Court: United States District Court for the Northern District of Mississippi, Oxford Division
Case Name: Guthrie v. Quitman County Hosp., LLC
Citation: 2014 U.S. Dist. LEXIS 183160
In this wrongful death case, the plaintiff moves to exclude the defendant’s radiology expert witness on a technicality: the defense counsel’s expert qualification disclosure was tardy. The court, however, notes under Federal Rule of Civil Procedure 37(c)(1), the disclosure may still be recognized since its lateness was “harmless”. In fact, the court found the expert’s training and experience would help the trier of fact in this case.
This case demonstrates the importance of deadlines throughout the case lifecycle, as well as the necessity for full and accurate expert disclosure. Much of this case’s conflict came down to counsel’s logistical missteps but experts should also understand the critical nature of on-time, complete expert reports—and how opposing counsel may try to use any errors as grounds for exclusion.
The plaintiff, the son of the deceased, filed this wrongful death against the nursing home caring for his father at the time of his death. The plaintiff alleged that the physicians, nurses, and other employees of the nursing home acted negligently in treating his father’s dementia and he was “overly sedated.” He was then transferred to the emergency room where he was diagnosed with healthcare-associated pneumonia with acute respiratory distress, acute renal failure, severe protein-calorie malnourishment, and septic shock. He was intubated and passed away five days later. At trial, the plaintiff challenged the defendant’s radiology expert witness, claiming he did not qualify as an expert in radiology.
The Defendant’s Radiology Expert Witness
The defendant’s radiology expert held a doctorate in pharmacy and a fellowship with the American College of Clinical Pharmacy (FCCP). The plaintiff challenged the expert’s inclusion for two reasons. First, the plaintiff asserted the expert could not opine on the standard of care applicable to the defendant because he was not a medical doctor. Second, the plaintiff claimed that any of the expert’s opinions on radiology must be excluded since he was not a radiology expert and the defendant had submitted the expert’s radiology qualifications after the deadline for such a designation. Based on the initial expert report without the qualifications stated in the supplementary report, the plaintiff concluded the expert was not qualified to give expert opinions on radiology.
In response, the defendant argued that, as a pharmacotherapist, their expert was able to provide expert testimony as to the standard of care in this case. Further, the defendant argued that the plaintiff’s motion to exclude the radiology testimony was just contesting the adequacy of his expert disclosure, however per L.U.Civ. R 26(a)(3), the time limit for filing a Daubert challenge had expired.
The court noted that an expert witness must only comply with the requirements set out in the Fed. R. Evid. 702. The court further noted that, nonetheless, the expert’s skill, training, and experience in pharmacology and assisting physicians in pharmacological choices would undoubtedly help the trier of fact in assessing the reasonableness of the defendant’s conduct.
However, the court disagreed with the primary arguments from both sides. First, the court disagreed with the defendant’s argument that the plaintiff had missed their chance to object since the deadline was on the same day they received the expert report. This would have been inconsistent with due process and the interests of justice. Plus, this would have deprived the plaintiff of a meaningful opportunity to respond. Thus, the plaintiff’s objection remained valid despite being past the deadline.
The court also disagreed with the plaintiff’s claim that the expert testimony on radiography should be excluded. One of the disclosure requirements of Fed. R. Civ. P. 26(a)(2)B) is that the expert report should include “the witness’s qualifications.” This particular disclosure was technically late since it was included in the supplement report submitted after the deadline.
But, the court noted that Fed. R. Civ. P. 37(c)(1) provides a remedy: if the party fails to provide evidence as needed by Rule 26(a), the party may not use the information or the witness unless the deficiency is harmless or has been reasonably justified. Though the court could use its power to exclude the expert’s testimony on radiography, the court found the tardy qualification disclosure to be harmless. The court further noted that the plaintiff chose not to depose the expert even though they had the opportunity to do so. Additionally, the qualifications did not directly relate to the substantive issue that the expert testimony was meant to address, so to allow the supplementary report did not change or add to the expert’s testimony. Finally, the court recognized that the expert’s credentials, as set out in the supplementary report, were sufficient to allow him to testify as a radiology expert witness in this case.
The plaintiff’s motion to exclude the testimony of the defendant’s radiology expert witness was denied.
Key Takeaways for Experts
Experts should stay aware of all court-related deadlines and work closely with their hiring attorney to understand the full expectations of their expert report for disclosure purposes.