United States District Court, D. Nevada
A. LEEN UNITED STATES MAGISTRATE JUDGE
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).
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.
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.
the close of discovery, the district judge entered an Order
(ECF No. 37) on April 4, 2017, denying defendant's motion
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
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.
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.
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.
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.
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.
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.
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).
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 ...