Ochoa v. United States
| Decision Date | 20 August 2021 |
| Docket Number | Civil Action 3:20-CV-0379-G |
| Parties | ARMIDA OCHOA and SILVIA BARRAZA, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Before the court are cross motions of the defendant United States of America (“United States”) and the plaintiff Armida Ochoa (“Ochoa”) to exclude and strike expert testimony. See Defendant's Motion to Exclude Expert Testimony and to Strike Non-Retained Experts' Disclosures Regarding Causation and Future Medical Expenses (“Motion”) (docket entry 36); Plaintiff's Motion to Exclude “Bony Excrescence” Opinions of Defense Expert James Walter, II and Brief in Support (“Ochoa's Motion”) (docket entry 55). For the reasons set forth herein, the United States' motion is granted in part and denied in part and Ochoa's motion is denied.
This is a Federal Tort Claims Act case stemming from an automobile collision involving the plaintiffs and a United States Postal Service (“USPS”) mail carrier in April of 2018.[1] See Plaintiffs' First Amended Complaint (“Complaint”) (docket entry 8) at 2; Motion at 1. The suit was filed in February of 2020. Since that time, the parties have conducted discovery and now both the discovery cut-off and the deadline to file dispositive motions has passed. On December 28, 2020, the plaintiffs filed their designation of expert witnesses. Plaintiffs' Designation of Expert Witnesses (“Designation”) (docket entry 29). The designation listed a series of medical professionals as “non-retained expert witnesses” who purportedly treated the plaintiffs following the accident. See id. Apparently, the plaintiffs did not provide any expert reports, and all of the designations were accompanied by the following disclosure:
Treated Plaintiff . . . Custodian-Knowledge of Medical Records and Billing . . . Physicians who treated Plaintiff and custodian of records. Expected to testify as to the nature and extent of the injuries suffered by Plaintiff. Further expected to testify as to their skills and qualifications and render expert medical opinions in this case. Further expected to testify that the injuries sustained by Plaintiff are of the type that could be suffered as a result of the type of incident occurring as that made the basis of this lawsuit and that in all medical probability Plaintiff was injured as a result of the incident made the basis of this lawsuit. Further expected to testify as to the reasonableness and necessity of the medical services provided to Plaintiff as well as the charges for such services. Any deposition of these treating physicians taken in this case is hereby incorporated herein for any and all purposes. As these experts are not retained by Plaintiff, pursuant to Rule 194(f)(3), please see the medical records of Plaintiff for further information as to the impressions and opinions of these physicians and the basis for such opinions.
Id. Based on the briefs as well as the appendices attached to them by both the plaintiffs and the United States, medical records from these physicians were provided to the United States. See Plaintiff's Response to Defendant's Motion to Exclude Expert Testimony and to Strike Non-Retained Expert Disclosures Regarding Causation and Future Medical Expenses and Brief in Support (“Response”) (docket entry 45), Exhibit 7 (United States' designated expert, Dr. James C. Walter (“Walter”)'s expert report detailing the medical records he reviewed in preparing the report.).
Meanwhile on January 8, 2021, the United States produced its expert report prepared and authored by Dr. James C. Walter II. See Ochoa's Motion at 1. In this report, Dr. Walter summarized the medical records he reviewed and provided a “statement of opinions, basis, and reasons.” Response, Exhibit 7-6. Dr. Walter concluded, based on his review of the medical records, that Ochoa “has a chronic rotator cuff tear that predated the motor vehicle accident of April 18, 2018.” Id. at Exhibit 7-7. Dr. Walter was deposed on April 29, 2021, after the discovery deadline of April 8, 2021. See Ochoa's Motion at 2.
The plaintiffs filed an amended expert witness designation which was largely unchanged except for details regarding the testimony of Dr. Terry Gemas (“Gemas”).[2] See Plaintiff's First Amended Designation of Expert Witnesses (“Amended Designation”) (docket entry 43-1). Dr. Gemas appears to have been deposed on April 1, 2021. See Response, Exhibit 4.
On April 8, 2021, before the amended designation was filed, the United States filed the instant motion to exclude and strike. The United States argues that plaintiffs's disclosures failed to comply with either Federal Rules of Civil Procedure 26(a)(2)(b) or (c), and thus “moves to exclude expert testimony on the proximate cause of Ochoa's rotator-cuff tear and on Plaintiffs' future medical expenses.” Motion at 6. The United States simultaneously filed a motion for partial summary judgment “limiting damages to past medical expenses, ” arguing in part that the plaintiffs cannot prove anything else without the expert testimony that the United States seeks to exclude. See generally Brief in Support of Defendant's Motion for Partial Summary Judgment Limiting Damages to Past Medical Expenses (“Summary Judgment Motion”) (docket entry 39). The plaintiffs responded to both motions on April 28, 2021. See Response; Plaintiff's Response to Defendant's Motion for Partial Summary Judgment and Brief in Support (docket entry 44). The United States filed replies for both motions on May 12, 2021. See Defendant's Reply to Support Motion to Exclude Expert Testimony and to Strike Non-Retained Experts' Disclosures Regarding Causation and Future Medical Expenses (“Reply”) (docket entry 49); Reply in Support of Defendant's Motion for Partial Summary Judgment Limiting Damages to Past Medical Expenses (docket entry 50).
Subsequently, Ochoa filed a motion to exclude one of the bases of Dr. Walter's expert testimony. See Ochoa's Motion. The United States responded on May 27, 2021. See Defendant's Response to Plaintiff's Motion to Exclude (“U.S. Response”) (docket entry 57). Ochoa did not reply. The cross motions are therefore fully briefed and ripe for decision.
Rule 26(a)(2) of the Federal Rules of Civil Procedure lays out the disclosure obligations of parties seeking to use expert witness testimony. FED. R. CIV. P. 26(a)(2). Rule 26(a)(2)(B) requires a party to supplement its expert witness disclosure with “a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case ....” Id.
This report must include information such as the opinions of the witness, the facts or data considered by the witness, exhibits, and the witness's qualifications. See id. Rule 26(a)(2)(C) states that where an expert is not required to provide a report, the disclosure must still provide “a summary of the facts and opinions to which the witness is expected to testify.” Id.
A party's failure to comply with these obligations is governed by Rule 37(c), which authorizes the court to impose “sanctions on a disobedient party by refusing to allow that party to introduce designated matters into evidence.” Barrett v. Atlantic Richfield Company, 95 F.3d 375, 380 (5th Cir.1996). 8B WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2289.1 (3rd ed.); see also Texas A&M Research Foundation v. Magna Transportation, Inc., 338 F.3d 394, 402 (5th Cir. 2003). A district court's discretion in these matters is “broad” and “considerable, ” and will only be reversed in “unusual and exceptional cases.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Company Inc., 73 F.3d 546, 569 (5th Cir.) (citations omitted), cert. denied, 519 U.S. 811 (1996). The court must consider the following four factors in deciding whether to impose sanctions and what sanctions to impose: (1) the explanation for the failure to disclose; (2) the importance of the evidence; (3) potential prejudice to the opposing party; and (4) the availability of a continuance to cure such prejudice. See Betzel v. State Farm Lloyds, 480 F.3d 704, 707-09 (5th Cir. 2007) ().
The plaintiffs appear to concede that they have not provided any expert reports. See generally Response. Ochoa does argue that Gemas qualifies for the “treating physician” exception to the report requirement. See id. at 3-5. Neither plaintiff makes any argument regarding the rest of the designated experts. The United States argues that Gemas does not qualify for the “treating physician” exception, and that, even if he did, Ochoa did not comply with the Rule 26(a)(2)(C) requirement that the disclosure provide a “meaningful summary of the facts and opinions to which the witness is expected to testify.” Motion at 6 (citing Retractable Technologies, Inc. v. Becton, Dickinson and Company, No. 2:08-CV-16-LED-RSP, 2013 WL 4776189, at *2 (E.D. Tex. Sept. 6, 2013)) (internal quotations omitted). Thus, the court must decide the following questions: (1) Does Gemas qualify as a treating physician, and if so, did Ochoa adequately comply with Rule 26 (a)(2)(C); (2) If not, should the testimony be allowed pursuant to the four-factor test from Betzel; and (3) should the rest of the designated experts be...
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