Infectious Disease Expert’s Supplemental Report Excluded Due to Prior Report

In this negligence case, the plaintiff sued the defendant after allegedly getting MRSA and other bacterial infections from a hot tub on the defendant’s cruise ship. 

Wendy Ketner, M.D.

Written by
— Updated on August 17, 2022

Infectious Disease Expert’s Supplemental Report Excluded Due to Prior Report

Court: United States District Court for the Southern District of Florida
Jurisdiction: Federal
Case Name: Sofillas v. Carnival Corp
Citation: 2016 U.S. Dist. LEXIS 139448

The plaintiff went into an allegedly contaminated hot tub on the defendant’s cruise ship. Afterward, he was hospitalized with MRSA and other bacterial infections. The plaintiff retained an infectious disease expert witness to opine on the causation. 

The defendant argued the expert used an unreliable methodology. Furthermore, the defendant filed a motion to exclude the expert’s supplemental reports. According to the defendant, the expert’s supplemental reports were trying to affirm the view expressed in the initial report 

Facts

The plaintiff sued the defendant after he allegedly suffered injuries from a hot tub on the defendant’s cruise ship. The plaintiff claimed that dangerous levels and strains of bacteria contaminated the hot tub. After the cruise, he had to be hospitalized for MRSA and other bacterial infections in his perineum and scrotum. The plaintiff then had to undergo several long periods of hospitalization, treatment, and surgery. The plaintiff retained an epidemiologist and expert in infectious diseases as a scientific causation expert to support his case. However, the defendant contested the expert’s qualifications for presenting his expert report and further argued that he had used unreliable methodology.

The Plaintiff’s Infectious Disease Expert Witness

The infectious disease expert witness prepared an expert report addressing the ongoing MRSA infection issues the plaintiff suffered from. Based on his experience as a medical doctor and epidemiologist of infectious diseases, he opined that the plaintiff had acquired repeated MRSA skin infections as a consequence of his original MRSA infection. In the expert’s view, these infections are likely to continue to evolve for years to come. Additionally, according to the expert, these infections will likely raise his risk of developing a potentially life-threatening MRSA infection

He also stated that the plaintiff would have to remain vigilant in the development of such infections. The expert also opined that the plaintiff should pursue early and urgent medical examination and care to prevent the development of more serious infections. The expert believed that the hot tub was the likely source of infection. Furthermore, the expert opined that it was unlikely that the infection resulted from any of the sources the defendant or its experts had proposed.

The infectious disease expert witness issued two supplemental reports. However, the defendant filed a motion to exclude the expert’s supplemental reports. The defendant maintained that the expert was inappropriately trying to affirm the view expressed in the initial report. Furthermore, the defendant insisted that the second supplemental document should be excluded because it was released after the deposition of the expert, during which the defendant claimed to have revealed the expert’s unreliable methodology.

Discussion

The defendant argued that the expert’s epidemiological experience did not qualify him to conclude that the second MRSA outbreak was a recurrence. The justification for this argument was that the expert had never diagnosed a chronic MRSA disease. The expert also hadn’t detected or treated any MRSA patient at any time in his career. The court didn’t find that a previous diagnosis of MRSA was a required qualification for the expert to give his opinion.

The defendant questioned the expert’s methodology on the grounds that he did not conduct any laboratory tests or examine the plaintiff. The defendant also asserted that the expert did not compare antibiograms of the two MRSA infections. Nevertheless, the court noted that the expert checked the plaintiff’s medical records and spoke to the plaintiff. Moreover, the expert relied on his own general experience with regard to MRSA to formulate the opinion set out in the initial report. The court believed that these practices made the expert’s methodology adequately reliable to pass the Daubert test. The defendant’s problems were better addressed in the form of “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof,” citing Allison v. McGhan Med. Corp.

Court’s Opinion on Supplemental Reports

Supplemental reports, according to the court, are only allowed if the prior report “is incorrect or incomplete and, thus, deceptive,” quoting In re Denture Cream. The court noted that the inclusion of a supplemental expert report can not be used as a way of improving a prior opinion or fixing an insufficient or incomplete preparation of a prior document, citing Cochran v. Brinkmann Corp., among other cases. In his supplemental reports, the expert had cited recent scholarly articles and contrasted the antibiograms from plaintiff’s two MRSA infections. These were, in the court’s opinion, unacceptable efforts to strengthen the view set out in the initial report. The court thus excluded the supplemental reports and restricted the expert’s supplemental testimony to his initial report.

Ruling

The court granted the defendant’s motion to exclude supplemental reports of the infectious disease expert witness.

Key Takeaways for Experts

This case demonstrates the importance of incorporating all of your findings and sources into your initial expert report. In this case, the court excluded the expert’s supplemental report because it bolstered the opinion in his prior report. As stated in the court’s decision, a supplemental report can’t improve a prior opinion. It also can’t fix an insufficient or incomplete initial report. Your expert report should fully encompass the facts and rationale behind your expert opinions. It’s important to remember that the court will only allow any supplemental report if the initial report is incorrect or incomplete.

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