Opinion
Case No. 03 C 50250.
February 9, 2006
MEMORANDUM OPINION AND ORDER
This matter is before the court on numerous discovery motions regarding Plaintiffs' Rule 26(a)(2) expert disclosures. For the reasons stated below, the court grants in part and denies in part Defendants' Motion to Strike Affidavit, Motion to Strike Previously Undisclosed Opinions of Plaintiffs' 26(a)(2)(B) Experts, and Motion to Reset Deadlines. All remaining Motions are denied.
I. History
Plaintiffs and Defendants disagree about the sufficiency of Plaintiffs' Rule 26(a)(2) expert reports. Defendants believe "new" opinions, i.e., those opinions not disclosed by an expert under Rule 26(a)(2), surfaced at the Plaintiffs' experts' depositions. Since then, the court has been inundated with Defendants' Motions attacking Plaintiffs' expert disclosures and Plaintiffs' Motion in defense of the same, including the following motions that are before the court in this Opinion:
(1) 1/20/06 Motion by Defendants Northwest Suburban Community Hospital, Forest Health Services Corp., and Bariatric Treatment Centers to Strike Affidavit of Dr. Taylor;
(2) 2/2/2006 Motion by Defendant Kent Hess to Strike Previously Undisclosed Opinions of Plaintiffs' 26(a)(2)(B) Experts;
(3) 2/2/2006 Motion by Defendant Kent Hess to Reset Deadlines for Dispositive Motion and Defendants' 26(a)(2) Disclosure;
(4) 2/3/2006 Motion by Defendants Northwest Suburban Community Hospital, Forest Health Services Corp., and Bariatric Treatment Centers to Join Dr. Kent Hess' Motion to Strike Previously Undisclosed Opinions of Plaintiffs' Rule 26(A)(2)(B) Experts;
(5) 2/3/2006 Motion by Defendants Northwest Suburban Community Hospital, Forest Health Services Corp., and Bariatric Treatment Centers to Join Dr. Kent Hess' Motion to Reset Deadlines for Dispositive Motions and Defendants' Rule 26(A)(2) Disclosures;
(6) 2/3/2006 Motion by Defendants Bariatric Specialists of Illinois and Brian Boe to Join Dr. Kent Hess' Motion to Strike Previously Undisclosed Opinions of Plaintiffs' Rule 26(A)(2)(B) Experts;
(7) 2/3/2006 Motion by Defendants Bariatric Specialists of Illinois and Brian Boe to Join Dr. Kent Hess' Motion to Reset Deadlines for Dispositive Motions and Defendants' Rule 26(A)(2) Disclosures;
(8) 2/3/2006 Motion by Defendants Bariatric Specialists of Illinois and Brian Boe to Join Motion by Defendants Forest Health Services Corp. and Bariatric Treatment Centers to Strike Affidavit of Dr. Taylor;
(9) 2/6/2006 Motion by Defendants Bariatric Specialists of Illinois and Brian Boe for leave to Supplement Previously Filed Motions for Leave to Join;
(10) 2/7/2006 Motion by Defendants Northwest Suburban Community Hospital, Forest Health Services Corp, and Bariatric Treatment Centers to Supplement their Previously Filed Motion to Join and to Strike Previously Undisclosed Opinions of Plaintiffs' Expert Pursuant to Rule 26(1)(2);
(11) 2/7/2006 Motion by Plaintiffs to Strike Motion to Strike or in Alternative for a Short Interval of Time to Respond; and
(12) 2/7/2006 Motion by Plaintiffs to Strike Motion to Strike or in Alternative for a Short Interval of Time to Respond to Bariatric Specialists, Dr. Brian Boe.
The court has read and considered each of Plaintiffs' and Defendants' Motions and has listened to oral arguments from all parties. After reviewing all of this information, the court finds that the parties' discovery dispute can be resolved by specifically addressing concerns raised in the following motions:
(1) 1/20/06 Motion by Defendants Northwest Suburban Community Hospital, Forest Health Services Corp., and Bariatric Treatment Centers to Strike Affidavit of Dr. Taylor;
(2) 2/2/2006 Motion by Defendant Kent Hess to Strike Previously Undisclosed Opinions of Plaintiffs' 26(a)(2)(B) Experts; and
(3) 2/2/2006 Motion by Defendant Kent Hess to reset Deadlines for Dispositive Motion and Defendants' 26(a)(2) Disclosure.
Accordingly, all of the remaining Motions to Join, Motions to Supplement, and Motions to Strike (Motions 4-12 above) are denied.
II. Analysis
The court turns to the sufficiency of Plaintiff's expert disclosures. Under Federal Rule of Civil Procedure 26(a)(2), such disclosures:
shall be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Fed.R.Civ.P. 26(a)(2)(B). It is well known that expert disclosures must be sufficiently detailed and complete so as to avoid unfair surprise and thereby limit transactional costs. Salgado v. General Motors Corp., 150 F.3d 735, 741 n. 6 (7th Cir. 1998). Subsections (a)(2)(C) and (e)(1) of Rule 26 explicitly require that an expert's disclosure be supplemented if there are any modifications or additions to the information previously disclosed. Walsh v. McCain Foods Ltd., 81 F.3d 722 (7th Cir. 1996). If a party fails to comply with Rule 26 disclosure requirements, the court has authority to strike the party's expert as a sanction. Fed.R.Civ.P. 37; Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d 1290, 1292 (7th Cir. 1988).
Facially, Plaintiffs' reports appear to meet the requirements set forth in Rule 26(a)(2). They are written reports, prepared and signed by the witnesses. They contain statements of the experts' opinions to be expressed and the basis and reasons therefor. They list information considered in forming the opinions and reference treatment records in support of the opinions. Though each of the reports indicates that the experts' willingness to further explore their opinions by deposition, the reports appear to be detailed and thorough.
Nonetheless, the court must consider the sufficiency of Plaintiff's Rule 26(a)(2) expert reports in light of: (1) Plaintiffs' supplemental affidavit of expert, Dr. Taylor, included in their Response to Defendants' Motion for Partial Summary Judgment; (2) Dr. Taylor's deposition testimony from January 13, 2006, and (3) Dr. Jacob's October 6, 2005 deposition testimony. The Defendants contend that all three contain opinions not offered in the Rule 26(a)(2) reports.
A. Plaintiffs' Supplemental Affidavit
This court takes very seriously the requirements under Rule 26(a)(2) that reports contain a "complete statement of all opinions to be expressed." Plaintiffs' failure to supplement their Rule 26(a)(2) disclosures because "it was evident that Defendants intended to proceed with the deposition" of Plaintiffs' experts, (Pl.s' Resp., at 7), is not a valid excuse. Rule 26(a)(2) disclosures must be complete. If not complete, this court will strike all opinions not sufficiently referred to in the 26(a)(2) report.
Here, Plaintiffs filed a supplemental affidavit of Dr. Taylor in their Response to Defendants' Motion for Partial Summary Judgment. Defendants allege that the affidavit is the first time Dr. Taylor referenced a Dr. Simkus, a surgical assistant, by name. Defendants also allege that the affidavit contains the first statement of opinion that Dr. Simkus violated the standard of care. In defense, Plaintiffs state that Dr. Taylor's disclosure clearly references actions of a surgical assistant, but Plaintiffs admit that the report does not reference Dr. Simkus by name. To justify this omission, Plaintiffs state that only one individual acted as an assistant surgeon, such that the identity of Dr. Simkus can be reasonably inferred from Dr. Taylor's report. Plaintiffs further note that Dr. Simkus was deposed by the parties.
This court declines to strike the affidavit of Dr. Taylor. Though Plaintiffs' expert should have referenced Dr. Simkus by name in his Rule 26(a)(2) report, or at least supplemented under 26(e), it does not appear that Defendants are unfairly surprised by the omission of Dr. Simkus' name. The report of Dr. Taylor does state: "An experienced surgeon and surgical assistant should have prevented capsular injury; if such injury did occur, care should have been provided without necessity for splenectomy." (Taylor's Report, at 2) (emphasis added). The report also states: "Attending physicians and hospital staff should have recognized the severity of her condition and undertaken measures to address her care and arrange consults and transfer." (Taylor's Report, at 3) (emphasis added).
Accordingly, Defendants' Motion to Strike the Affidavit of Dr. Taylor, Section I, is denied. Section II of the Motion, however, is transferred to the District Court to be considered in conjunction with Defendants' Motion for Partial Summary Judgment.
B. Dr. Taylor's January 13, 2006 Deposition Testimony
Dr. Taylor's second deposition yielded opinions not explicitly stated in his expert report. Defendants cite several specific opinions offered in the deposition and move to strike them. Plaintiffs argue that Dr. Taylor's opinions brought out in his second deposition are each reasonable inferences allowable under Rule 26. While none of Dr. Taylor's deposition statements appear to come from far left field, some are more logically related or inferred from the expert report than others.
Both parties are correct. Rather than working through the lengthy deposition of Dr. Taylor one statement at a time to determine which, if any, opinions should be stricken, this court finds that another remedy is appropriate. Given the fact that this case has not been set for trial and Defendants' expert disclosures are not yet due, this court finds that the continued deposition of Dr. Taylor should be allowed. As suggested by the Defendants, Defendants are allowed three hours to depose Dr. Taylor on new issues raised at the January 13, 2006 deposition. Time is to be split equally amongst the three separate defense counsels. Depositions are to occur at reasonable times and reasonable places, no later than March 6, 2006. Under the circumstances, the court finds that it is reasonable for Plaintiffs to pay the costs of reasonable expert fees in connection with the reconvening of the deposition. Fed.R.Civ.P. 26(b)(4)(c).
C. Dr. Jacob's October 6, 2005 Deposition Testimony
Defendants argue that one opinion missing from Dr. Jacob's expert report surfaced at his October 6, 2005 deposition. At the deposition, Dr. Jacob testified that:
Ordering Vitamin K for this patient to be given by intravenous push suggests a lack of experience and ignorance. Vitamin K given by intravenous push has a significant propensity to cause anaphylactic shock.
(Dep. of Dr. Jacob, p. 208). In his report, Dr. Jacob indicated that:
Physician staff failed to meet the standard of care with regards to the management of Ms. Hunt's coagulation status and ongoing blood loss postoperatively. Dr. Boe ordered Vitamin K ten units intravenous push on July 3, 2001. This action met the standard of care, but was excessive in dosage, making subsequent coumadinization difficult.
(Report of Dr. Jacob, at 3).
This court is unable to find that Dr. Jacob's report contradicts or substantially varies from his deposition testimony. It seems that Dr. Jacob consistently opined that while administering Vitamin K met the standard of care, administering Vitamin K as Dr. Boe did by ten units intravenous push did not meet the standard of care. Unfair surprise to Defendants appears microscopic. The four month delay between Dr. Jacob's deposition and Defendants Motion to Strike Dr. Jacob's statement, and defense counsels' indication they would decline to depose Dr. Jacob again, lends credence to this finding. Defendants' Motion to Strike Opinion of Dr. Jacob is denied.
III. Extension of Time Lines
Because Defendants are entitled to "a complete statement of all opinions to be expressed" from Plaintiffs' Rule 26 disclosures, and Defendants have recently learned some new information not contained in Plaintiffs' expert reports, this court extends the deadlines for Defendants' expert disclosures and the final date for dispositive motions. Time to make 26(a)(2) disclosures and file dispositive motions is extended to April 17, 2006. The court will set an expert deposition schedule at the previously scheduled April 21, 2006 discovery conference.
IV. Conclusion
For the foregoing reasons, Defendants' 1/20/05 Motion to Strike the Affidavit of Dr. Taylor, Section I, is denied. Section II of the Motion, however, is transferred to the District Court to be considered in conjunction with Defendants' Motion for Partial Summary Judgment. The 2/2/2006 Motion by Defendant Kent Hess to Strike Previously Undisclosed Opinions of Plaintiffs' 26(a)(2)(B) Experts, and the 2/2/2006 Motion by Defendant Kent Hess to Reset Deadlines for Dispositive Motion and Defendants' 26(a)(2) Disclosure is granted in part and denied in part. Defendants' Motion to Strike Opinions of Dr. Jacob and Dr. Taylor are denied. Defendants are allowed three hours to depose Dr. Taylor on new issues raised at the January 13, 2006 deposition. Time is to be split equally amongst the three separate defense counsels. Depositions are to occur at reasonable times and reasonable places, no later than March 6, 2006. Plaintiffs to pay the costs of reasonable expert fees in connection with the reconvening of the deposition. Time to make 26(a)(2) disclosures and file dispositive motions is extended to April 17, 2006. The court will set an expert deposition schedule at the previously scheduled April 21, 2006 discovery conference. The 2/3/2006 Motion by Defendants Northwest Suburban Community Hospital, Forest Health Services Corp., and Bariatric Treatment Centers to Join Dr. Kent Hess' Motion to Strike Previously Undisclosed Opinions of Plaintiffs' Rule 26(A)(2)(B) Experts; the 2/3/2006 Motion by Defendants Northwest Suburban Community Hospital, Forest Health Services Corp., and Bariatric Treatment Centers to Join Dr. Kent Hess' Motion to Reset Deadlines for Dispositive Motions and Defendants' Rule 26(A)(2) Disclosures; the 2/3/2006 Motion by Defendants Bariatric Specialists of Illinois and Brian Boe to Join Dr. Kent Hess' Motion to Strike Previously Undisclosed Opinions of Plaintiffs' Rule 26(A)(2)(B) Experts; the 2/3/2006 Motion by Defendants Bariatric Specialists of Illinois and Brian Boe to Join Dr. Kent Hess' Motion to Reset Deadlines for Dispositive Motions and Defendants' Rule 26(A)(2) Disclosures; the 2/3/2006 Motion by Defendants Bariatric Specialists of Illinois and Brian Boe to Join Motion by Defendants Forest Health Services Corp. and Bariatric Treatment Centers to Strike Affidavit of Dr. Taylor; the 2/6/2006 Motion by Defendants Bariatric Specialists of Illinois and Brian Boe for leave to Supplement Previously Filed Motions for Leave to Join; the 2/7/2006 Motion by Defendants Northwest Suburban Community Hospital, Forest Health Services Corp, and Bariatric Treatment Centers to Supplement their Previously Filed Motion to Join and to Strike Previously Undisclosed Opinions of Plaintiffs' Expert Pursuant to Rule 26(1)(2); the 2/7/2006 Motion by Plaintiffs to Strike Motion to Strike or in Alternative for a Short Interval of Time to Respond; and the 2/7/2006 Motion by Plaintiffs to Strike Motion to Strike or in Alternative for a Short Interval of Time to Respond to Bariatric Specialists, Dr. Brian Boe are denied.