This case involved a lawsuit filed by Louis Edward Hill against Century Arms, Inc. and Century International Arms, Inc. (collectively “Defendants”) relating to a pistol that allegedly unintentionally discharged when it fell out of its holster, resulting in injury to Hill’s knee.
On November 28, 2017, the Plaintiff purchased a Canik TP9SF Elite model pistol. Subsequently, on February 25, 2019, the Plaintiff sustained injuries when the pistol, housed in a holster, fell, struck the ground, and discharged unintentionally. The Plaintiff asserts that a safety defect rendered the pistol unreasonably dangerous. The Amended Complaint contends that the Defendants, involved in the design, manufacturing, import, marketing, distribution, and sale of the pistol, are responsible. The Plaintiff points to a September 1, 2017, “Product Safety Warning and Severe Duty Upgrade Notice” issued by the Defendants, which was not a recall but a voluntary upgrade. This notice applied to the Plaintiff’s pistol and acknowledged that dropping pistols could damage safety features, leading to unintentional discharge. The Plaintiff alleges negligence, strict liability for manufacturing and design defects, negligence, and strict liability for failure to warn. The complaint also includes allegations related to vicarious liability.
The Plaintiff suffered a knee injury in the accident and sought medical treatment from Dr. Konstantinos Triantafillou, M.D., a board-certified orthopedic surgeon. Following a deposition on September 8, 2022, Triantafillou testified that the likelihood of the Plaintiff requiring a total knee replacement in the future was “more likely than not.” He explained that the significant damage to the joint, characterized by a sizable hole, made it challenging to anticipate anything other than the development of painful arthritis in the future.
The Plaintiff enlisted the services of Robert P. Tremp, a life care expert, to assess future care needs, rehabilitation planning, and the impact of conditions on independent living and vocational development. In Tremp’s First Report finalized on September 26, 2022 (“Tremp’s First Report”) , he estimated the Plaintiff’s future medical expenses at $76,861.50, covering MRIs, X-rays, physical therapy, orthopedic appointments, and a total knee replacement. Notably, Tremp qualified that this list of future medical care was contingent on physician recommendations, except for the total knee replacement, which was based on Triantafillou’s deposition testimony. Tremp arrived at his opinions after reviewing the Plaintiff’s medical records and Triantafillou’s deposition.
On October 25, 2022, Robert P. Tremp asked Triantafillou to fill out a questionnaire on the Plaintiff’s future medical needs. In a report by November 3, 2022, Triantafillou suggested lifelong annual medical visits, no immediate treatments, but potential surgical intervention for post-traumatic arthritis, with joint replacement as a future consideration.
On November 17, 2022, a similar questionnaire was completed, omitting uncertain treatments. Triantafillou noted medical visits as needed for pain, potential surgery for arthritis pending evaluation, and probable but unspecified therapies. They recommended periodic diagnostics, injections, assistive devices, and aids based on symptom aggravation.
On February 9, 2023, the Plaintiff’s expert disclosure deadline expired, and Defendants claim that the Plaintiff disclosed Tremp along with three other experts as witnesses. On September 15, 2023, Defendants deposed Tremp, and during the deposition, the Plaintiff produced Tremp’s expert file, which included a one-page telemedicine Independent Medical Examination (IME) report prepared by William Tontz on March 11, 2023. Tontz recommended annual orthopedic visits for ongoing knee pain, along with annual MRI and CT scans for monitoring. Viscosupplementation was advised biannually. It was reasonably certain that the patient would eventually need a total knee arthroplasty and hardware removal due to persistent pain and post-traumatic arthritis.
In response to questions about any inconsistency between the recommendations of Triantafillou and Tontz, Tremp stated that “Triantafillou didn’t have much feedback in terms of recommendations based on the input he gave.” Defendants assert that, in addition to disclosing the IME with Tontz, Tremp also disclosed his Second Life Care Plan (“Tremp’s Second Report”) on the day of his deposition. Dated July 26, 2023, Tremp’s Second Report, based on Tontz’s recommendations, indicated that the Plaintiff will need orthopedic surgery appointments, viscosupplementation injections for the knee, total knee replacement with hardware removal, MRI of the left knee, and a CT scan of the knee. Tremp explained that he withdrew the September 27, 2022 plan because the 2023 plan replaced it due to new information from the IME with Tontz.
Defendants filed two motions seeking to exclude the evidence relating to Tontz. First, they sought to exclude Tontz as an undisclosed expert witness in violation of Rule 26(a)(2) and exclude his opinions as a sanction pursuant to Rule 37. Second, they sought to exclude Tremp’s testimony relying on Tontz’s opinions.
Life Care Planning Expert Witness
Robert P. Tremp, Jr., M.A., C.R.C., C.L.C.P., holds a Master of Arts degree in Special Education and Rehabilitation, which he earned from the University of Arizona in 2004. Prior to this graduate program, Tremp completed a Bachelor of Arts in Interdisciplinary Studies and Social Science, Human Resources and Society at Michigan State University in 2002. Additionally, in 2004 he finished an internship with the Rehabilitation Services Administration of the Arizona Department of Economic Security. He has obtained professional certifications demonstrating specialization and expertise, including as a Certified Rehabilitation Counselor, Certified Life Care Planner, and Provisional Mental Health Counselor. Presently, Tremp serves as a consultant with the firm Deutsch, Tremp & Tremp, LLC, which has office locations in Arizona, Florida, Michigan and New York.
Orthopaedic Surgery Expert Witness
Dr. William Tontz, Jr., M.D., earned his medical degree from the University of Southern California School of Medicine. Prior to medical school, he obtained an undergraduate Biology degree from the University of California, Irvine. He is board certified by the American Board of Orthopedic Surgery, with specialized training in conditions of the spine. Tontz’s clinical expertise includes spine trauma and reconstruction procedures, minimally invasive cervical and lumbar surgeries, non-operative spine care, and decompression surgeries. He practices as an orthopedic spine surgeon with Coastal Medical Group and Sarasota Orthopedic Institute.
Discussions by the Court
Defendants are seeking to exclude the opinion of Tontz because Plaintiff did not disclose him as an expert witness by the February 9, 2023 deadline. Plaintiff contends that disclosure was unnecessary as he did not plan to call Tontz at trial. Plaintiff also argues that Rule 35 doesn’t mandate a Court order for a party to consult a physician and that Defendants were required to request Tontz’s Independent Medical Examination (IME), which they failed to do.
The Court disagrees with Plaintiff, citing Rule 26(b)(3)(D), which shields consulting experts from discovery unless exceptional circumstances are shown. However, Tontz goes beyond a consulting expert as Rule 26(b)(4) distinguishes between testifying and non-testifying experts. Although Plaintiff asserts he won’t call Tontz at trial, he presents Tontz’s opinions through Tremp. While Plaintiff wasn’t required to seek a Court order for the consultation, the rules necessitate timely disclosure of Tontz’s opinions if intended for trial reliance.
Plaintiff refers to Rule 35, arguing it requires the party seeking an IME to request reports of all earlier or later examinations of the same condition. Since Defendants obtained an IME with Dr. Koenig, Plaintiff contends they were obligated to request the subsequent IME by Tontz, which they failed to do.
The Advisory Committee note on Fed. R. Civ. P. 35(b)(3) clarifies that reports of examining physicians are discoverable under various rules, not solely under Rule 35(b). Plaintiff’s attempt to use Rule 35 as a means to utilize Tontz’s untimely disclosure is deemed impermissible by the Court. Defendants argue that they previously requested this information during discovery, and Plaintiff failed to supplement his responses as required under Rule 26(e).
Given the Court’s finding that Plaintiff was obligated to disclose Tontz by February 9, 2023, and failed to do so, Rule 37 comes into play. Rule 37(c) mandates exclusion unless the harm is substantially justified or harmless. Plaintiff did not argue that the failure to disclose Tontz was harmless or substantially justified, which alone justifies granting Defendants’ motion. The Court considered the circumstances and applied the five factors identified by the Sixth Circuit to assess the party’s failure to disclose, citing the case Howe v. City of Akron, 801 F.3d 718, 747-48 (6th Cir. 2015):
(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non disclosing party’s explanation for its failure to disclose the evidence.
Regarding the first Howe factor, which considers Defendants’ surprise, the Court favors excluding Tontz’s opinions. Plaintiff acknowledged the error in including Tontz as an expert to be deposed but confirmed he would not be called as a witness. Plaintiff’s late disclosure, seven months after the expert deadline, added to Defendants’ surprise.
As for the second factor, Defendants’ ability to cure the surprise, it favors exclusion. With the late disclosure in September 2023 and the trial set for January 2024, Defendants lacked sufficient time for discovery from Tontz.
The third factor, disruption to the trial date, supports exclusion. Plaintiff’s significant delay in disclosing Tontz, seven months after the deadline, would impact the trial set for January 2024.
The fourth factor, the importance of the evidence, slightly weighs against exclusion. While Defendants argue Tontz’s report lacks foundation, Tremp relies on it to form an opinion on Plaintiff’s future medical needs.
The fifth factor, the reason for the late disclosure, supports exclusion. Plaintiff’s failure to explain the delayed disclosure and the argument that he wasn’t required to disclose Tontz are deemed insufficient.
Considering these factors, the Court concludes that Tontz’s opinions should be excluded.
Defendants seek to exclude evidence relying on Tontz’s opinions, including Tremp’s Second Report. Plaintiff argues Rule 703 allows experts to base opinions on inadmissible facts if experts in the field would reasonably rely on them. However, the Court deems this argument irrelevant, emphasizing that the issue is not about an expert relying on others’ work but whether commissioning an undisclosed expert after the expert disclosure deadline is acceptable. The Court notes that obtaining an opinion from an undisclosed expert based on existing evidence post-deadline is considered untimely. Since Tontz’s opinions are inadmissible, Tremp lacks a valid foundation for his opinions in the Second Report.
Plaintiff argues that, even without Tontz’s report, there is enough support from Triantafillou’s deposition for the life care plan’s findings on the need for future surgery and monitoring. Triantafillou, according to Plaintiff, acknowledged the likelihood of post-traumatic arthritis but differed from Tontz in his “hands-off” monitoring approach. Defendants counter that Triantafillou did not suggest knee replacement surgery, and they question the necessity of ongoing monitoring, emphasizing Triantafillou’s stance that it does not significantly impact treatment. Despite the exclusion of Tontz’s opinions, Plaintiff contends there is evidence, such as X-rays and potential knee replacement, supporting the need for limited future monitoring.
Triantafillou acknowledged the potential need for radiographic images and nonsurgical options before considering knee replacement. While he couldn’t assert certainty, he expressed a likelihood of Plaintiff developing arthritis and, more likely than not, needing a knee replacement. Defendants argue that Triantafillou later disavowed certainty, but the Court notes his consistent indication of a greater than 50% probability of future surgical intervention. The Court deems testimony relying on Triantafillou’s opinions for the life care plan admissible, leaving the weight for the jury’s consideration.
Held
The Court has granted Defendants’ Motion to Preclude the Records and Opinions of Plaintiff’s Undisclosed Expert, William L. Tontz, as well as any testimony and opinions relying on those records and opinions. Additionally, the Court has granted in part and denied in part Defendants’ Motion to Exclude the Testimony of Plaintiff’s Expert, Robert P. Tremp, and the supporting memorandum of law. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
This case demonstrates the importance of disclosing expert witnesses by the Court-ordered deadline. Here, the Plaintiff retained Tontz to provide an expert opinion on future medical treatment but failed to disclose Tontz by the February 2023 deadline. The late disclosure in September 2023 was prejudicial to the Defendants, who faced surprise expert opinions without time to obtain responsive testimony before the January 2024 trial.
The Court excluded Tontz as an undisclosed expert witness, finding the late disclosure was neither substantially justified nor harmless. This automatic sanction under Rule 37 highlights the need to timely disclose retained experts. An expert report cannot be snuck in as a “consulting” expert exempt from disclosure if that expert’s opinions will be presented at trial.
Additionally, unrelated expert witnesses cannot bolster their opinions by relying on an excluded expert’s inadmissible opinions. Here, once Tontz’s opinions were excluded, the Court precluded the Plaintiff’s life care planning expert from offering a supplemental report based solely on Tontz’s excluded findings.
In sum, parties must timely disclose all retained experts expected to provide opinions at trial, and no party can utilize an excluded expert’s opinions to support another testifying expert. Carefully following expert disclosure requirements remains critical to avoiding preclusion of evidence and testimony.
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