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Goode v. City of Southaven

United States District Court, N.D. Mississippi, Oxford Division

July 5, 2018

KELLI DENISE GOODE, Individually, and also as the Personal Representative of Troy Charlton Goode, Deceased, and as Mother, Natural Guardian, and Next Friend of R.G., a Minor, and also on behalf of all similarly situated persons PLAINTIFFS
v.
THE CITY OF SOUTHAVEN, DEFENDANTS

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO EXCLUDE EXPERT OPINIONS

          ROY PERCY UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on Plaintiff's Motion to Exclude Delinquently Disclosed Expert Opinions. Docket 403. The plaintiff contends the opinions of Dr. Rick Carlton, Dr. Michael Stodard, and Dr. Gerald Gowitt set forth in their supplement reports should be excluded because they were not timely disclosed by Baptist Memorial Hospital-Desoto (“BMH-D”). As discussed below, the court finds the plaintiff's motion should be granted in part and denied in part.

         Expert witness disclosures are governed by Federal Rule of Civil Procedure 26. “The purpose of Rule 26(a) is to provide opposing parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses." Guthrie v. Quitman County Hosp., LLC, 2014 U.S. Dist. LEXIS 183160, *6 (N.D. Miss. Oct. 27, 2014). Rule 26(a)(2) requires a party to disclose very particular information including, among other things, the identity of any retained expert witness it may use at trial and a written, signed report from the expert containing a complete statement of the expert's opinions and the basis and reasons for them, and the facts or data considered by the witness in forming those opinions. In addition, Local Uniform Civil Rule 26(a)(2) requires that:

[a] party must make full and complete [expert] disclosure as required by Fed.R.Civ.P. 26(a)(2) and L.U.Civ.R. 26(a)(2)(D) no later than the time specified in the case management order . . . . Absent a finding of just cause, failure to make full expert disclosures by the expert designation deadline is grounds for prohibiting introduction of that evidence at trial. . . .
(B) An attempt to designate an expert without providing full disclosure information as required by this rule will not be considered a timely expert designation and may be stricken upon proper motion or sua sponte by the court.

         Pursuant to the case management order in this case, the plaintiff was required to make its expert disclosures by August 4, 2017, and the defendants (including BMH-D) were required to make theirs by September 8, 2017. Docket 283. A party who learns that his expert disclosure is in some material respect incomplete or incorrect must supplement or correct the disclosure in a timely manner and in no event later than the discovery deadline. Fed.R.Civ.P. 26(e) and L.U.Civ.R. 26(a)(5). This duty to supplement extends both to information included in an expert's written report and to information given during the expert's deposition. Fed.R.Civ.P. 26(e). If the evidence is intended solely to rebut evidence on the same subject matter identified in another party's expert disclosure, the disclosure must be made within 30 days after the other party's disclosure. Fed.R.Civ.P. 26(a)(2)(D)(ii).

         In the instant case, the plaintiff served her expert disclosures on August 4, 2017. Included in these disclosures was a supplemental report of previously-designated expert Dr. Mark Fowler, as well as a report by newly designated expert Dr. Michael Arnall. On September 8, 2017 BMH-D served its expert disclosures, adopting and incorporating by reference its previous expert disclosures, which included written reports by Dr. Rick Carlton, Jr., Dr. Michael Stodard, and Dr. Gerald Gowitt. The defendants deposed Dr. Arnall on October 19, 2017, and they deposed Dr. Fowler on October 20, 2017. BMH-D received a copy of Dr. Fowler's deposition transcript on November 2, 2017 but did not receive Dr. Fowler's deposition errata sheet until December 18, 2017. BMH-D received Dr. Arnall's deposition transcript on December 5, 2017.[1] On the January 2, 2018, the last day of the discovery period, BMH-D served supplemental reports of its experts Dr. Carlton, Dr. Stodard, and Dr. Gowitt.

         The plaintiff contends the opinions contained in these supplemental reports are new opinions, are not responsive to any newly-discovered facts or previously undisclosed theories, and therefore should be excluded as untimely. BMH-D disagrees, arguing the subject reports contain opinions either that are not new and that mirror or track previously disclosed opinions, or that address or rebut statements made for the first time by the plaintiff's experts during their depositions. The plaintiff filed no reply to BMH-D's response and supporting memorandum, leaving it to the court alone to test the merit of BMH-D's arguments. The court concludes there is some merit to the positions of both parties, and the court will grant the plaintiff's motion in part and deny it in part accordingly. The specific opinions contained in the subject supplemental reports are discussed in turn below.

         A. Supplemental Report of Dr. Rick Carlton[2]

         The numbered paragraphs of Dr. Carlton's supplemental report are discussed in turn below.

1. Mr. Goode had a physiologic sinus tachycardia during his admission to the BMH-D emergency department, not AV nodal reentrant tachycardia. Sinus tachycardia is confirmed by the presence of P-waves on the EMS rhythm strip. It is commonly encountered in emergency departments, and is addressed by treating the underlying cause, which in this case was Mr. Goode's psychosis caused by his LSD use. Dr. Fowler was critical of the emergency department nurses for not "confirming" or "verifying" Mr. Goode's rhythm. Mr. Goode's sinus tachycardia could not be confirmed or verified by ECG until adequate chemical control could be achieved. Supraventricular tachycardia is not a lethal rhythm as Dr. Fowler suggests.

         The court agrees with BMH-D that these statements are consistent with Dr. Carlton's opinions offered in his initial report (Docket 444-4) and are not new opinions, with the exception of additional statements offered to rebut opinions offered by the plaintiff's expert Dr. Mark Fowler for the first time during his deposition - Dr. Fowler's opinions that the type of supraventricular tachycardia (SVT) experienced by Troy Goode was an AV nodal reentrant tachycardia and that a sinus rhythm was not indicated because the EMS rhythm strip contained no P-waves, the definitive criteria for a sinus rhythm (Docket 444-10). The court finds Dr. Carlton's rebuttal disclosure was timely, and nothing will be stricken from this paragraph.

2. The standard of care did not require emergency department nurses to administer supplemental oxygen to Mr. Goode in the presence of an O2 sat of 90%, particularly given the fact that Mr. Goode showed no signs of respiratory distress or compromise. Even if accurate, an O2 of 90% would not cause the degree of psychosis or delirium exhibited by Mr. Goode.

         The court agrees with BMH-D that these statements were offered to rebut the opinion, offered by Dr. Fowler for the first time during his deposition, that the nursing personnel should have administered oxygen to Troy Goode. The court finds this rebuttal disclosure was timely, and nothing will be stricken from this paragraph.

3. BMH-DeSoto nursing personnel rendered proper and appropriate nursing care to Mr. Goode in the emergency department. The standard of care did not require nursing personnel to maintain continuous ECG and pulse oximetry monitoring of Mr. Goode from the time of his admission. Reliable cardiac and pulse oximetry monitoring could not be accomplished for Mr. Goode until adequate chemical control could be achieved by the Ativan and Haldol ordered by Dr. Oliver. Nor did the standard of care require nursing personnel to provide "one-on-one continuous observation (of Mr. Goode) by a trained medical person” from the time of admission.

         The court agrees with BMH-D that the first and last sentences of this paragraph are consistent with previously-disclosed opinions of Dr. Carlton and are not new opinions. However, the second and third sentences go beyond Dr. Carlton's previously-disclosed opinions and rebut an opinion - that Troy Goode should have been continuously monitored with EKG and pulse oximetry from the time of his admission - that was disclosed in Dr. Fowler's supplemental written report provided well in advance of BMH-D's expert designation deadline (Docket 444-11). The court finds this portion of Dr. Carlton's supplemental report is untimely, and these two sentences will be stricken.

4. The standard of care did not require nursing personnel to request removal of Mr. Goode's forensic restraints and to reposition him at any time prior to achieving adequate chemical control. It is folly to suggest that a floridly psychotic patient such as Mr. Goode did not present a danger to himself or others.

         The court agrees with BMH-D that these statements are consistent with Dr. Carlton's previously-disclosed opinions and are not new opinions. Nothing will be stricken from this paragraph.

5. It is incorrect to state that a patient is "chemically restrained" at the time one initiates the administration of a sedating medication. A patient is chemically restrained when the selected medication or medications have achieved the desired clinical effect of adequately controlling the patient's behavior. The standard of care did not require BMH-DeSoto "to post a trained medical staff member in the room" to provide direct, one on one observation of Mr. Goode upon the administration of Haldol and Ativan, or to place Mr. Goode in an area where he could be directly observed. It was appropriate and standard of care for Nurse Floch to administer the Ativan and Haldol with the plan to return to Mr. Goode's room to evaluate what effect, if any, the medications had on Mr. Goode's behavior.

         The court agrees with BMH-D that these statements - with one exception -- either are consistent with with Dr. Carlton's previously disclosed opinions or are offered in rebuttal to an opinion - that a patient is chemically restrained at the time sedating medication is administered - that was offered by Dr. Fowler for the first time during his deposition. However, the court disagrees with BMH-D that Dr. Fowler opined for the first time during his deposition that the standard of care required nursing personnel to place Troy Goode in an area where he could be directly observed, as Dr. Fowler stated in his previously-disclosed supplemental report, “It is not appropriate to have the patient monitored by non-medical personnel or have the patient in ...


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