United States District Court, D. New Mexico
JOHN FAURE, as Personal Representative for the Wrongful Death Estate of GLORIA QUIMBEY, Deceased. Plaintiff,
COMMUNITY HEALTH SYSTEMS PROFESSIONAL SERVICES CORPORATION, LAS CRUCES MEDICAL CENTER, LLC, doing business as Mountain View Regional Medical Center, ACCOUNTABLE HEALTHCARE STAFFING, INC., ACCOUNTABLE HEALTHCARE HOLDINGS CORPORATION, MEDASSETS WORKFORCE SOLUTIONS, RONALD LALONDE, AFFILION, LLC, and JOEL MICHAEL JONES, Dr., Defendants, and LAS CRUCES MEDICAL CENTER, LLC, Cross Claimant,
ACCOUNTABLE HEALTHCARE HOLDINGS CORPORATION, ACCOUNTABLE HEALTHCARE STAFFING, INC, and MEDASSETS WORKFORCE SOLUTIONS, Cross Defendants.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendant Dr. Joel Michael
Jones and Affilion, LLC's (together, “Affilion
Defendants”) Motion for Summary Judgment on All Claims
(“Motion for Summary Judgment”), filed April 29,
2016. (Doc. 134). Plaintiff John Faure
(“Plaintiff”), as personal representative for the
estate of Gloria Quimbey (“Ms. Quimbey”), filed a
response on May 27, 2016, and a surresponse on September 27,
2016, while Affilion Defendants filed a reply on June 24,
2016, and a surreply on October 11, 2016. (Docs. 150, 174,
before the Court is Affilion Defendants' Motion to Strike
New or Undisclosed Expert Opinions Contained in the
“Updated” Report of Plaintiff's Expert, Dr.
John C. Stein, Jr. (“Motion to Strike”), filed on
October 11, 2016. (Doc. 238). Plaintiff filed a response on
October 25, 2016, and Affilion Defendants filed a reply on
November 8, 2016. (Docs. 243, 258). Having reviewed the
motions, the accompanying briefs, and relevant law, the Court
GRANTS both Affilion Defendants' Motion for Summary
Judgment and Motion to Strike.
a wrongful death lawsuit concerning the death of Gloria
Quimbey. Plaintiff originally filed his Complaint for
Wrongful Death, Negligence, Misrepresentation, and Punitive
Damages (“Complaint”) on May 9, 2014, in the
First Judicial District Court of the State of New Mexico.
(Doc. 1-1). Defendant Las Cruces Medical Center, LLC, d/b/a
Mountain View Regional Medical Center (“MVRMC”),
removed the case to this Court on June 17, 2014. (Doc. 1).
Complaint alleges six counts. Count I is a wrongful death
claim against all defendants under the New Mexico Wrongful
Death Act, NMSA 1978, § 41-2-1 (Rep. Pamp. 1996). (Doc.
1-1) at 14. Count II is a negligence claim against Community
Health Systems Professional Services Corporation and MVRMC
Defendants (together, “CHS Defendants”).
Id. at 14-20. Count III is a negligence claim
against Accountable Healthcare Staffing, Inc., Accountable
Healthcare Holdings Corporation, MedAssets Workforce
Solutions, and Ronald Lalonde (“AHS Defendants”).
Id. at 20-22. Count IV is a negligence claim against
Affilion Defendants. Id. at 22-24. Count V is a
claim for negligent or intentional misrepresentation against
CHS Defendants. Id. at 24-26. Finally, Count VI is a
claim for punitive damages against all defendants.
Id. at 26. Affilion Defendants now move to strike
Plaintiff's expert report because it is untimely and
contains new opinions and for summary judgment on all claims
against Affilion Defendants.
Standard of Review
Standard of Review for Motion to Strike Expert Report
Rule of Civil Procedure 26(a)(2) requires a party to disclose
the identity of expert witnesses. Expert witnesses must
provide a report that contains, among other requirements,
“(i) a complete statement of all opinions the witness
will express and the basis and reason for them; [and] (ii)
the facts or data considered by the witness in forming
them.” Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii). Pursuant to
Rule 26(a), a party may supplement expert reports, if the
party discovers that a disclosure is “incomplete or
incorrect” in a “material respect.”
Id. at 26(e)(1)(A).
Standard of Review for Motion for Summary Judgment
judgment is appropriate if the moving party shows
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). Once the moving party meets
its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden shifts to the nonmoving
party to set forth specific facts showing that there is a
genuine issue for trial. See Schneider v. City of Grand
Junction Police Dep't, 717 F.3d 760, 767 (10th Cir.
2013). A dispute over a material fact is
“genuine” only if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The Court views
the facts in the light most favorable to the nonmoving party
and draws all reasonable inferences in the nonmoving
party's favor. Tabor v. Hilti, Inc., 703 F.3d
1206, 1215 (10th Cir. 2013).
Facts and Reasonable Inferences Viewed in the Light Most
Favorable to Plaintiff
Ms. Quimbey's Hospital Care
Quimbey was admitted to the MVRMC emergency room
(“ER”) in the afternoon of December 11, 2012,
after experiencing stroke like symptoms at home. (Doc. 24-1)
at 11, ¶ 40. Defendant Dr. Joel Michael Jones
(“Dr. Jones”) acted as Ms. Quimbey's
attending emergency physician while she was in the ER. (Doc.
150-1) at 33:8-9. Dr. Jones performed an initial neurological
examination to determine if Ms. Quimbey should receive tPA,
which is a medication given to potential stroke victims in
order to break up blood clots. Id. at 37:15-20,
38:9-24. At the time of his initial examination, Dr. Jones
planned to give Ms. Quimbey tPA. Id. at 37:20-23.
MVRMC stroke policy in effect at the time stated that when a
“Code Stroke” was called, the pharmacy would
prepare the tPA. (Doc. 150-10). Although once a “Code
Stroke” was initiated, tPA was prepared by the pharmacy
and taken to the ER, it would not be given to a patient
without a doctor's order. (Doc. 150-3) at 13-18; (Doc.
150-8) at 91:11-17, 102:23-103:4. Here, a “Code
Stroke” was called for Ms. Quimbey and the pharmacy
prepared the tPA per protocol. (Doc. 134-2) at 104:2-10; (Doc.
134-7) at 144:18-23; (Doc. 174-1) at 148:21-149:1, 150:11-25.
the “Code Stroke” was initiated, Rachel Bartlett
(“Ms. Bartlett”), a MVRMC pharmacist, stated that
she spoke to Dr. Jones on the phone and he told her
“that the patient's condition seemed to be
improving but (since we had already mixed the [tPA])[, ] we
could bring it down to the [ER] for him to have if he needed
it.” (Doc. 235-1); (Doc. 235-2) at 74:19-75:18.
Nonetheless, Ms. Bartlett also testified that, per hospital
policy, the tPA would have been delivered to the ER even
without Dr. Jones asking for it to be delivered. (Doc. 236-2)
at 122:15-21. The tPA was delivered to the ER from the
pharmacy; however, it is not clear who in the ER received the
(Doc. 150-3) at 310:23-311:5, 311:11-14, 312:1-5.
Quimbey underwent a CT scan in the ER, which showed that she
had not experienced a stroke and her stroke symptoms resolved
within two hours after her arrival in the ER. (Doc. 24-1) at
12, ¶ 42. Dr. Jones examined Ms. Quimbey after her CT
scan, found that her condition had improved, and determined
that “marked improvement is one of the
contraindications to giving tPA.” (Doc. 150-1) at
38:3-8. Dr. Jones did not administer tPA to Ms. Quimbey.
several hours in the ER, Ms. Quimbey was admitted to the
telemetry unit for observation at 3:30 p.m. on December 11,
2012. (Doc. 134-2). The telemetry unit did not use the same
electronic system as the ER, so all orders for medications
from the ER were supposed to be automatically deleted once an
individual transfers to a different unit of the hospital.
(Doc. 134-7) at 71:20-21, 74:8-75:19, 109:13-20. However, in
this case tPA was sent up to the telemetry unit when Ms.
Quimbey was admitted. (Doc. 150-3) at 312:1-3; (Doc. 150-8)
at 190:6-10. In the telemetry unit, an order for tPA was
listed on Ms. Quimbey's Medication Administration Record
(“MAR”), which is used in the Telemetry unit but
not the ER. (Doc. 134-3) at 87:19-88:6; (Doc. 134-3)
76:11-77:1; (Doc. 150-7). It is the admitting physicians'
job to ensure that a patient in the telemetry unit has the
correct medication. (Doc. 134-7) at 75:7-11. Dr. Luis
Rivera-Crespo is listed as the admitting physician on the
11:30 p.m. on December 11, 2012, a telemetry nurse, Ronald
LaLonde (“Nurse LaLonde”) administered tPA to Ms.
Quimbey. (Doc. 134-2), (Doc. 134-9), (Doc. 134-10) at
93:9-12. Nurse LaLonde gave Ms. Quimbey the medication
without looking for a doctor's order, although it was
hospital protocol to do so, and without consulting with a
doctor or a charge nurse. (Doc. 134-10) at 101:8-10,
143:24-144:2, 231:8-232:9. Nurse LaLonde testified that he
knew tPA was only supposed to be given in the ER within three
hours of the onset of stroke symptoms. Id. at
73:1-9, 96:9-12, 143:3-9, 214: 18-22. After Ms. Quimbey was
given the tPA she fell into a coma and eventually died. (Doc.
24-1) at 13, ¶ 48. The Autopsy Report states that Ms.
Quimbey “died of intracerebral hemorrhage due to
inadvertent administration of anticoagulant therapy
[tPA].” (Doc. 150-13).
Dr. John C. Stein, Jr's Expert Report
expert disclosure deadline was March 17, 2016, and
subsequently extended to March 24, 2016, at which time
Plaintiff timely served Dr. John C. Stein, Jr.'s
(“Dr. Stein”) original expert report. (Docs. 85,
117, 125). Expert disclosures for all Defendants were due on
April 25, 2016. (Doc. 117). On September 27, 2016, Plaintiff
served an updated expert report written by Dr. Stein. (Doc.
238-3). Plaintiff intends to introduce the testimony of Dr.
Stein to discuss tPA protocol. (See Docs. 238-1,
original expert report, Dr. Stein first summarizes the
materials he reviewed, including Mr. Quimbey's medical
records and MVRMC's stroke and emergency department
policies and protocol. (Doc. 238-1) at 1. Dr. Stein next lays
out a chronology of events from the time Ms. Quimbey entered
the ER on December 11, 2012, to her death on December 12,
2012. Id. at 1-2. Dr. Stein discusses the
administration of tPA in general and the use of tPA in this
case. Id. at 2-3. Finally, Dr. Stein states his
conclusions. Id. at 3. With regard to Dr. Jones, Dr.
Stein opined that “the hospital stroke protocol for the
initiation of tPA and the initial physician order for the
preparation of the tPA were appropriate.” Id.
However, Dr. Stein concluded in his original expert report
that “[t]he order for TPA that was initiated in the
emergency department was never cancelled, which is below the
standard of care.” Id.
drafting his updated expert report, Dr. Stein reviewed
thirteen depositions and the briefing for Affilion
Defendants' Motion for Summary Judgment. (Doc. 238-3) at
1. Dr. Stein again described the chronology of events and
administration of tPA. Id. at 3-6. Whereas in the
original expert report, Dr. Stein determined that Dr. Jones
ordered the tPA; in the updated report, Dr. Stein states
“the hospital stroke protocol for the initiation of a
code stroke, including the tPA preparation was
appropriate.” Id. at 3. Further, Dr. Stein
noted that “[a]fter Dr. Jones determined the patient
was no longer a candidate for tPA therapy, the onus was on
him to assure that the protocol for its administration was
clearly terminated.” Id. Dr. Stein concluded
that “[t]he order for TPA that was initiated in the
emergency department was never cancelled definitively,
ultimately a responsibility of the treating physician, which
is below the standard of care.” Id. at 4.
Motion to Strike
Defendants now move the Court to strike Dr. Stein's
updated expert report in its entirety. Affilion Defendants
contend that the report should be excluded because the report
was untimely and introduces new opinions.
initial matter, Plaintiff contends that a motion to strike is
“not the proper mechanism to exclude expert
testimony.” (Doc. 243) at 1, n. 1. Plaintiff cites
Peshlakai v. Ruiz, in which the Court held that Rule
12(f) did not permit the Court to strike a non-retained
witness, because Rule 12(f) only permits the Court to strike
materials in pleadings. No. CIV 13-0752 JB/ACT, 2013 WL
6503629, *1, *21 (D.N.M.) (unpublished). Affilion Defendants
did not bring the Motion pursuant to Rule 12(f), but instead
pursuant to Rule 26(a)(2). Although typically styled as a
Motion to Exclude Expert Testimony, the Motion to Strike is
Dr. Stein's Opinions in the ...