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Salzman v. United States

United States District Court, D. New Mexico

December 30, 2019

HOLLY SALZMAN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          THE HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendant United States of America's Motion in Limine to Exclude Expert Testimony (the “Motion”), (Doc. 54), filed November 19, 2019; Plaintiff Holly Salzman's Response to Defendant's Motion in Limine to Exclude Expert Testimony (the “Response”), (Doc. 59), filed December 10, 2019; and Defendant's Reply to Plaintiff's Response (Doc. 59) to Motion in Limine to Exclude Expert Testimony (the “Reply”), (Doc. 62), filed December 20, 2019. In accordance with Federal Rule of Civil Procedure 73(b), all parties have consented to the Undersigned to conduct dispositive proceedings and issue a final judgment in this matter. See (Doc. 17); 28 U.S.C. § 636(c). Having reviewed the parties' filings and the relevant law, the Court finds the Motion is well-taken and shall be GRANTED IN PART and DENIED IN PART.

         I. Background

         This case arises from medical care Plaintiff Holly Salzman received at the Raymond G. Murphy Veterans Affairs Medical Center (the “VA”) in Albuquerque, New Mexico. (Doc. 54 at 1). On August 19, 2016, Ms. Salzman underwent left-knee surgery at the VA, performed by orthopedic surgeon Dr. Paul D. Lesko, M.D. (Doc. 1 at 3). Following the surgery, Ms. Salzman experienced atypical and continued pain in her left knee. Id. For the next two months, Ms. Salzman returned to the VA several times complaining of left knee pain and underwent a series of medical procedures to address her continued complaints of pain and swelling, including injections, ultrasounds, X-rays, and MRIs. (Doc. 54-2 at 3).

         On October 20, 2016, approximately two months after her initial knee surgery at the VA, Dr. Lesko excised a Baker's cyst from Ms. Salzman's left knee and placed her in a knee immobilizer. (Doc. 54-2 at 3). Eleven days later, on October 31, 2016, Ms. Salzman returned to the VA for a post-operative appointment and was seen by Dr. William J. Skelly, M.D., who ordered a ten-day Keflex prescription. (Doc. 1 at 5). Ms. Salzman again returned to the VA on November 4, 2016, because she “was bleeding through her bandage and steri-strips” and was examined by Dr. Paul Joseph Johnson, M.D. Id. At her November 4, 2016, appointment, Dr. Johnson discovered a large hematoma in Ms. Salzman's knee and removed clotted blood from her incision site. Id. at 5-6.

         On November 7, 2016, Ms. Salzman sought treatment at the VA because she was suffering from immobilizing knee pain, and the swelling in her leg had extended through her thigh. (Doc. 1 at 6). Dr. Skelly again treated Ms. Salzman at the VA orthopedic clinic and aspirated her knee fluid. (Doc. 54-2 at 3). Instead of sending the knee aspirate to the laboratory for culture and sensitivity testing, Dr. Skelly discarded the aspirate and applied a brace to Ms. Salzman's leg. Id.

         Three days later, Ms. Salzman returned to the VA complaining of intolerable pain and swelling. (Doc. 1 at 7). Ms. Salzman underwent an MRI, was prescribed narcotic pain medication, and was discharged that afternoon. Id. The following day, on November 10, 2016, Ms. Salzman was treated at the University of New Mexico Hospital Emergency Room, where her knee was diagnosed as septic. (Doc. 54 at 2). Ms. Salzman alleges the care she received at the VA, and specifically the physicians' failure to test her knee aspirate for infection, was negligent. Id.

         Ms. Salzman filed suit in the United States District Court for the District of New Mexico on August 15, 2018, alleging the VA physicians' failure to properly identify and treat her knee infection amounted to medical malpractice. (Doc. 1 at 9-10). In the parties' Joint Status Report, Ms. Salzman identified orthopedic surgeon Neil C. Small, M.D., and Dustin Richter, M.D., as possible “fact and expert” witnesses. (Doc. 19 at 8-11). The case was set on a 175-day discovery schedule, and Ms. Salzman's expert witness disclosures were due on May 31, 2019. (Doc. 21); (Doc. 54 at 3).

         In her initial expert witness disclosures, Ms. Salzman identified Dr. Small as her retained expert. (Doc. 54 at 3). After receiving Dr. Small's expert report, Defendant contacted Ms. Salzman and expressed concerns over the sufficiency of his report and the bases for his conclusions. Id. As a result, the parties jointly moved to extend the deadline for Ms. Salzman's Rule 26(a)(2) expert disclosures until August 21, 2019. Id. Nearly a month after the extended August 21, 2019, expert disclosure deadline, Ms. Salzman served Defendant with an amended expert report authored by Dr. Small. Id. In addition, Ms. Salzman identified Dr. Richter, her treating physician, for the first time as a non-retained expert. Id. Discovery closed the following month, on October 30, 2019. (Doc. 37 at 1). The case was set for trial in Albuquerque, New Mexico, and is scheduled to begin on April 21, 2020. (Doc. 49).

         II. Analysis

         Defendant now seeks to exclude the expert testimony of Ms. Salzman's retained expert, Dr. Small, and her treating physician, Dr. Richter. (Doc. 54 at 3). Defendant presents two arguments against the admission of both experts: neither Dr. Small nor Dr. Richter was properly disclosed under Federal Rule of Civil Procedure 26(a)(2), and neither expert's opinion satisfies the admissibility standards of Federal Rule of Evidence 702. Id. at 4, 14. In response, Ms. Salzman contends Dr. Small's expert disclosure was “sufficient to advise Defendant not only of the substance of Dr. Small's opinions, but how he arrived at those opinions[.]” (Doc. 59 at 6). In addition, Ms. Salzman contends Dr. Small's report is based on “experience and clinical judgment, ” and thus satisfies the Rule 702 standard. Id. at 2-6. Next, Ms. Salzman admits that she neglected to initially disclose Dr. Richter, but she contends her omission will subject Defendant to neither prejudice nor surprise. Id. at 11. For these reasons, Ms. Salzman requests the Court deny Defendant's Motion.

         A. Disclosure Deficiencies

         Federal Rule of Civil Procedure 26 governs disclosure of expert witnesses and the use of expert testimony at trial. Pursuant to Rule 26, the disclosure requirements vary depending on whether the expert is “retained or specially employed” under 26(a)(2)(B), or “non-retained” under 26(a)(2)(C). A party's classification of an expert as retained or non-retained dictates the scope of testimony and opinions they may proffer. Skarda v. Johnson & Johnson, 2014 WL 12792345, at *3 (D.N.M. 2014) (unpublished). Specifically, a non-retained expert may only provide testimony related to his or her opinions that were formed during their participation in the underlying events in the case. Id. at *3. Conversely, a retained expert may opine on his or her review of records or reports tendered by other experts, including materials prepared in anticipation of trial. Id.

         If a party fails to identify an expert witness under Rule 26(a), they cannot use that witness's testimony during pretrial or trial proceedings unless the failure “was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). In determining whether a party's failure to comply with Rule 26(a) was “justified or harmless, ” the district court is entrusted with “broad discretion.” Jacobsen v. Deseret Book Company, 287 F.3d 936, 953 (10th Cir. 2002). In reaching this decision, “a district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness[]” of the party's non-disclosure. Id. Nonetheless, the court should consider the following pertinent factors: (1) the prejudice to the opposing party; (2) “the ability of the party to cure the prejudice;” (3) the disruption to trial; and (4) the “moving party's bad faith or willfulness.” Id.

         a. Plaintiff's Expert Dr. Neil C. Small

         Defendant first contends Ms. Salzman's retained expert, Dr. Small, was not properly disclosed under Rule 26(a)(2)(B). (Doc. 54 at 6-7). Specifically, Defendant contends Dr. Small did not provide the “basis and reasons” for his opinions, as required by Rule 26(a)(2)(B)(i). Id. In response, Ms. Salzman argues Dr. Small adequately outlines the basis for his opinions, including his “education, training and experience during more than thirty-five years of orthopedic surgery practice and having offered opinions on more than 550 legal cases in his field.” (Doc. 59 at 3).

         Rule 26 does not require a formulaic recitation of how each expert opinion is supported by specific evidence. Rather, the expert's report “is intended to set forth the substance of the direct examination, ” and “should be written in a manner that reflects the testimony to be given by the witness[.]” Fed.R.Civ.P. 26, advisory committee's note to 1993 amendment. This standard comports with the purpose of expert reports as contemplated by Rule 26: “to minimize the expense of ...


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