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Neaman v. United States

United States District Court, D. Nevada

February 7, 2018

SPENCER NEAMAN, et al., Plaintiff,



         Before the court is the government's Motion to Strike Plaintiffs' Amended Expert Disclosures (ECF No. 49). The court has reviewed the motion, plaintiffs' Response (ECF No. 51), and the government's Reply (ECF No. 52).


         The Complaint (ECF No. 1) in this case was filed February 4, 2016. This is a medical malpractice action brought on behalf of the parents of F.N., a minor child. The child was a 13-year-old girl when she was taken for care and treatment at a federally funded rural health facility in Wendover, Nevada. Her parents brought her to the Wendover Community Health Center on March 4, 2013, for complaints of abdominal pain which the child beginning three days prior. She was diagnosed with gastroenteritis and an upper respiratory infection, treated and released. Antibiotic therapy and a recommended specific diet was prescribed for her. On March 9, 2013, when her condition had not improved, her parents took her to Primary Children's Medical Center in Salt Lake City for further evaluation. She was seen in the emergency room, diagnosed with septic shock, intra-abdominal abscesses and bowel perforation, vomiting, and respiratory distress, and admitted to the pediatric intensive care unit. After she was stabilized, she was taken to the operating room where doctors found she had a perforated appendix with generalized peritonitis. She remained in the hospital for more than a month in critically ill condition until released to an intensive rehabilitation therapy and treatment center on April 17, 2013 where she remained until May 23, 2013. It is undisputed that she suffered a spinal cord injury characterized as tetraplegia, more commonly called quadriplegia. She is confined to a wheelchair, and requires 24/7 care to attend to her most basic needs.

         Counsel for plaintiffs filed a proposed discovery plan and scheduling order (ECF No.12) which requested special scheduling review. Although the parties were in agreement concerning most of the proposed deadlines, they disagreed about the deadlines for disclosing initial and rebuttal experts. The United States asked that the court order deadlines consistent with the requirements of LR 26-1(e) (now LR 26-1(b). Plaintiffs requested that initial expert disclosures be due 120 days before the close of discovery, and rebuttal expert disclosures 28 days before the close of discovery. The court proposed plan advised the court that a substantial amount of discovery had already taken place because plaintiffs had previously filed in state court action in early 2013. When it was determined that the Federal Tort Claims Act applied, the United States removed it on August 14, 2014. Discovery was substantially completed by December 2015 when government counsel indicated she intended to file a motion to dismiss for lack of subject matter jurisdiction for failure to comply with the notice requirements of the FTCA. Although plaintiffs' counsel disagreed with this analysis the parties eventually agreed the first action would be voluntarily dismissed and this case refiled. However, plaintiffs' made it clear he wanted to proceed expeditiously and that the parties would not engage in a “do-over.” The court set the matter for hearing an after hearing from both sides entered a Discovery Plan and Scheduling Order (ECF No. 21) June 10, 2016 which established a June 24, 2016 deadline for disclosing experts. Discovery was completed and closed on September 30, 2016.

         After the close of discovery, the district judge entered an Order (ECF No. 37) on April 4, 2017, denying defendant's motion to dismiss.

         On May 10, 2017, plaintiff filed a Motion to Amend Expert Disclosures (ECF No. 40) to substitute a new life care expert and supplement previous expert reports. Plaintiff timely disclosed an expert life care planner, Beverly Krensky, within the time allowed by the discovery plan and scheduling order. Ms. Krensky prepared an expert report and was deposed before the discovery cutoff. However, after the defendant's motion to dismiss was denied, counsel for plaintiffs communicated with all of their experts to update them that a trial date would be set. Ms. Krensky responded by advising plaintiffs' counsel that she had taken a job with the Veteran's Administration and was no longer willing to serve as plaintiffs' expert at trial. Plaintiffs therefore requested leave to substitute another life care planner for Ms. Krensky. Before the motion to substitute was filed, counsel for the government agreed to allow a substitution, but only if plaintiffs' new life care planner merely adopted the opinions of Ms. Krensky. Counsel for plaintiffs declined to accept this limitation and filed a Motion to Amend Expert Disclosures (ECF No. 40). The motion also sought leave to amend the disclosures of the timely disclosed economic expert who had done the mathematical calculations to reduce the life care planner's opinions concerning future care to present value.

         At a hearing on the motion to substitute on June 12, 2017, the government initially argued plaintiffs could and should attempt to obtain a statutory waiver from the VA to allow Ms. Krensky to testify. Plaintiffs opposed this arguing that Ms. Krensky did not want to testify given her new employment, and that plaintiffs were unwilling to waive her conflict of interest. The government argued that if substitution was allowed, strict limitations should be imposed on the opinions a new life care planner could provide. The government also opposed plaintiffs' request to amend the expert witness disclosures of the economist who calculated the present value of the life care plan prepared by the prior expert, and opposed any modification of plaintiffs' remaining expert witness disclosures, specifically modifications of the opinions of plaintiffs' physical medicine and rehabilitation expert, Dr. Gooch.

         Counsel for the government argued that it did not retain a rebuttal physical medicine, or rehabilitation specialist as an expert in its case in chief relying upon plaintiffs existing expert designations. However, the United States requested leave to designate a physical medicine and rehabilitation doctor in the event the substituted life care planner relied on new or additional opinions of plaintiffs' experts.

         Counsel for plaintiffs indicated that he did not anticipate that his physical medicine and rehabilitation doctor, Dr. Gooch, would change her opinions. Rather, he anticipated that, consistent with the procedure followed with his prior life care planner, his substitute life care planner would have Dr. Gooch review the recommendations to determine whether Dr. Gooch agreed that the recommendations were supported by her own opinions on the minor child's future needs.

         The court granted the motion to substitute the life care planner and precluded the plaintiffs from providing the substitute life care planner with new information or opinions not made available to the original life care planner. The court also granted the request to amend the economic expert's report to recalculate the mathematical computations based on the substitute life care planner's opinions and report. However, the court made it clear that in granting the request to substitute the life care planner, and amend the economist's report to re-compute the mathematical computations based on the substitute expert's report, the plaintiffs would not be entitled to an “end around” or a “do over” to patch holes in the prior experts' opinions.

         The court gave the plaintiff 30 days in which to serve supplemental expert reports and continued the matter for further status hearing on July 20, 2017, to address whether the substituted expert's life care plan altered the landscape such that the United States should have the opportunity to disclose additional rebuttal experts or supplement their rebuttal reports.

         At the July 20, 2017 hearing, government counsel indicated that she believed plaintiffs' counsel had violated the court's prior order regarding the limitations imposed on the substitute life care plan expert and amended economic expert's report in several respects. As a result, she indicated the United States intended to file a motion to strike the amended expert disclosures in their entirety. However, if the court “allowed the amended disclosures to stand” the United States wanted an opportunity to retain a physical and rehabilitation medical expert.

         Plaintiffs opposed this request indicating that the government had not previously disclosed a physical medicine and rehabilitation expert before the expert disclosure deadline. Plaintiffs' counsel argued that the court allowed the substitute life care planner to work with plaintiffs' currently retained physical and medical rehabilitation expert to create a new life care plan. Plaintiffs' counsel claimed he was only aware of one aspect of the new life care plan that was added based on new opinions of Dr. Gooch. This was the category of expense related to exoskeleton technology. Plaintiffs' counsel indicated that he did not understand how this recommendation would open the door for the United States to retain a physical medicine and rehabilitation expert. He also stated that he would prefer to “remove that aspect of the life care plan than have the opportunity for them to designate an entirely new witness.” See Transcript of July 20, 2017 hearing 8:17 - 9:8 (ECF No. 48).

         It was apparent that the parties had not discussed whether, and if so, in what field the government should be permitted to designate an additional rebuttal expert before the July 20, 2017 hearing. Neither side had provided the court with a copy of the original or amended reports of the experts involved in the parties' disputes. The court indicated that it was not at all inclined to strike plaintiffs' new life care planner as an expert in the absence of extraordinarily persuasive arguments supporting the United States request. However, the court indicted that it would enforce its ...

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