United States District Court, E.D. Louisiana
INELL TUCKER, ET AL.
UNITED STATES OF AMERICA
ORDER AND REASONS
B. VITTER, UNITED STATES DISTRICT JUDGE.
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”). The Motion is opposed and the
Government has filed a Reply. For the reasons that follow, the
Motion is GRANTED in part and DENIED
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. 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.
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. 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. 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. 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.
oppose the Motion, asserting that Dr. Waits' report and
subsequent Declaration, dated August 7, 2019 and submitted
with their Opposition brief, satisfy the requirements of
Fed.R.Civ.P. 26(a)(2)(B) and Fed.R.Evid. 702. 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. 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;(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. 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.
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.
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. 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. 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.
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. 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. 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. 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. The Government does not find this
surprising, asserting that Dr. Waits' report, which
barely exceeds one page, is “obviously and grossly
Government further argues that the Court should not consider
Dr. Waits' 15-page Declaration because it constitutes an
untimely supplemental expert report.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). 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. 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. 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. Finally, the
Government reiterates that Dr. Waits is not qualified to
render standard of care testimony for a general
Law and Analysis
Dr. Waits' January 4, 2019 report, while thin, satisfies
the requirements of Fed.R.Civ.P. 26(a)(2)(B).
Rule of Civil Procedure 26(a)(2)(B) provides that expert
witnesses generally must provide an expert report that
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
3. Any exhibits that will be used to summarize or support
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
6. A statement of the compensation to be paid for the study
and testimony in the case.
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.” Thus, under Rule 26(a), expert reports
must explain the “how” and “why” of
the expert's opinions with specificity.
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
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
6. The slow paced evaluation of Mr. Tucker's significant
dysphagia led to a diminishing of his survival.
January 4, 2019 report further specifies that Dr. Waits
formulated these opinions after reviewing all of Mr.
Tucker's medical records. The Court therefore finds that
Dr. Waits' January 4, 2019 report satisfies the first
requirement of Rule 26(a)(2)(B).
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. 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.
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
Dr. Waits will be allowed to testify at trial under
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. Federal Rule of Evidence 702, which
governs the admissibility of expert testimony,  provides the
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