United States District Court, W.D. Virginia, Roanoke Division
ELIZABETH K. DILLON, District Judge.
In this medical malpractice case, defendants Wythe County Community Hospital, LLC, Radiology Consultants of Wytheville, P.L.L.C., and Dayne K. Roberts, M.D. (collectively, Virginia defendants), move to strike defendant United States of America's expert disclosure of Lauren Parks Golding, M.D., and to exclude her as an expert on timeliness and relevancy grounds. The court heard oral argument on the motions on May 11, 2015, and it is now prepared to rule. For the reasons stated below, it will deny the motions. As set forth in its May 13, 2015 order, however, the court will allow the Virginia defendants to renew their relevancy arguments with a more complete record through motions in limine .
In September 2010, plaintiff Melissa Thompson went to the VA medical center in Beckley, West Virginia, complaining of abdominal pain. (Dkt. No. 34, First Am. Compl. ¶¶ 19, 24.) Two days later, she underwent a CT scan on her abdomen. (Id. ¶ 28.) Upon reading the scan, one of the medical center's doctors noticed (as relevant here) a 1.2 cm soft-tissue density in Thompson's right breast. (Id. ¶ 29.) In light of this finding, the doctor suggested that Thompson have a "mammographic evaluation." (Id. )
Later that month, Thompson returned to the VA medical center for a follow-up appointment with her primary health-care provider, Ann Lilly, a family nurse practitioner. (Id. ¶¶ 20, 30-31.) Lilly reviewed the results of the CT scan with Thompson and ordered a screening mammogram for her at Wythe County Community Hospital. (Id. ¶ 33.) Thompson had the mammogram in October 2010. (Id. ¶¶ 8, 40, 43.) Upon interpreting the mammogram, Dr. Roberts, a radiologist with Radiology Consultants of Wytheville, found a moderately dense "parenchyma" in Thompson's right breast. (Id. ¶ 45.) He dictated a report with this finding and sent it to Lilly. (Id. ¶ 46.) No additional tests were ordered. (Id. ¶¶ 50.)
In January 2012, Thompson returned to Wythe County Community Hospital for another screening mammogram. (Id. ¶ 54.) Dr. Roberts again interpreted it. (Id. ¶ 55.) And again no additional tests were ordered. ( See id. ¶¶ 69(f).)
Roughly five months later, Thompson went to the VA medical center, complaining of "excruciating pain." (Id. ¶ 56.) Upon examining Thompson, Lilly found a mass in Thompson's right breast that was "inflammatory in nature." (Id. ¶ 58.) Later that day, Thompson had a limited ultrasound on the breast. (Id. ¶ 59.) It showed a mass. (Id. ¶ 60.) Almost two weeks later, Thompson underwent a diagnostic mammogram and another ultrasound. (Id. ¶¶ 61-63.) Both tests revealed a mass that was greater than 6 cm. (Id. ¶¶ 62-63.) About a week later, Thompson had a follow-up visit with Lilly. (Id. ¶ 65.) Lilly thought that the mass was breast cancer. (Id. )
After being diagnosed with breast cancer, Thompson underwent chemotherapy and radiation. (Id. ¶ 66.) She also had a bilateral mastectomy. (Id. )
In March 2014, Thompson filed this case against the defendants, asserting claims for medical malpractice. She alleges that the defendants or their employees breached the standard of care by (among other things) failing to order a diagnostic mammogram or ultrasound after her CT scan in October 2010 and her screening mammogram in January 2012. (Id. ¶¶ 68-69.) She claims that, if the defendants or their employees had ordered a diagnostic mammogram or ultrasound at these times, then her breast cancer "would have been timely and appropriately treated and she would not have a dismal diagnosis." (Id. ¶¶ 71, 73.)
The defendants answered denying these claims and discovery ensued. Under the court-approved discovery plan, the defendants were required to disclose their experts on or before March 2, 2015. (Dkt. No. 52, Agreed Order ¶ 4.) On February 27, the United States' counsel sent an e-mail to the other parties' counsel, asking for a two-week extension until March 16 to disclose its experts. (Dkt. No. 65-1, Feb. 27, 2015 e-mail from United States' counsel.) The parties consented.
The United States disclosed one of its two retained experts on March 16. (Dkt. No. 60-2, Expert Disclosure of Melissa R. Baker, FNP 1, 6.) But it did not disclose the other, Dr. Golding, until March 17-a day after its two-week extension had expired. (Dkt. No. 60-3, Expert disclosure of Lauren Parks Golding, M.D. 1, 7; Dkt No. 65-3, Mar. 17, 2015 e-mail from United States' counsel.)
Dr. Golding is a radiologist who specializes in breast imaging. (Dkt. No. 60-3 at 13.) In her report, she says that Lilly, a United States employee, did not deviate from the standard of care in her treatment of Thompson but that the Virginia defendants or their employees did. (Id. at 8.) Specifically, Dr. Golding says that the Virginia defendants or their employees breached the standard of care by failing to document properly Thompson's concerns and complaints regarding her right breast. (Id. at 8-9.) Dr. Golding also says that the Virginia defendants or their employees breached the standard of care by failing to order a diagnostic mammogram or ultrasound after Thompson's CT scan in October 2010 and her screening mammogram in January 2012. (Id. at 9-10.) According to Dr. Golding, the January 2012 screening mammogram showed an "increased density" in Thompson's right breast that was not there on her October 2010 screening mammogram, and thus "[t]he standard of care required this finding to be further evaluated in the form of a diagnostic mammogram." (Id. at 9.)
The Virginia defendants objected to the United States' untimely disclosure of Dr. Golding and asked that the United States withdraw it. ( See Dkt. No. 60-4, Mar. 24, 2015 e-mail from United States' counsel.) In an e-mail to the Virginia defendants' counsel, the United States' counsel declined the request, explaining that, "[a]lthough [Dr. Golding's] report was completed by on [sic] March 16, there was a glitch in getting a signature on the report that had to be solved the following day by facsimile machine." (Id. ) Counsel also explained that the United States "did not become aware of the need for a radiologist until we spoke to the VA providers at the depositions, " and that "[t]here were further delays because Lewis Gale radiologists had either moved to the VA or were too busy, and Carilion radiologists treated [Thompson]." (Id. ) Finally, counsel explained that, "[a]s of February 27, [he] had not discussed Dr. Golding's findings with her, nor received a draft report." (Id. )
These motions followed.
The Virginia defendants move to strike Dr. Golding's disclosure and to exclude her as an expert for one or both of the following reasons: (1) the United States failed to disclose her before its extended expert-disclosure deadline passed; and (2) her opinions are irrelevant. (Dkt. No. 60, Radiology Consultants of Wytheville and Dr. Roberts's Br. in Supp. of Mot. to Strike 4-8; Dkt. No. 63, Wythe County Community Hospital's Br. in Supp. of Mot. to Strike 3-6.) The court addresses these grounds in turn.
A. The Propriety of Sanctions for the United States' Untimely Disclosure of Dr. Golding
The Virginia defendants argue that the court should strike Dr. Golding's disclosure and exclude her as an expert under Federal Rules of Civil Procedure 16(f) and 37(c), because the United States failed to disclose her before its extended expert-disclosure deadline expired. (Dkt. No. 60 at 4-7; Dkt. No. 63 at 3-6.) The United States does not dispute that its disclosure of Dr. Golding was untimely. (Dkt. No. 65, United States' Br. in Opp'n to Mots. to Strike 2, 4.) But it contends that its failure to timely disclose her was "substantially justified and harmless" and that therefore the court should not strike her disclosure or exclude her as an expert under either Rule 16(f) or 37(c). (Id. at 4-5.)
Rules 16(f) and 37(c) prescribe sanctions for (among other things) discovery violations. Rule 16(f) states in pertinent part:
(1) In General. On motion or on its own, the court may issue any just orders, including those authorized by [Federal Rule of Civil Procedure] 37(b)(2)(A)(ii)-(vii), if a party or its attorney:
(C) fails to obey a scheduling or other ...