a)(2)(B) is met because Dr. Waits provided a curriculum vitae with his expert report, which lists his qualifications and publications in the last 10 years.[35] However, the Court finds that the fifth and sixth factors are not met, as Dr. Waits' January 4, 2019 report fails to list the other cases in which Dr. Waits has testified as an expert in the last four years and fails to state the compensation he received for his study and testimony in this case.

         The Court finds that Dr. Waits' January 4, 2019 report is thin, but for the reasons stated above, that it just barely satisfies the requirements of Rule 26(a)(2)(B). The report contains a complete statement of all opinions that Dr. Waits will express and the basis and reasons for them, the report specifies the facts or data Dr. Waits considered in forming his opinions and Dr. Waits has provided a list of his qualifications and all publications that he has authored in the last 10 years. While the report does not mention any exhibits that will be used to summarize or support his opinions, fails to list prior cases in which Dr. Waits has testified as an expert and fails to state Dr. Waits' compensation for his report and testimony in this case, the Court finds that the three most important requirements of Rule 26(a)(2)(B) are met in this case. The Court further notes that the Government had an opportunity to depose Dr. Waits on August 14, 2019, during which the Government could have questioned Dr. Waits extensively about the deficiencies in his report, thereby minimizing any prejudice to the Government from the use of the report. Accordingly, the Court finds that Dr. Waits' January 4, 2019 expert report is admissible because it satisfies the requirements of Fed.R.Civ.P. 26(a)(2)(B).

         B. Dr. Waits will be allowed to testify at trial under Fed.R.Evid. 702.

         When expert testimony is challenged, the party seeking to present the testimony has the burden of proving by a preponderance of the evidence that the testimony satisfies Federal Rule of Evidence 702.[36] Federal Rule of Evidence 702, which governs the admissibility of expert testimony, [37] provides the following:

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 ...

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