Cherry et al v. United States of America et al

MOTION for Summary Judgment Partial

D. Ariz.January 13, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN S. LEONARDO United States Attorney District of Arizona ADAM R. SMART Assistant U.S. Attorney NC Bar No. 31797 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: 602-514-7500 Facsimile: 602-514-7760 Email: Adam.Smart@usdoj.gov Attorneys for the United States of America UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lawrence N. Cherry and Judy G. Cherry, husband and wife, Plaintiffs, v. United States of America, Defendant. CV 15-00236 PHX PGR DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant United States of America submits the following Motion for Partial Summary Judgment pursuant to Fed. R. Civ. P. 56. This is a medical malpractice action brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671 et seq. relating to medical treatment received by Plaintiff, Lawrence Cherry, at the Carl T. Hayden VA Medical Center, Phoenix, Arizona (Phoenix VA). Plaintiffs have the burden of proof on each of their claims for medical malpractice. Plaintiffs initially asserted claims related solely to his dermatology treatment at the Phoenix VA. At the rebuttal expert deadline Plaintiffs disclosed a report by a urologist, Dr. Danoff. As acknowledged by Plaintiffs, the purpose of this new opinion was (1) to discuss what Dr. Danoff believes would have happened had an earlier referral from dermatology to urology occurred – a causation component to their failure to refer theory (see Doc. 95, p. 8); (2) to offer a rebuttal Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 1 of 18 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to Defendant’s causation theory of multifocality –i.e., whether Mr. Cherry had a single, persistent squamous cell carcinoma (SCC) lesion, or rather whether he had multiple instances of the lesions (Doc. 95, p. 6); and (3) to opine that, accepting Defendant’s multifocality theory, Dr. Danoff believed that there was a breach of the standard of care at the April 2012 urology appointment by failing to perform a urethroscopy, and further that not performing a urethroscopy at that time was purportedly the cause of harm to Mr. Cherry (Doc. 95, p. 6-7; Ex. 1, p. 3). However, as set forth herein, Dr. Danoff should be precluded from offering testimony on these matters because his expert disclosure was inadequate. The disclosure failed to properly set forth Dr. Danoff’s substantial prior testimony as is required under Fed. R. Civ. P. 26(a)(2)(B). Defendant requested that Plaintiffs supplement the report to correct this deficiency. However, Plaintiffs did not do so. This inadequate disclosure was not substantially justified as it is based on Dr. Danoff’s admitted failure to maintain the necessary records to have a complete list. Nor is the inadequate disclosure harmless as it precluded Defendant from evaluating Dr. Danoff’s substantial earlier testimony prior to taking his deposition, nor will it be able to do so prior to trial. Because of this violation of Fed. R. Civ. P. 26(a)(2)(B), the Court should impose the automatic sanction under Fed. R. Civ. P. 37(c) to preclude Dr. Danoff from offering testimony, either on motion or at trial. Without this testimony, Plaintiffs cannot meet their burden of proof with respect to any claim that the failure to refer Mr. Cherry to urology on an earlier date caused his injury due to a lack of critical causation evidence. Nor can they do so as to their theory that there was a breach of the urologic standard of care during the April 2012 appointment that purportedly harmed Mr. Cherry.1 Even if his testimony was not precluded, Defendant is still entitled to summary judgment on Plaintiffs’ theory that there should have been a referral to urology earlier than April 2012 because Dr. Danoff did not disclose an opinion 1 With respect to Defendant’s multifocality theory, Dr. Danoff was just one of Plaintiffs’ experts that disputed the applicability of that theory here. Accordingly, Plaintiffs still have testimony to offer concerning that issue, even without Dr. Danoff. Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 2 of 18 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that a failure to refer at the earlier dermatology appointments harmed Mr. Cherry. Dr. Danoff’s exclusion and the partial grant of summary judgment requested in this motion leaves for trial only the claims related to the dermatology care, excluding the claim premised on the purported need for an earlier urology referral. This Motion is supported by the accompanying Memorandum of Points of Authorities, the accompanying Statement of Facts, the Declaration of Adam R. Smart, attached Exhibits, and all matters of record. MEMORANDUM OF POINTS AND AUTHORITIES I. Facts A. Summary of treatment Over the course of January 2010 through January 2013, Mr. Cherry received treatment by both the dermatology and urology staff at the Phoenix VA for SCC in situ of the glans, and ultimately invasive SCC of the penis/urethra. (Separate Statement of Material Facts (SOF) ¶ 1). Ultimately Mr. Cherry was referred to the Mayo Clinic, where in March of 2013 he underwent a partial penectomy to treat invasive SCC of the penis the distal portion of his penis was removed. (SOF ¶ 8). Mr. Cherry continues to be followed at both the Mayo Clinic and the VA Phoenix, and at this point, there is no evidence of a recurrence of the cancer or any metastasis. (Id. at 27; Exs. 20, 21). From January 2010 through April 2012, Mr. Cherry was being treated solely at the dermatology clinic at the Phoenix VA for the SCC in-situ on the glans of his penis. (Exs. 6-11). At these dermatology appointments, Mr. Cherry was examined by a dermatologist or dermatology PA or both, and prescribed Efudex (5-Fluorouracil) cream, a topical chemotherapy treatment.2 (Id.). At the January 15, 2010 appointment Mr. Cherry also 2The parties disagree about some of the exact occurrences and details at the appointments identified herein, and the majority of them are only set forth to provide the Court with background to give context to the issues presented in this motion. The Court need not resolve any factual disputes related to these appointments to decide the two issues before the Court in this motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”); see LRCiv 56.1 (noting all pertinent non-material facts should be included in the memorandum of law, but not the separate statement of facts). Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 3 of 18 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 received a shave biopsy of the lesion present at that time, showing SCC in situ. (FAC ¶ 15; Ex. 7). At his April 30, 2012 dermatology appointment Mr. Cherry was referred to the urology clinic the Phoenix VA for his condition for the first time. (SOF ¶ 2). At the resulting April 30, 2012 urology appointment, Mr. Cherry was examined at the Phoenix VA urology clinic on April 30, 2012 by a physician assistant, Mr. Torigian, and a urologist Dr. Papoff. (SOF ¶ 3). The parties dispute the non-material facts concerning the scope of that examination and the exact location of the lesion; however, the parties agree that no urethroscopy was performed. (Id.). Mr. Cherry returned to the dermatology clinic on June 21, 2012 and also had an appointment with Dr. Papoff that same day. (SOF ¶ 4). Again the parties dispute the non-material facts concerning the scope of the examination that took place at the urology appointment, but agree no urethroscopy was performed. (Id.). Dr. Papoff determined that no further urological management was necessary at that time. (FAC ¶ 20). Due to chest pain and abnormal stress tests, in August 2012 Mr. Cherry had stents placed in two of his coronary arteries that month. (SOF ¶ 7; Ex. 15). As part of those procedures, Mr. Cherry was prescribed Plavix, and was instructed to remain on Plavix for 12 months. (SOF ¶ 7). Several months later after additional treatment at the Phoenix VA dermatology and urology clinics Mr. Cherry was diagnosed with SCC in his urethra. (FAC ¶¶ 24-25). Because of the Plavix, the VA urology clinic and the Mayo Clinic agreed in January 2013 that any surgery would have to wait until six months after the start of Plavix due to the risk of coming off of the medication any sooner. (Ex. 17). In March of 2013, Mr. Cherry underwent a partial penectomy to treat the SCC. (SOF ¶ 8). Since that date Mr. Cherry has been clear of both recurrence or metastasis. (Exs. 20-21). B. Plaintiffs’ disclosure of Dr. Danoff Plaintiffs assert that it was a breach of the dermatology standard of care to not have referred Mr. Cherry to the urology department earlier than the April 2012 referral. However, in order to establish causation for such failure, it is necessary to show that such purported breach was the proximate cause of Mr. Cherry’s harm, i.e., the partial Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 4 of 18 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 penectomy. To do so, it would be necessary to establish what in fact a urologist would have purportedly done had such a referral occurred, and what the potential outcome of such treatment could have been. Hence the need for Dr. Danoff, a urologist, as a dermatologist would not be qualified to opine on such matters. Plaintiffs did not originally disclose a urology expert; however, they were permitted to do so over Defendant’s objection at the rebuttal deadline date. (Doc. 101). In his report, Dr. Danoff discusses the dermatology appointments identified above, and discusses what in his opinion would have been reasonable to conclude would have occurred had a referral been made to urology at each of those appointments, a scope of the urethra. (Ex 1, p. 2, ln. 15-17 and p. 2, ln 25-27). However, Dr. Danoff does not include in his report an opinion a urethroscopy performed on a referral from any of those pre-April 2012 appointments would have revealed anything in the urethra. (See id.). He only asserts that such a procedure would have revealed something at the April 30, 2012 urology appointment, namely Plaintiffs’ challenge to the care provided by Dr. Papoff at that visit. (See id. at p. 3, ln. 8-10). Thus, Dr. Danoff did not include in the report a causation opinion concerning the lack of an earlier referral to urology. The rest of the report mainly centers on attempting to rebut the concept of multifocality discussed in Defendant’s expert reports. (See id. at p. 1-3). As part of his report, Dr. Danoff listed 54 cases in which he has provided testimony over the prior four years. (SOF ¶ 10). That list did not include case names for the majority of the cases, instead providing a single reference name, presumably one of the parties. (SOF ¶ 11). The list did not include a jurisdiction or case number for any of them. (SOF ¶¶ 12-13). Finally, the list did not identify whether the testimony was deposition or trial testimony for any of the listed testimony from 2014 or 2015. (SOF ¶ 14). After the Court ruled that Plaintiffs were permitted to disclose Dr. Danoff at the rebuttal deadline (Doc. 101), Defendant requested that Plaintiffs’ supplement Dr. Danoff’s testimony list to provide more complete information. (SOF ¶ 15). Plaintiffs’ counsel declined to provide the requested information, instead stating that it was Defendant’s burden to track that Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 5 of 18 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 information down or pay Dr. Danoff to do it. (SOF ¶ 16). Defendant attempted to locate complete case information for several of the cases listed using its online search databases that search both federal and state dockets. (SOF ¶ 17). However, doing so proved unfruitful. For example, counsel for Defendant searched for two of the cases where an Arizona address was listed for the attorney on the list; however, counsel received 550 hits for one of the searches, and zero history for the other. (Id.). The only testimony Defendant was able to locate in a reasonable fashion was from Scharf v. Trabucco, No. 314CV8183HRHPRESCOTT (D. Ariz), a case pending in this jurisdiction. (SOF ¶ 18). In that case, Dr. Danoff had not provided a list of any testimony with his report, telling the district court that he did not maintain such a list. 2016 WL 1084748, at *4 (D. Ariz. Mar. 21, 2016). The district court in Scharf ordered Dr. Danoff to provide a list to the defendants that they found acceptable or be stricken. Id. (“Dr. Danoff’s failure to provide a case list also is not harmless because ‘it undermines [defendants’] ability to properly prepare for an effective deposition or cross-examination’ of Dr. Danoff.”). In response, it appears that Dr. Danoff put together the incomplete list through looking at cancelled checks (SOF ¶ 20), and provided that same list to Defendant here. (See Ex. 4, p. 3). The defendant in that case never came back to the court on the issue, thus there is no further ruling by the court on the compliance of the list here with the requirements of Fed. R. Civ. P. 26(a)(2)(B). See generally Docket No. 3:14-CV-8183-HRH (D. Ariz.). However, as explained herein, the list is woefully short of complying with those requirements. Defendant took one more opportunity to try and obtain additional information concerning Dr. Danoff’s prior testimony. At Dr. Danoff’s deposition Defendant asked him for additional information about the case list. However, Dr. Danoff was unable to do so. For example, when asked if he could be certain that the list he provided actually set forth all of the testimony he had given in the last four years Dr. Danoff testified that there was no way for him to tell Defendant one way or another. (SOF ¶ 21). In fact, despite the Court’s order in the Scharf case, Dr. Danoff defiantly stated that he still does not keep a list of the cases in which he testifies. (SOF ¶ 22). Faced with this roadblock, Defendant Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 6 of 18 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 tried to simplify the search by asking Dr. Danoff which, if any of the prior testimony concerned penile cancer. (SOF ¶ 23). However, Dr. Danoff said he had no way of telling Defendant that. (Id.). II. Summary judgment in a medical malpractice action Under the FTCA, the United States may be held liable for injury caused by the negligent act of an employee under circumstances where a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). Thus, the liability of the United States in this action is to be determined in accordance with the substantive law of Arizona. Richards v. United States, 369 U.S. 1, 8-10 (1962); Louie v. United States, 776 F.2d 819, 824 (9th Cir. 1985). Medical malpractice claims in Arizona are governed by statute. See A.R.S. § 12- 562 et. seq. In Arizona, the elements of proof which a plaintiff must establish in order to prevail in a medical malpractice action are set forth in A.R.S. § 12-563: Both of the following shall be necessary elements of proof that injury resulted from the failure of a health care provider to follow the accepted standard of care: 1. The health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances. 2. Such failure was a proximate cause of the injury. A party is entitled to summary judgment as a matter of law when the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file demonstrate that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c). When a plaintiff presents no evidence to support an essential element of his or her case, there is no genuine issue as to any material fact and summary judgment is appropriate. Celotex Corporation v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party need not disprove matters on which the opponent has the burden of proof at trial. Id. at 323. “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party’s case.” In re Oracle Corp. Secs. Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 7 of 18 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Litig., 627 F.3d 376, 387 (9th Cir. 2010); Groth v. Owners Ins. Co., No. CV-12-1846-PHX- SMM, 2014 WL 2194801, at *2 (D. Ariz. May 27, 2014); see also Celotex, 477 U.S. at 323 (Rule 56 does not require “that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.”). Accordingly, if a plaintiff does not have expert testimony on a matter which it is required, and which the plaintiff has the burden of proof, a defendant is entitled to summary judgment on that issue. Jobe v. Sofamor, S.N.C., No. CIV 96-2628-PHX-SMM, 1998 WL 1048208, at *2 (D. Ariz. Sept. 4, 1998). In a medical malpractice case, a plaintiff opposing a motion for summary judgment must show that expert testimony is available to meet its burden on essential issues such whether a provider’s treatment fell below the applicable standard of care, causation, and damages, depending on the scope of the motion for summary judgment. McGuire v. DeFrancesco, 168 Ariz. 88, 90, 811 P.2d 340, 342 (Ariz. App. 1990); Bell v. Maricopa Medical Center, 157 Ariz. 192, 194-95, 755 P.2d 1180, 1182- 83 (Ariz. App. 1988); Jobe, 1998 WL 1048208, at *2. As explained below, in section III., because Dr. Danoff’s testimony should be stricken for failure to comply with the requirements of Fed. R. Civ. P. 26(a)(2)(b), Plaintiffs lack expert testimony on the causation aspect of their malpractice claim premised on an alleged failure to timely refer Mr. Cherry to urology, as well as both the standard of care and causation aspects of the urologic care Mr. Cherry received in April 2012. As explained in section IV., even if Dr. Danoff is not excluded because of his deficient list of prior testimony, he did not offer a causation opinion in his report that the lack of an earlier referral to urology caused any harm to Mr. Cherry. III. The Court should preclude Dr. Danoff from testifying as a result of his deficient expert disclosures A. Required disclosures Federal Rule of Civil Procedure 26(a)(2)(B) requires that the disclosure of all retained experts be accompanied by a written report prepared and signed by the witness. For each disclosed expert, Rule 26(a)(2)(B) requires that an expert Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 8 of 18 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 witness disclosure be accompanied by a written report prepared and signed by the witness containing: (1) a complete statement of all opinions and the basis and reasons therefor; (2) the data or other information considered by the witness in forming the opinions; (3) any exhibits to be used as a summary of or support for the opinions; (4) the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; (5) the compensation to be paid for the study and testimony; and (6) 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). An expert’s report must be “detailed and complete.” Elgas, 179 F.R.D. at 300 (quoting Sierra Club v. Cedar Point Oil Co., Inc., 73 F.3d 546, 571 (5th Cir. 1996)). Hicks v. Dairyland Ins. Co., No. 2:08-CV-01687BESPAL, 2009 WL 2243794, at *5 (D. Nev. July 24, 2009). Specifically, at issue in this section is the requirement that Dr. Danoff include a complete list of any other cases in which he has testified as an expert at trial or by deposition within the preceding four years. B. Plaintiffs failed to disclose a proper case list “The obvious purpose of providing lists of prior cases is to enable opposing counsel to obtain prior testimony of the expert.” Coleman v. Dydula, 190 F.R.D. 316, 318 (W.D.N.Y. 1999); Anderson v. Caldwell Cty. Sheriff’s Office, No. 1:09CV423, 2011 WL 2418509, at *1 (W.D.N.C. June 13, 2011); Hicks, 2009 WL 2243794, at *6-*7; Carrillo v. B & J Andrews Enterprises, LLC, No. 2:11-CV-01450-RCJ, 2013 WL 420401, at *5 (D. Nev. Jan. 31, 2013). “Prior testimony of an expert can be critical to cross-examining the expert and attacking the expert’s opinion. Indeed prior testimony may reveal whether the expert is genuine and properly following some scientific method with integrity or simply in the business of expressing whatever opinion is helpful to the party hiring the expert.” Wierzbicki v. United States, No. CIV 11-3021-RAL, 2013 WL 4523582, at *3 (D.S.D. Aug. 27, 2013). While Dr. Danoff did include a list of testimony with his report (see Ex. 1), it suffers from two important flaws. First, Dr. Danoff cannot confirm that the list is actually a complete list of his prior testimony. (SOF ¶ 21). Pursuant to Rule 37(a)(4), an incomplete disclosure under Rule 26(a)(2)(B) is treated as a failure to disclose. Williams v. Univ. Med. Ctr. of S. Nev., No. 2:09-CV-00554-PMP, 2010 WL 2802214, at *4 (D. Nev. July 14, 2010). This in and of Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 9 of 18 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 itself is sufficient to strike Dr. Danoff’s testimony. Carrillo, 2013 WL 420401, at *5; Elgas v. Colorado Belle Corp., 179 F.R.D. 296, 300 (D. Nev. 1998) (striking expert for failure to provide complete list of cases); Norris v. Murphy, No. CIV.A. 00-12599-RBC, 2003 WL 21488640, at *2-*5 (D. Mass. June 26, 2003); see also Anderson, 2011 WL 2418509, at *2 (“As a threshold matter, the expert report contains only a partial list of the cases in which Dr. Gardner has testified over the last four years. Rule 26, however, requires that the expert report contain a list of all the cases in which the expert has testified as an expert at trial or by deposition.”). Second, and even more problematic, is that the information he does provide does not meet the requirements of the Rule. The courts that have addressed this issue have uniformly held that the minimum information necessary for an adequate disclosure include (1) the name of the court or administrative agency where the expert previously testified, (2) the names of the parties, (3) the case number, and (4) whether the testimony was provided at trial or at a deposition. See, e.g., Anderson, 2011 WL 2418509, at *1; Coleman, 190 F.R.D. at 318; Elgas, 179 F.R.D. at 300; Nguyen v. IBP, Inc., 162 F.R.D. 675, 682 (D. Kan. 1995); Hicks, 2009 WL 2243794, at *6-*7; Pineda v. City & Cty. of San Francisco, 280 F.R.D. 517, 522 (N.D. Cal. 2012); Crouch v. John Jewell Aircraft, Inc., No. 3:07-CV- 638-DJH, 2016 WL 157470, at *3-*4 (W.D. Ky. Jan. 12, 2016). Here Dr. Danoff listed 54 instances in which he has provided testimony over the prior four years. (SOF ¶ 10). That list did not include case names for the majority of the cases, instead providing a single reference name, presumably one of the parties. (SOF ¶ 11). The list did not include the jurisdiction or case number for any of them. (SOF ¶ 12- 13). Nor did the list provide whether the testimony was deposition or trial testimony for any of the listed testimony from 2014 or 2015. (SOF ¶ 14). Courts have roundly held that without this basic information, opposing counsel cannot adequately research prior testimony of the expert witness. See, e.g., Coleman, 190 F.R.D. at 318-19; Pineda, 280 F.R.D. at 521-22; Paramount Media Grp., Inc. v. Vill. of Bellwood, No. 13 C 3994, 2015 WL 5307483, at *6 (N.D. Ill. Sept. 10, 2015); Wallace v. Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 10 of 18 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hounshel, No. 1:06CV1560RLY-TAB, 2008 WL 2184907, at *3 (S.D. Ind. May 22, 2008). It is improper to shift the burden of locating prior testimony without this information onto the non-producing party. Coleman, 190 F.R.D. at 318 (Majewski v. Southland, 170 F.R.D. 25, 27 (D. Kan. 1996); Nguyen, 162 F.R.D. at 682); Hicks, 2009 WL 2243794, at *6-*7. “The adverse party should not be placed at a disadvantage or be deprived of the full benefits of Rule 26 by the selection of an expert who cannot or will not make the required disclosures. The selection and retention of an expert witness is within the control of the party employing the expert. To the extent that there is a disadvantage created by the expert’s failure to disclose it must be borne by the party retaining the expert witness.” Anderson, 2011 WL 2418509, at *1-*2 (citing Nguyen, 162 F.R.D. at 681); Palmer v. Rhodes Mach., 187 F.R.D. 653, 656-57 (N.D. Okla. 1999). Facing a similar situation to that here (i.e., including only contact information of the retaining attorneys), the district court in Nguyen explained why this is unacceptable: With the information supplied herein, the defendant would be required to contact each of the attorneys listed and obtain the identification of the “cases.” Of necessity, each attorney contacted would be required to cooperate by searching his indexes and files to obtain the information and by providing such information in a timely manner. While ultimately the party might obtain the information in those cases where the attorneys are sufficiently identified and cooperative, the burden is shifted from the disclosing party to the discovering party to identify the “cases.” Such is not contemplated by Fed. R. Civ. P. 26(a)(2)(B). In order to obtain the information which the plaintiff is required to disclose, the defendant must expend substantial time and resources. Cooperation of more than 100 attorneys who are not involved in this case in any way would also be required. Nguyen, 162 F.R.D. at 681-82; see also Loeffel Steel Prod., Inc. v. Delta Brands, Inc., 387 F. Supp. 2d 794, 820 (N.D. Ill. 2005) (“I need not decide why the curriculum vitae failed, with but two exceptions, to list the names of the 116 cases. Whatever the reason, given [the expert’s] extensive experience and the defendants’ lawyer’s sophistication, the skeletal format employed was indefensible and severely compromised [Plaintiff’s] ability to investigate [the expert’s] involvement in any but a handful of the 116 matters he listed.”). As one district court recently opined, the government does nothing wrong by “expecting compliance with Rule 26(a)(2)(B) . . . and ought not to be the party penalized by [an Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 11 of 18 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 opposing expert’s] choice not to do what []he plainly should have done long ago in keeping such a list.” Wierzbicki, 2013 WL 4523582, at *3. C. Consequences of non-disclosure Rule 37(c)(1) gives teeth to the expert disclosure requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed. Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); see also Luke v. Family Care & Urgent Med. Clinics, 323 Fed. App’x 496, 498 (9th Cir. 2009). “The sanction is automatic and mandatory unless the sanctioned party can show that its violation ... was either justified or harmless.” Grove City Veterinary Service, LLC, 2016 WL 1573830, at *16 (quoting Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998)); Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826-27 (9th Cir. 2011). The burden is on the party seeking to introduce the evidence that the failure to disclose is substantially justified or harmless. Yeti by Molly, Ltd., 259 F.3d at 1106; Goodman, 644 F.3d at 827.3 Because Plaintiffs have violated Fed. R. Civ. P. 26(a)(2)(B) in Dr. Danoff’s disclosure and did not correct the deficiencies when asked to do so, the question now becomes whether Plaintiffs can show that non-compliance was justified or harmless. As explained below, they can do neither. 1. Plaintiffs cannot show the failure to disclose was justified As has become clear from both Dr. Danoff’s deposition testimony in this case, and 3 Some district courts have improperly applied an additional five factor test from Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 (9th Cir. 1997), before excluding an expert. But, the Ninth Circuit has never applied that test in cases concerning exclusion of experts, and in fact, subsequent to Wendt has limited the inquiry solely to the question of whether the failure to disclose was substantially justified or harmless. See Goodman, 644 F.3d at 827; Luke, 323 Fed. Appx. at 498; see also Univ. of Pittsburgh v. Hendrick, 2006 WL 6837606, at *1 (C.D. Cal. Oct. 3, 2006) (“Because this motion concerns exclusion of evidence rather than dismissal or entry of judgment by default, the five-factor test is inapplicable.”); Toomey v. Nextel Comms., Inc., 2004 WL 5512967, at *4 n.2 (N.D. Cal. Sept. 23, 2004) (rejecting application of five factor test to exclusion of expert testimony inquiry by relying on Yeti); see also Harris v. United States, 132 F. App’x 183, 184 (9th Cir. 2005) (rejecting the adoption of a “factors” test to limit the Rule 37(c)(1) sanction for exclusion of an expert). Thus, the only question is whether Plaintiffs have shown that the improper disclosure was substantially justified or harmless, and if they do not, then exclusion is the proper sanction. Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 12 of 18 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this Court’s order in the Scharf case, the reason that Plaintiffs provided an incomplete list of Dr. Danoff’s prior testimony is that Dr. Danoff does not keep a list of such matters or the information necessary to create a proper list. (SOF ¶¶ 19-22). The only reason that the incomplete list he did provide even exists is that he was ordered to provide a list to defense counsel in Scharf, acceptable to them on pain of being stricken.4 2016 WL 1084748, at *4. However, even after nearly being stricken in that case Dr. Danoff defiantly testified that he still does not maintain a list of his prior testimony and that the report stands for what it is. (SOF ¶ 22; Ex. 2 at p. 26, ln. 13). The courts have consistently held that failure of an expert to maintain a list or the materials necessary to provide the required list is not a substantial justification for non- compliance. Scharf, 2016 WL 1084748, at *4; Anderson, 2011 WL 2418509, at *1-*2; Coleman, 190 F.R.D. at 318; Elgas, 179 F.R.D at 300; Nguyen 162 F.R.D. at 681; Wallace, 2008 WL 2184907, at *3; Palmer, 187 F.R.D. at 656; Jennings v. Thompson, 792 F. Supp. 2d 1, 6-7 (D.D.C. 2011); Pineda, 280 F.R.D. at 521. “A party may not simply retain an expert and then make whatever disclosures the expert is willing or able to make notwithstanding the known requirements of Rule 26.” Nguyen, 162 F.R.D. at 681-82; Palmer, 187 F.R.D. at 656-57; Whalen v. CSX Transp., Inc., No. 13CIV3784LGSHBP, 2016 WL 5660381, at *5 (S.D.N.Y. Sept. 29, 2016) (“A party should not be able to evade the requirements of Rule 26 (a)(2)(B)(v) through the simple expedient of hiring an expert who discards the records of his prior testimony; Rule 26 (a)(2)(B)(v)’s requirement would quickly become a dead letter if it could be side-stepped by this simple expedient.”). As noted by one district court, there are two explanations for this failure: “[t]he first is that he patently (and with some degree of arrogance) refuses to keep the records which would 4 While defense counsel there may not have raised any further issues with the list provided, there was no ruling by the district court that this incomplete list met the requirements of Fed. R. Civ. P. 26(a)(2)(B). See generally Docket, No. 3:14-CV-8183- HRH (D. Ariz.). That another attorney raised no further complaints with this list in another case is not a substantial justification. See Coleman, 190 F.R.D. at 318-19 (“Failure to provide this information in the past does not justify failure to comply with Rule 26(a)”); Hicks, 2009 WL 2243794, at *6 (same). Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 13 of 18 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 enable him to comply ... [t]he second possible reason ... is that the information is available but that he cannot be bothered to be put to the task of doing the digging necessary to discover the information.” Norris, 2003 WL 21488640, at *3-*4; Fyfe v. Baker, No. 1:06- CV-28, 2007 WL 1866882, at *1 (D. Vt. June 28, 2007). In fact, Plaintiffs took the exact opposite view when Defendant requested that they supplement the list. Plaintiffs asserted that once the expert provided whatever information he had readily available, it was Defendant’s burden to track the information down or pay Plaintiffs’ expert for his time to try and figure it out. (SOF ¶ 16). Plaintiffs’ counsel went so far as to question why an expert testifying in federal court would need to keep track of the case numbers in which he had testified. (Id.). Such an expert “should not be offering their services in federal court if they cannot (or will not) comply with the Federal Rules and attorneys should not be retaining such experts.” Fyfe, 2007 WL 1866882, at *1 (citing Norris, 2003 WL 21488640, at *5). Thus, Plaintiffs have had “ample notice of the expert witness disclosure requirements via the [. . .] requests for [complete case information on] the expert’s trial and deposition lists, the questioning on these topics at the expert’s deposition several months ago, the present motion . . ., and the Federal Rules themselves.” Jennings, 792 F. Supp. 2d at 6-7. In light of these facts, Plaintiffs cannot demonstrate that their failure to provide a complete list of Dr. Danoff’s prior testimony complying with Fed. R. Civ. P. 26(a)(2)(B) was substantially justified. 2. Plaintiffs cannot demonstrate that their failure to provide the required information was harmless Courts have consistently pointed out that without the name of the court or administrative agency where the expert previously testified, the names of the parties, the case number, and whether the testimony was provided at trial or at a deposition, opposing counsel cannot adequately research prior testimony of the expert witness. Coleman, 190 F.R.D. 318-19; Pineda, 280 F.R.D. at 521-22; Paramount Media Grp., Inc. 2015 WL 5307483, at *6 (“defendants are entitled to explore Paramount's experts’ prior testimony to attempt to uncover inconsistencies between the opinions they intend to express in this Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 14 of 18 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 case and the opinions expressed in other cases”); Wallace, 2008 WL 2184907, at *3 (same); see also Scharf, 2016 WL 1084748, at *4 (“Dr. Danoff’s failure to provide a case list also is not harmless because ‘it undermines [defendants’] ability to properly prepare for an effective deposition or cross-examination’ of Dr. Danoff.”). As explained above, defense counsel’s search for the prior testimony using the limited information Dr. Danoff provided proved unfruitful. (SOF ¶ 17; Smart Declaration ¶ 7). Plaintiffs presumably will assert that the disclosure is harmless because they often included contact information for one of the attorneys on the case. However, this does not render the incomplete disclosures harmless. Nguyen, 162 F.R.D. at 681-82. Plaintiffs would improperly shift the significant time burdens onto Defendant to contact numerous attorneys from across the country who have nothing to do with the present case, in the hopes that they would give Defendant more information about the case at issue and/or provide copies of the testimony to Defendant. Id.; Wallace, 2008 WL 2184907, at *3. Had Plaintiffs provided the required information, it would be sufficient to allow Defendant “to review the proceedings to determine whether relevant testimony was given” and “be able to determine the type of claim presented and locate any recorded testimony.” Nguyen, 162 F.R.D. at 682; (Smart Declaration ¶ 7). The failure to disclose sufficient information robbed Defendant “of the right to prepare cross examination for deposition and trial.” Baca v. Depot Sales, LLC, No. CIV.A. 06CV00714EWNP, 2007 WL 951163, at *1-*2 (D. Colo. Mar. 27, 2007); Wierzbicki, 2013 WL 4523582, at *3. Although not its burden to do so, Defendant attempted to find a way to ameliorate some of this harm by asking Dr. Danoff to identify which of his cases were on a similar subject matter as the present case; however, Dr. Danoff testified that he was unable to do so. (SOF ¶ 23). These circumstances have robbed Defendant of the opportunity to fully prepare its deposition of Dr. Danoff, and subsequently trial cross-examination. This situation is far from harmless, and Dr. Danoff should be precluded from offering testimony either on motion or at trial in this case under the automatic sanction under Fed. R. Civ. P. 37(c). Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 15 of 18 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. Plaintiffs did not disclose the necessary expert opinion that the absence of an earlier referral to urology caused any harm to Mr. Cherry, and thus Defendant is entitled to summary judgment on this theory of malpractice Even if Plaintiffs could somehow show Dr. Danoff’s incomplete disclosure was justified or harmless, Defendant is entitled to summary judgment on the issue of whether a lack of a referral of Mr. Cherry to urology earlier than April 2012 was the cause of harm to Mr. Cherry. An expert’s report must contain, inter alia, “a complete statement of all opinions to be expressed and the basis and reasons therefor.” Fed. R. Civ. P. 26(a)(2)(B)(i)- (vi). The Advisory Committee’s Note to the 1993 amendments to Rule 26 reveals that the report to be provided is to be “a detailed and complete written report, stating the testimony the witness is expected to present during direct examination, together with the reasons therefor.” In re Cent. European Indus. Dev. Co., 427 B.R. 149, 158-59 (Bankr. N.D. Cal. 2009). An expert report must be detailed and complete so that “opposing counsel is not forced to depose an expert in order to avoid ambush at trial and sufficiently complete so as to shorten or decrease the need for expert depositions and conserve resources.” Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 n. 6 (7th Cir.1998); Hicks, 2009 WL 2243794, at *5 (same); M.H. v. Cty. of Alameda, No. 11-CV-02868-JST, 2015 WL 894758, at *2 (N.D. Cal. Jan. 2, 2015). Here, the opinions in Dr. Danoff’s report asserting that a urethroscopy would have made a difference in Mr. Cherry’s outcome are restricted to the April 2012 urology appointment.5 (See Ex. 1, p. 3, ln. 8-10). Nowhere in that report does Dr. Danoff opine that a urethroscopy performed on a referral from any of those pre-April 2012 appointments would have revealed anything in the urethra requiring treatment. (See Ex 1, p. 2, ln. 15- 17, 25-27). He merely asserts that had a referral occurred at an earlier date, he believes that a urethroscopy would have likely been done. (Id.). Accordingly, because Dr. Danoff did not include a causation opinion in his report that the lack of an earlier referral to urology 5 Of course Defendant, through its urologic oncology expert, Dr. Lynch, and Dr. Papoff himself, disputes this assertion. However, the Court need not resolve that dispute for the purposes of this motion. Nor will it ever if Dr. Danoff is precluded from testifying. Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 16 of 18 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was the proximate cause of any harm to Mr. Cherry, an issue on which Plaintiffs bear the burden of proof, Defendant is entitled to summary judgment on that aspect of Plaintiffs’ malpractice claim. V. Conclusion Plaintiffs’ expert disclosure for Dr. Danoff is deficient because it does not include a complete list of prior testimony as is required under Fed. R. Civ. P. 26(a)(2)(B). Plaintiffs cannot show that their failure to provide a complete disclosure was substantially justified, or harmless. Accordingly, the Court should exclude Dr. Danoff from providing testimony either at trial or by way of deposition or affidavit on summary judgment, under the automatic sanction of Fed. R. 37(c). Without Dr. Danoff, Plaintiffs cannot meet their burden to show a breach of the urology standard of care or that the urologic care at issue was the proximate cause of Mr. Cherry’s harm, nor can they establish, with or without Dr. Danoff, that the lack of an earlier referral to urology was the proximate cause of Mr. Cherry’s harm. Thus, Defendant is entitled to summary judgment on those aspects of Plaintiffs’ claims. Celotex, 477 U.S. at 322-23. This would leave only the claims arising out of the dermatology care (excepting any claim that there should have been an earlier referral to urology) for trial. Dated this 13th day of January, 2017. JOHN S. LEONARDO United States Attorney District of Arizona s/ Adam R. Smart ADAM R. SMART Assistant U.S. Attorney Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 17 of 18 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on January 13, 2017, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing a copy to the following CM/ECF registrant: John Curtin, Esq. ROBBINS & CURTIN, PLLC 301 E. Bethany Home Rd., #B-100 Phoenix AZ 85012 john@robbinsandcurtin.com Attorney for Plaintiffs s/Adam R. Smart U.S. Attorney’s Office Case 2:15-cv-00236-PGR Document 122 Filed 01/13/17 Page 18 of 18