United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
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
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).
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.
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.
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.
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).
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).
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.
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.
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
Plaintiff's Expert Dr. Neil C. Small
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
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