Mountain v. United States of America

OCR transcription for search; preserved printed pages are authoritative

Case 2:19-cv-00005-ABJ Document 90 Filed 09/11/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FILED

FOR THE DISTRICT OF WYOMING

11:47 am, 9/11/20
U.S. Magistrate Judge

SARAH MOUNTAIN,
Plaintiff,
vs. Case No: 19-CV-005-J
UNITED STATES
Defendant.

ORDER ON DEFENDANT’S EVIDENTARY MOTIONS

This matter comes before this Court upon Defendant’s seven evidentiary motions
[Docs. 43-49]. Defendant’s seven motions are addressed in this single order due to the
similarities of the motions and the arguments presented by the parties.

BACKGROUND

This case alleges the medical negligence of Defendant in its treatment of Plaintiff.
On April 27, 2016 Plaintiff was driving to work at the Community Health Center of
Central Wyoming, (CHCCW)', where she was employed as a hygienist at the dental clinic,
when she began to experience significant health symptoms, including nausea, dizziness,
headache and distorted vision. Plaintiff could not exit her vehicle and at 8:37 a.m. she was

assisted into CHCCW’s Quick Care clinic by fellow employees, where she was seen by a

' CHCCW is deemed an employee of the United States under the Federally Supported Health Centers Assistance
Act, 42 USC §233(g){1)(A).

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nurse practitioner, Mr. Snyder. The Plaintiff remained at the Quick Care clinic for many
hours. Mr. Snyder diagnosed Plaintiff with vertigo and referred her to Windy City
Physical Therapy. Plaintiff refused and requested to be transferred to the Wyoming
Medical Center emergency room. She was transported by ambulance and arrived at the
Wyoming Medical Center at 2:20 p.m. At the Wyoming Medical Center, it was quickly
determined that Plaintiff had suffered a stroke and she was seen by Dr. Alana Cozier.
Plaintiff was beyond the time frame for treatment with Tissue Plasminogen Activator
(tPA), but the doctor ordered a CT scan in the hope that due to Plaintiff's young age she
might still be suitable for tPA treatment. The CT scan showed a complete infarct in
Plaintiff's left cerebellar hemisphere and it was determined that she was no longer suitable
for administration of tPA.

The focus of these motions goes to the parties’ substantial dispute regarding
causation. Plaintiff contends that the negligence of Defendant deprived her from the
benefits of tPA which would have resulted in little or no disability. Defendant contends
that the lack of administration of tPA does not satisfy the legal requirement of causation
and as such Plaintiff's claims fail. These pending motions address the relevant contested
issue of the potential efficacy of the tPA treatment for the Plaintiff had it been
administered in a timely basis.

LAW AND FINDINGS
1. Meet and Confer
This Court’s Local Rule 7.1(b)(1)(A) requires the parties to meet and confer in a

good faith effort to resolve the dispute prior to the filing of any non-dispositive motion.

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The Plaintiff has asserted in a number of its responsive pleadings that Defendant failed to
do so. See Documents 61, 62 and 67. In addition there is no statement by Defendant that
there was an effort to meet and confer prior to the filing of any of these motions as required
by the Local Rule and Defendant did not address the meet and confer requirement in any
of its reply briefs. As will be seen below, these motions are in part based upon Defendant’s
claim that Plaintiff did not follow the rules. The rules are designed to aid the procedural
process of moving a case through discovery to trial in an efficient and fair manner. This
Court, as in this manner, is faced with attempting to enforce those rules in a manner which
does not allow gamesmanship to defeat the cause of justice. A case should be decided on
its merits, not on procedural technicalities. Nevertheless, the Court cannot allow the rules
to be flaunted by either side. This Court could refuse to consider these motions for failure
to comply with the meet and confer requirement. But, to do so will only delay the process
and potentially adversely impact the timely resolution the litigants are entitled to. This
Court will address the pending motions with yet another strong caution as to the
importance of the meet and confer process. It appears that the process could have resolved
at least one of these motions.
2. Federal Rule of Evidence 702 & Daubert

Defendant submitted three motions seeking to strike the expert testimony of expert
witnesses designated by Plaintiff [Docs. 43, 44 & 45]. The primary focus of Defendant’s
motions are that the experts should not be allowed to testify as their testimonies do not
qualify under the requirements of Federal Rule of Evidence 702, Daubert v. Merrell Dow

Pharmaceuticals. Inc., 509 U.S. 579 (1993), and its progeny. When expert testimony is

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so challenged the court must assess the admissibility using a two-step analysis. The court
must first determine if the expert is qualified by “knowledge, skill, experience, training,
or education” to render an expert opinion. Fed. R. Evid. 702. If so qualified, the court must
then assess whether the opinions are reliable under Daubert and Kumho Tire Co. Ltd. v.
Carmichael, 526 U.S. 137 (1999). The parties do not appear to contest that these three
experts, Dr. Lobatz, Dr. Barr, and Dr. Cozier are qualified. They are all board certified in
their area of medical practice. Defendant is instead focused on the reliability of the
testimony.

Regarding methodology and procedures under Daubert, a court is to find an expert
opinion reliable under Rule 702 if the opinion is based on “good grounds.” Jn re Paoli
R.R. Yard PCB Litig., 35 F.3d 717, 743 (3d Cir.1994), Meaning that, if the opinions are
based on methods and procedures of science, they can be admissible regardless of whether
the court thinks the opinions are correct. Jd. The court’s focus “must be solely on
principles and methodology, not on the conclusions that they generate.” /d. at 744 (citing
Daubert, 509 U.S. at 595).

This Court’s analysis of Defendant’s Daubert objections differs when the matter is
to be tried to the court and not a jury. The typical concern that unreliable expert testimony
will be presented to a jury are absent for a bench trial. Attorney General of Oklahoma v.
Tyson Foods, Inc., 565 F.3d 769, 779 (10th Cir. 2009). Daubert’s primary purpose is to
protect juries from unreliable or confusing scientific testimony, and these concerns are
significantly lessened in a bench trial. Thus, trial courts conducting bench trials have the

flexibility to admit proffered expert testimony and to then decide during trial whether the

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evidence meets the requirements of Daubert and Rule 702. Morris v. United States, 2010
WL 8848636. The trial judge is fully capable of sorting the wheat from the chaff at trial.
With this in mind. Defendant’s individual motions will be addressed.

a. Dr. Lobatz [Docs. 43, 63 & 79]

Dr. Lobatz is a board-certified neurologist who has practiced, taught, and
performed research in the field of neurology and strokes. Dr. Lobatz has been retained
to “...offer opinions, generally, on the timing and development of Ms. Mountain’s strokes,
the potential window in which tPA could have been effectively administered, the
diagnosis and prognosis for Ms. Mountain, and the (sic) how the delay in a timely referral
to the hospital caused Ms. Mountain’s permanent injuries.” [Doc. 20 p.2]. Plaintiff
presented a 21-page report which included Dr. Lobatz’s qualifications, document sources,
findings of his examination of Plaintiff, and summary of his opinions with citations to
references supporting his conclusions. Attached to his report are over 140 pages of
documentation, including copies of research reports supporting his findings. Defendant
challenges Dr. Lobatz’s opinions regarding the efficacy of prompt treatment with tPA,
asserting that his opinions are conclusory and without methodology. Defendant rather
seeks to rely upon a 1995 study which Defendant asserts shows only 11 to 13% of patients
treated with tPA had “minimal or no disability at three months” as compared to those who
did not receive the treatment. Tissue Plasminogen Activator for Acute Ischemic Stroke,
333 New Eng. J. of Med. 1581 (1995) [Doc. 28-2]. Defendant asserts that Dr. Lobatz
does not provide any authorities and that his opinions are in conflict with the above study,

which is commonly referred to as the “NINDS” report. More specifically, Defendant

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asserts that Dr. Lobatz cannot support his contention that the Plaintiff would have
benefitted from timely treatment with tPA to a level of legal causation.

The NINDS report forms the basis of each of the Daubert objections. Defendant
asserts that the NINDS report is the gold standard as a result of its double-blind
methodology, which is recognized as the most authoritative medical trial process. This
1995 report was the basis of the FDA’s acceptance of tPA for the treatment of stroke
patients and Dr. Lobatz was involved in the clinical trials leading to the NINDS report.

Plaintiff counters that the NINDS study, while significant, does not answer or
address the question of the use of tPA in her treatment. She points out that her medical
condition was not comparable with those used in the NINDS study and that her specific
stroke circumstances would have excluded her from participation in the study. Plaintiff
argues that the findings of the NINDS study are not definitive of the circumstances
presented in her stroke.

Plaintiff asserts that Dr. Lobatz is qualified to testify regarding his opinion in that
he is using his training, knowledge, and experience as to the use of tPA for the treatment
of patients who present with similar conditions as the Plaintiff. In doing so, he is
considering Plaintiff's age, comorbidities, and the type and cause of the stroke.
Specifically, the Plaintiff was relatively young and her stroke is believed to have resulted
from the use of phentermine, birth control, and tobacco, rather than from vascular disease

typical of strokes in older patients.

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b. Dr. John Barr [Docs. 45, 61 & 77]

Dr. John Barr is a board-certified radiologist and a board-certified neuroradiologist
and has likewise practiced medicine in his field, instructed, and conducted peer reviewed

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research. He has been designated to offer opinions “...on the timing, location,
development and permanent damage caused by the infarcts in Ms. Mountain’s brain, as
well as the effectiveness of tPA and availability of tPA had there not been a delay in
referral of Ms. Mountain to higher level care”. Dr. Barr’s report discusses the nature of
the radiological studies and the lack of any contraindications for the administration of tPA.
Dr. Barr’s report states, “[h]ad she been so treated within the accepted 4.5 hour time
window, Ms. Mountain would more likely than not have experienced either no or much
less severe permanent neurological injuries, such as have rendered her unable to return to
her profession and to have impaired her activities of daily living.” [Doc 20-5 p. 6].
Defendant challenges this portion of Dr. Barr’s report in that it lacks any statement
as to the methodology used to reach this opinion. During questioning by the Plaintiff in
Dr. Barr’s deposition, Dr. Barr testified that the methodology of reviewing the findings of
the NINDS report used by Defendant’s expert, Dr. Meurer, is flawed and that the NINDS
report supports the opinion of Dr. Barr regarding the effectiveness of tPA treatment. More
specifically, Dr. Barr testified that in reviewing the NINDS study he emphasized the
outcomes for those participants in the report who received tPA treatment from 91 minutes

to 180 minutes after stroke onset. He observed, using a one stroke symptom scale, that

45% of patients who received tPA enjoyed a good outcome as compared to only 25% who

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received the placebo enjoyed a good outcome. To Dr. Barr this means that those who
received treatment were 80% more likely to have a good result.

In spite of the designation, the Plaintiff now asserts that it will not seek to have Dr.
Barr testify regarding causation as stated in Plaintiff's Response to Defendant’s F.R.E.
702/Daubert Motion [Doc 61 p.3]:

Dr. Barr is a board-certified neuroradiologist retained by Plaintiff to evaluate Ms.
Mountain’s radiological films and medical records and offer opinions on the timing,
location, development and permanent damage caused by the infarcts in Ms.
Mountain’s brain, as well as the availability of tPA had there not been a delay in
referral of Ms. Mountain to higher level care. Plaintiff does not intend to seek
testimony from Dr. Barr regarding whether tPA would have helped Ms. Mountain
had she been able to receive it.

This renders any further discussion regarding Defendant’s Daubert motion
unnecessary, and Dr. Barr will not be allowed to testify regarding whether tPA
would have benefited Plaintiff.

c. Dr. Crozier [Docs. 44, 66 & 78]

Dr. Alana Cozier was Plaintiff's treating board-certified neurologist at the
Wyoming Medical Center. Dr. Cozier is designated to testify as to several matters arising
from her treatment and care of Plaintiff, including that “...the administration of tPA would
have been a viable option and would have help to resolve the infarct and more likely than
not have prevented the permanent neurological damage.” [Doc 20 p.15]. She is listed as
a treating provider and no report was provided with the designation.

Defendant objects to the designation on the basis that it fails to provide detail as to

the doctor’s opinions, but rather only a list of topics of opinions. Defendant argues that

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such disclosure does not comply with the requirements of Rule 26(a)(2)(C). This
objection is subject to a separate motion filed by Defendant and will be addressed below.

Defendant seeks to strike Dr. Cozier’s testimony pursuant to Daubert. In many
ways Defendant’s motion mirrors its motion regarding Dr. Lobatz, but also focuses on Dr.
Cozier’s lack of a report. The lack of report means that Dr. Cozier has not provided a
formal opinion, nor the basis and support of such opinion. As such the Court is unable to
address the Daubert factors to test the reliability of Dr. Cozier’s opinions.

As a non-retained expert designation, Dr. Cozier’s opinions are not set forth in the
same detail as those of Dr. Lobatz and do not include a discussion of the basis for her
opinions regarding the efficacy of tPA treatment for the Plaintiff. The doctor’s medical
records reference that Plaintiff “could have” been helped by administration of tPA [Doc.
66-2 p. 11]. In addition, Dr. Cozier expanded upon her opinions in a July 6, 2020 letter
[Doc. 33 p.3] to Dr. Lobatz in regard to Defendant’s expert designation and an affidavit
of August 14, 2020 [Doc 66-10].

3. Daubert Discussion

Defendant seeks to exclude the testimony of each of the above listed witnesses on
the bases that the testimony does not pass the threshold as set forth in Rule 702, Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and its progeny. Federal Rule of
Evidence 702 reads:

A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:

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(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods;
and

(d) the expert has reliably applied the principles and methods to the
facts of the case.

The proponent of the expert testimony bears the burden of establishing the foundational
requirements of Rule 702. Kumho Tire Co. v. Carmichael, at 147.

The first requirement of Rule 702 is that the expert be qualified. From the
information provided each of Plaintiffs designated experts are board-certified medical
professionals within their respective fields of neurology. Defendant does not challenge
their basic qualifications. Additionally, the testimony must be helpful to the trier of fact.
Other than concerns regarding reliability there is little question that expert testimony
regarding the treatment of Plaintiff and the impact on her recovery is useful to the trier of
fact in addressing the merits of Plaintiff's case. We now turn to Daubert.

Daubert takes a three-pronged approach to the evaluation of expert testimony.
Those are “validity” or “reliability” of the evidence; degree of fit to the facts of the case;
and risk of confusion or misleading jury. Federal Evidence, Mueller and Kirkpatrick, 4th
Edition, Vol. 3, §7:10 p. 781. | Addressing the third factor first and as noted above, the
lack of risk of confusion to the jury is a substantial factor in this case favoring admission

of the testimony and impacting this Court’s review of the first two prongs. The reliability

? In so far as Defendant is arguing the expert opinions are not helpful to the trier of fact in that it does not comply
with the proper standards of causation, such arguments will be addressed under Daubert standards.

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of an expert’s testimony is ultimately the task for the trier of fact, which in this case is the
Court. As such, only expert testimony which clearly violates the Daubert standard should
be stricken at this point.

Reliability is the next hurdle for Plaintiff and the primary challenge of Defendant
to these experts’ efforts to testify as to the issue of causation. “To be reliable under
Daubert an expert’s scientific testimony must be based on scientific knowledge, which
‘implies a ground in the methods and procedures of science’ based on actual knowledge,
not ‘subjective belief or unsupported speculation.”” Dodge v. Cotter Corp., 328 F.3d
1212, 1222 (10th Cir. 2003). In this case it is not contested that tPA is the proper treatment
in many stroke circumstances and that it has been shown to be an effective treatment under
the proper circumstances. The use of tPA was approved by the FDA in large part due to
the results of the NINDS study which showed that there was a better rate of recovery for
specific stroke victims following the timely administration of tPA. For purposes of these
motions it is not contested that Plaintiff was denied such treatment as a result of the alleged
negligence of Defendant. Both Drs. Lobatz and Crozier are treating neurologist who are
familiar with the NINDS report and other peer review literature regarding stroke treatment
with tPA. In addition, they both have years of professional practice as neurologists in the
treatment of strokes, with and without tPA.

Defendant’s expert, Dr. Meurer, is not a neurologist, but is a board-certified
emergency room physician with extensive experience in the treatment of strokes. Dr.
Meurer undertook a review of clinical trials based upon his opinion as to the nature of the

Plaintiff's stroke. In doing so he had to cross reference a number of trials and studies in

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that the subject trials did not specifically fit the Plaintiff's diagnosis and circumstances.
There appears to be no precise study which fits the Plaintiff's circumstances and thus Dr.
Meurer undertook to extrapolate the existing studies to Plaintiff's situation, which
involved both subjective and objective analysis. Dr. Meurer also looked to the specific
sequala noted with Plaintiff and the information provided by the prior trials.

Finally, I searched the literature extensively for evidence that tPA is helpful

with many of the late effects of stroke [Plainitff] alleges she is experiencing

(tremor, pseudobulbar affect, etc.) I found no evidence in the published

literature that tPA protects against these effects either. Finally, very few

patients with mild, isolated cerebellar stroke have been included in rigorous,

well controlled trials comparing tPA to placebo. In fact, the NINDS trial

specifically excluded patients with isolated ataxia. This represents an

important additional reason it is not medically probable that tPA would have

been beneficial for her.

[Doc. 28-1 p. 17]

In doing so Dr. Meurer is of the opinion that the timely treatment with tPA would not have
improved significantly improved Plaintiff's outcome.

Drs. Lobatz and Crozier approach the problem from a different perspective. They
look to the unique circumstances of Plaintiffs stroke, and combine it with their
knowledge, training, and experience in the treatment of strokes to provide their opinion
regarding the potential for Plaintiff's recovery with timely tPA treatment. In doing so,
they view the literature differently than Dr. Meurer and are both of the opinion that had
Plaintiff received timely tPA treatment that she would “more likely than not” have been
able to return to work.

Neither method is exclusive nor wrong in the Court’s opinion. Under Defendant’s

view of the evidence there is no medical studies which support that Plaintiff would have

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had a complete recovery, while agreeing there is no study directly on point with Plaintiff's
circumstances, and as such there can be no finding of reliability. Its interpretation of the
NINDS report results in the opinion that Plaintiff was not injured to a medical degree of
probability by the failure to receive tPA. Plaintiff’s experts rely upon the studies regarding
tPA, but with much greater emphasis on their experience with the treatment of strokes.

Specifically, they assert that the Plaintiff was young for a stroke victim, “caused by a
coagulable state likely due to the combination of the use of phentermine, estrogen eluting
IUD (NuvaRing), hypertension, and tobacco use. Her arteries on CTA are normal. She
does not suffer from overt longstanding atherosclerosis. In my experience the use of a clot
busting drug (rTPA) in this setting is likely to be more effective versus an artery that is
damaged/hardened or closed by a lifetime of issues such as severe hypertension,
hyperlipidemia, and long-term tobacco abuse.” [Doc. 63-6 p.4].

Taken to the extreme, both sides have potential problems. Under Defendant’s view
there can be no medical causation testimony absent a study on point which would make
admissibility the exception rather than the rule.

Given the liberal thrust of the Federal Rules of Evidence, the flexible nature

of the Daubert inquiry, and the proper roles of the judge and the jury in

evaluating the ultimate credibility of an expert’s opinion, we do not believe

that a medical expert must always cite published studies on general causation

in order to reliably conclude that a particular object caused a particular

illness. To so hold would doom from the outset.all cases in which the state

of the research on the specific ailment or on the alleged causal agent was in

its early stages, and would effectively resurrect a Frye-like bright line

standard, not by requiring that a methodology be “generally accepted” but by

excluding expert testimony not backed by published (and presumably peer-
reviewed) studies.

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Heller v. Shaw Industries, Inc., 167 F.3d 146, 155 (3rd Cir. 1999).

On the other hand, the simple qualification of an expert alone is not enough to open
the door to all manners of opinions. “Trust me, I am an expert” will not carry the day.
Nevertheless, it is permissible for an expert to draw upon his/her experience and Daubert
did not alter this principal as noted in the Advisory Committee Notes to Rule 702.

Nothing in this amendment is intended to suggest that experience alone—or

experience in conjunction with other knowledge, skill training or

education—may not provide a sufficient foundation for expert testimony. To

the contrary, the text of Rule 702 expressly contemplates that an expert may

be qualified on the basis of experience. ... If the witness is relying solely or

primarily on experience, then the witness must explain how that experience

leads to the conclusion reached, why that experience is sufficient basis for

the opinion, and how that experience is reliably applied to the facts. The trial

court’s gatekeeping function requires more that simply “taking the expert’s

_ word for it.”

Advisory Committee Notes, 2000 Amendments.

As noted, Drs. Lobatz and Cozier seek to opine that Defendant’s failure to
diagnose and obtain proper treatment for Plaintiff was a substantial factor in causing the
Plaintiff's injuries. Admission of such expert testimony requires the court to find that the
opinions are based on “good grounds”. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 743
(3rd Cir. 1994). The opinions must be bases on methods and procedures of science, and
if so, are admissible regardless of the court’s belief in the correctness of the opinions.

Defendant’s challenge is based significantly on the findings of the NINDS report.
Plaintiff's experts acknowledge the importance of the NINDS report but assert that the
report is not definitive in regard to the Plaintiff's medical condition of April 27, 2016. In

doing so the Plaintiff relies in large part upon her treating neurologist’s and her retained

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neurologist’s experiences and knowledge from using tPA in the treatment of similarly
situated patients during the course of the medical practices, as well as other more recent
research. Dr. Barr, who Plaintiff asserts she will not call regarding the issue of causation,
looked at the relative verses actual chances of recovery based upon his reading of the
NINDS report. This approach has been rejected by some courts but need not be discussed
herein due to Plaintiff's withdrawal of any such testimony. See Samaan v. St. Joseph
Hospital, 670 F.3rd 21 (1st Cir. 2012), Young v. Memorial Hermann Hospital System, 573
F.3d 233 (2009) and Smith v. Bubak, 643 F.3rd 1137 (8th Cir. 2011)°.

This is not a circumstance where the experts should be struck on the basis of
Daubert. All the medical causation experts are relying upon their expertise and on the
type of information generally relied upon by medical care providers. There is no junk
science here, but rather experts looking upon the same basis of information and reaching
differing conclusions. This is not a case where someone wants to testify that walnut hulls
cures cancer or that excessive exposure to moon beams leads to mental illness. Rather,
there is a recognized and studied treatment which has shown therapeutic benefits and the
issue is the degree of benefit expected in a particular scenario. This is a classic case where
the truth is to be divulged within the presentation and cross examination of the expert.

Daubert does not take sides on professional differences. The universe of knowledge

>It should be noted that these cases considered the proffered expert testimony in light of
the required standard of proof for causation of damages. In Maine, Texas, and South
Dakota it must be shown that the injuries were “more likely than not” a result of the
negligence rather than Wyoming’s “substantial factor” causation standard as set forth in
§ 431 Restatement 2d Torts.

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regarding tPA is far broader than that found within the NINDS report and that report is
but one aspect of the body of knowledge which shapes this conflict in opinions.
Defendant’s motion to strike Drs. Lobatz and Crozier pursuant to Rule 702 are denied. As
to Dr. Barr, the motion is granted as it appears to be conceded by Plaintiff’s concession
that the doctor will not testify as to causation based upon the efficacy of tPA.

4. Rebuttal Testimony

a. Dr. Lobatz [Docs. 46, 64 & 82]

Defendant seeks to strike the rebuttal designation of Dr. Lobatz [Doc. 33] on the
grounds that it is not proper rebuttal and should have been asserted in Dr. Lobatz’s original
designation. After reviewing the designation, the Court does not see the designation as
improper. It was timely filed pursuant to Fed. R. Civ. P. 26(a)(2(D) and specifically
addresses the issue which is the subject of both Dr. Lobatz’s original designation and Dr.
Meurer’s report. Dr. Lobatz provides an opposing view to Dr. Meurer’s opinions. These
opinions are properly a subject for cross-examination at trial and not for pretrial motion.

b. Dr. Barr [Docs. 47, 62 & 80]

Defendant also seeks to strike the “rebuttal” testimony of Dr. Barr presented during
his deposition of July 17, 2020. At the conclusion of the questioning of Dr. Barr,
Plaintiff's attorney questioned Dr. Barr regarding his responses to Dr. Meurer’s report.
This is not a proper procedure to amend a designation. “[T]his Court finds that Fed. R.
Civ. P. 26 does not allow parties to cure deficient expert reports by supplementing them
with later deposition testimony. A deficient expert report should be met with a motion to

supplement, not a notice of deposition.” Robinson v. Flowserve, 2015 WL 10714176. In

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so far as Dr. Barr’s testimony attempts to cure a deficient expert designation, it is
improper. Dr. Barr’s testimony is clearly in rebuttal to the opinions of Dr. Meurer. Dr.
Barr provided a conclusionary opinion in his report that the Plaintiff's treatment with tPA
would more likely than not avoided or reduced her neurological injuries. His deposition
testimony is his interpretation of the NINDS report in direct response to Dr. Meurer. This
motion is effectively conceded by Plaintiff in her statement that Dr. Barr will not testify
regarding causal relationship between tPA and Plaintiff's recovery. This motion is
granted.
5. Defendant’s Motion to Strike Rule 26(a)(2)(C) Witnesses [Docs. 48, 65 & 84]
Defendant asserts that Plaintiff's designation of non-retained experts pursuant to
Fed. R. Civ. P. 26(a)(2)(C) is improper and insufficient. The designated individuals are
treating medical providers for Plaintiff. Defendant takes primary exception to the
designation of Dr. Cozier. Dr. Cozier was Plaintiff's primary treating neurologist during
her hospitalization and subsequent release. There is a great deal of discussion regarding
the differences between treating and non-retained experts. This is not defined by the title
of the expert, but rather the nature of their testimony. Ifa treating provider attempts to
extend their testimony to matters beyond their treatment, they must be so designated. Rule
26(a)(2)(C) reads:

Unless otherwise stipulated or ordered by the court, if the witness is not
required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702,703, or 705; and
(ii) a summary of the facts and opinions to which the witness is
expected to testify.

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Plaintiff's designation of Dr. Cozier covers many topics, most relating to her treatment
and opinions regarding treatment options [Doc. 20 p. 14-15]. The designation does more
than simply reference medical records, nevertheless it is not a model of a proper
designation of a treating physician. While it clearly delineates some of the doctor’s
opinion, it is rather vague as to her opinions regarding limitations and disability of
Plaintiff. The Court will limit such testimony to the period of time in which Dr. Cozier
was treating Plaintiff and may be supported by statements in her medical records. The
designation also states that Dr. Cozier will testify regarding her conversations with the
experts and “her general agreement with their expert recommendations and her
concurrence with their opinions.” If a medical provider is designated to testify in
- accordance with their medical reports, they may not expand their testimony beyond those
records, such as prognosis, unless such testimony properly designated.

As an initial matter, Defendants argue Plaintiff's treating physicians may only
testify as to factual matters and the substance of their own medical records.
Plaintiff does not oppose this argument, and the Court agrees that as non-
retained experts, the testimony of Plaintiff's treating physicians cannot extend
beyond their own observations, treatment, and patient diagnosis. See Iverson
v. Sentinel Insurance Company Ltd., No. 13-CV-237-F, 2014 WL 11498046,
at *4 (D. Wyo. Apr. 25, 2014). Additionally, Plaintiffs treating physicians
cannot review the records of another healthcare provider to formulate
opinions as to the appropriateness of care. Jd. However, this ruling is not
intended to preclude Plaintiff's treating physicians from testifying about the
medical records of another provider when the physicians consulted such
records in the course of their treatment or if such records are of the type
reasonably relied upon by the treating physician in forming their
opinions. See FED. R. EVID. 703; Starling v. Union Pacific R. Co., 203
F.R.D. 468, 480-81 (D. Kan. 2001).

Infiesta-Montano v. Cocca Development Ltd., 2019 WL 7630627 (D.Wyo
June 7, 2019)

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Dr. Crozier’s designation that she will testify as to her concurrence with retained experts
is not a matter that arose during her treatment of Plaintiff and as such is not a proper
subject of testimony for a non-retained expert absent a designation in compliance with
Rule 26(a)(2)(C), which this isn’t.

Dr. Crozier did appear to form opinions regarding the efficacy of tPA for Plaintiff
during her actual treatment. Dr. Cozier stated in her contemporaneous medical records
that “[w]e could have helped her earlier by giving her tissue plasminogen activator
(TPA).” [Doc 66-2 p 11]. As such, Defendant was on notice from the beginning of this
case that Dr. Cozier believed that Plaintiff would have benefited from administration of
tPA. In that this statement is included within Dr. Cozier records and addressed in her
designation she will be allowed to testify as to that opinion and the basis of that opinion
at the time it was rendered. She will not be allowed to testify as to subsequent research
or information acquired after the time in which she was Plaintiffs medical care provider.
That would shift her opinions from those of a treating physician to that of a retained expert,
and she was not designated as such. Iversen v. Sentinel Ins. Co., 13-CV-237-F, 2014 WL
11498046 (D. Wyo. April 25, 2014); Barack v. Am. Honda Motor Co., 293 F.R.D. 106,
109 (D. Conn 2013). She will be further barred from testify as to Plaintiff’s future
prognosis, except as such opinions can be found within her medical records provided in
discovery. She may testify as to Plaintiff's condition upon her last examination and the
Plaintiff's ability to perform specific functions at the time of the examination and the

doctor’s prognosis at that time. Dr. Cozier’s letter of July 6, 2020 and her affidavit August

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14, 2020 are not part of her actual medical records and as such not part of her designated
testimony. This letter was written long after Dr. Cozier had ceased to be Plaintiff's
medical care provider. The degree upon which retained experts may rely upon the
information in this letter and affidavit will be an issue for the Court to address during trial.

Defendant also objects to Dr. Crozier’s designation to the degree it relies upon
reference to medical records. It is recognized that a treating non-retained medical expert
may not simply rely upon a reference to medical records. Infiesta-Montano v. Cocca
Development Ltd., 2019 WL 7630627 p. 2 (D. Wyo. June 7, 2019). Rule 26(a)(2)(c)
requires that a non-retained expert designation include not just the subject matter, but also
a summary of the facts and opinions of expected testimony. Energy Drilling, LLC v.
Pacific Energy and Mining Co., 2016 WL 3509329 p. 5 (D. Wyo. April 1, 2016). In all
other aspects the designation of Dr. Cozier is more than just a referral to medical records
and complies with Rule 26(a)(2)(C) and provides adequate notice to Defendant as to the
scope of Dr. Crozier’s testimony. Defendant’s motion is granted in part and denied in
part.

Defendant generally objects to all remaining non-retained experts designated.
While such designations are very general in nature, the Court does not choose to strike the
witnesses. These witnesses are primarily fact witnesses regarding Plaintiff's medical care
as documented in the medical records which by all accounts have been provided in
discovery. There should be no surprise to Defendant, and if any such witness is called
and asked concerning topics beyond the medical records, it can be dealt with by timely

objection at trial. Such testimony, on the rare occasions such witnesses are called, will

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not disrupt the trial and no bad faith is detected by the Court. Defendant’s motion is denied
as to remaining witnesses.
6. Duplicate Testimony [Docs, 49, 67 & 87]

Defendant further objects to the duplicative nature of the expert testimony [Doc
49]. Clearly the Court has the discretion to address duplicative testimony. In addition, it
does appear that there is overlap of opinions between the expert doctors. This matter has
been generally resolved as a result of Plaintiff's clarification as to the scope of Dr. Barr’s
testimony. In that Drs. Lobatz and Cozier are testifying in differing roles, their testimony
will not be considered duplicative, even as they testify regarding their observations and
opinions as neurologist. This matter of duplicative testimony is best addressed in the

course of the trial. The Defendant’s motion is denied without prejudice.

IT IS HEREBY ORDERED.
Defendant’s F.R.E./Daubert Motion—Dr. Michael Lobatz [Doc. 43] is Denied;
Defendant’s F.R.E./Daubert Motion—Dr. Alana Crozier [Doc. 44] is Denied;
Defendant’s F.R.E./Daubert Motion—Dr. John Barr [Doc. 45] is Granted;
Defendant’s Motion to Strike Dr. Michael Lobatz’s Improper Rebuttal Testimony [Doc.
46] is Denied;
Defendant’s Motion to Strike Dr. John Barr’s Improper Rebuttal Testimony [Doc. 47] is

Granted;

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Defendant’s Motion to Strike Plaintiff's Rule 26(a)(2)(C) Witnesses (Doc. 48] is
Granted in Part and Denied in Part as to Dr. Crozier and Denied as to all other
witnesses; and

Defendant’s Motion to Strike Duplicative Testimony [Doc. 49] is Denied Without

Prejudice.

Dated this 11th day of September, 2020.

se

MARK L. CARMAN
UNITED STATES MAGISTRATE JUDGE

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