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Kinlaw v. Nwaokocha

United States District Court, E.D. Virginia, Richmond Division

May 29, 2019

JOHN KINLAW, Plaintiff,
DR. CHARLES NWAOKOCHA, et al., Defendants.


          Robert E. Payne, Senior United States District Judge.

         This matter is before the Court on the Defendants' MOTION TO EXCLUDE TESTIMONY CONTAINED IN THE AMENDED EXPERT REPORT OF MICHAEL J. KATZ, MD, OR, IN THE ALTERNATIVE, MOTION TO STRIKE THE AMENDED EXPERT REPORT OF MICHAEL J. KATZ, MD (ECF No. 52) (the "Motion to Exclude"); the DEFENDANTS' RENEWED MOTION TO EXCLUDE TESTIMONY OF PLAINTIFF'S STANDARD OF CARE AND CAUSATION EXPERT, MICHAEL J. KATZ (ECF No. 76) (the "Daubert Motion"); and the DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 73) (collectively, the "Motions"). For the reasons set forth on the record during the hearing on April 23, 2019 and in this MEMORANDUM OPINION, the Court denied these Motions by an ORDER entered on April 23, 2019 (ECF No. 91).


         A. General Factual Background

         In this medical malpractice case, John Kinlaw (``Kinlaw") alleges that Defendants, Dr. Charles Nwaokocha (``Dr. Nwaokocha") and Armor Correctional Health Services, Inc. ("Armor") (collectively, the ``Defendants") failed properly to treat Kinlaw's broken finger, leading to permanent damage to the finger.[1] See Compl. ¶ 1-6 (ECF No. 1). At the time of the alleged malpractice, Kinlaw was incarcerated at Lunenburg Correctional Center (``LCC") . Id. ¶ 1. During the relevant time period, Dr. Nwaokocha was an employee of Armor, which contracted with the Virginia Department of Corrections to provide health care services at LCC. Id. ¶¶ 10, 19.

         Kinlaw alleges that Dr. Nwaokocha committed medical malpractice by, inter alia: (1) delaying the treatment of his finger injury; (2) failing to properly stabilize the injury; and (3) failing to promptly refer him to a specialist. See id. ¶¶ 20-90. Kinlaw seeks compensatory damages (including pain and suffering and lost income); damages for lost earning potential; punitive damages; special damages; and costs and attorney's fees. Id. at 41-42.

         B. Background Relevant To The Motions

         On April 25, 2018, the Court entered a SCHEDULING ORDER (ECF No. 15) establishing the default pretrial schedule for the case, "except to the extent amended or augmented by the terms of the Initial Pretrial Order issued after the pretrial conference or by any other Order." That SCHEDULING ORDER (ECF No. 15) included the Court's standard "Pretrial Schedule A," which, inter alia, provides rules pertaining to expert witnesses. See id. ¶ IV. It requires, inter alia, that "Local Rule 26 shall govern disclosure and discovery of experts and their reports" and that

[u]nless the Court orders otherwise for good cause shown, expert witnesses and reports not disclosed as required by Fed.R.Civ.P. 26(a) (2) and (3) and the deadlines established herein shall not be allowed to testify or be admitted into evidence, as the case may be.

Id. Neither the SCHEDULING ORDER nor the Pretrial Schedule A were modified by the INITIAL PRETRIAL ORDER (ECF No. 24).

         Thereafter, the Court entered an Order requiring, inter alia, that the ``plaintiff shall serve expert disclosures under Fed.R.Civ.P. 26 on December 3, 2018; defendants shall serve responsive reports on January 4, 2019; the plaintiff shall serve the rebuttal report by January 15, 2019; and all expert depositions shall be concluded by January 30, 2019." ECF No. 26 ¶ 5. Then, by Order entered on December 4, 2018, the discovery schedule was modified to extend the close of discovery (including the deadline for expert depositions) to January 31, 2019. ECF No. 41. The Court then entered an AGREED ORDER (ECF No. 51) establishing various pretrial deadlines. The trial date was continued to June 17-21, 2019.[2] ECF No. 48.

         The basis of the Motions is the expert report and possible trial testimony of Kinlaw's expert witness, Michael J. Katz, M.D. (``Dr. Katz"). See, e.g., ECF No. 53; ECF No. 77. Kinlaw properly designated Dr. Katz as an expert witness and timely disclosed Dr. Katz's expert report (the "first report") to the Defendants on December 4, 2018. See Apr. 23 Hr'g Tr. at 8 (hereinafter, ``Hr'g Tr.") (ECF No. 95). In response, the Defendants submitted their expert designations on January 4, 2019. Id. at 9. Dr. Katz was then deposed on January 25, 2019 (six days before the close of discovery). Id. Following his deposition, on the evening of January 31, 2019 (the last day of discovery), Kinlaw submitted a second expert report by Dr. Katz (the "second report"), which purported to clarify certain issues that arose at Dr. Katz's deposition six days earlier.[3] Id.; id. at 28-31.

         In the Defendants' Motion to Exclude (ECF No. 52), the Defendants move to exclude testimony contained in, or alternatively to strike entirely, the second report. They argue that Dr. Katz's second report was untimely and was an improper supplementation of an expert report. In the Defendants' Daubert Motion (ECF No. 76), the Defendants move to exclude Dr. Katz's standard of care and causation opinions. Finally, largely assuming that the Court would grant the Motion to Exclude and/or the Daubert Motion (i.e. exclude entirely, or curtail significantly, Kinlaw's primary expert witness), the Defendants moved for summary judgment. ECF No. 73.

         The parties fully briefed the Motions and the Court heard oral argument on them on April 23, 2019. For the reasons stated on the record on April 23, 2019, and as set forth below, the Motions were denied. ECF No. 91.


         Although the several Motions present slightly different issues, the nub of the Defendants' argument is that Kinlaw improperly filed the second report of Dr. Katz. The second report, argue the Defendants, was untimely and is an improper supplementation of the initial report. As explained below, the second report was neither untimely nor an improper supplementation that violated Fed.R.Civ.P. 26. However, the fact that it was provided so late in the discovery process made it nearly impossible for the Defendants properly to respond to it. Accordingly, as set forth below, the Court permitted the Defendants to re-depose Dr. Katz ``on all topics raised in the [second] report. Hr'g Tr. at 42. These issues will be addressed in turn.

         A. Legal Framework

         It is first necessary to set forth the legal framework necessary for deciding the Motions.

         a. Fed.R.Civ.P. 26

         Fed. R. Civ. P. 26(a)(2) sets forth the general requirements that parties must disclose the identities of their expert witnesses and provide a written expert report. Fed.R.Civ.P. 26(a)(2)(B) details the requirements of the expert's written report, which includes ``a complete statement of all opinions the witness will express and the basis and reasons for them." Id. (a) (2) (B) (i) . And, Fed.R.Civ.P. 26(a)(2)(E) requires that the parties "supplement these [expert] disclosures when required under Rule 26(e)." See Sharpe v. United States, 230 F.R.D. 452, 456 (E.D. Va. 2005) (describing requirements of Rule 26, including duty to supplement).

         Turning to Rule 26(e), it reads, in full:

         Supplementing Disclosures and Responses.

(1) In General. A party who has made a disclosure under Rule 26(a)-or who has responded to an interrogatory, request for production, or request for admission-must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
(2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time ...

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