Plaintiff Deana Hosie alleges that, on November 17, 2017, while dining at the Defendant Omni Hotels Management Corporation’s hotel restaurant, she tripped and fell over a box-shaped object on the floor, causing her serious injuries.
After disclosing expert Charles DePaolo, M.D., the Defendant indicated that DePaolo would not provide a report until “after his forthcoming independent medical examination of the Plaintiff.”
The Plaintiff declined the Defendant’s request to undergo an independent medical examination.
On June 13, 2024, the Plaintiff filed the present motion, seeking to exclude the expert testimony of DePaolo.
Orthopedic Sports Medicine Expert Witness
Charles DePaolo, MD, is a board-certified orthopedic surgeon and sports medicine physician who specializes in joint reconstructive surgery, direct anterior approach total hip arthroplasty, arthroscopic rotator cuff repair, cartilage preservation procedures, osteochondral transfer procedures and the use of platelet rich plasma (PRP) and stem cells. His goal is to relieve pain and return function to his patients’ everyday life.
Discussion by the Court
The Defendant retained DePaolo to offer testimony regarding the “Plaintiff’s past, present, and future medical condition, including . . . whether such pain or limitation is connected to the injuries” the Plaintiff suffered in this case.
When the deadline passed on January 8, 2024, no report was forthcoming. Since the Rule 26 requirements were not met, the Court decided to exclude the testimony of DePaolo unless the Defendant could show that the failure to produce a report was substantially justified or harmless.
Plaintiff did not provide an expert report for the Defendant to respond to
First, the Defendant argued that its nondisclosure was substantially justified because the Plaintiff did not provide an expert report for the Defendant to respond to. A party, however, need not file an expert report for a treating physician. Here, the Plaintiff disclosed that her treating physician would testify at trial. The Court held that the Plaintiff did not need to disclose an expert report, and the Defendant was not substantially justified in failing to disclose its own expert report.
DePaolo needed to conduct a medical examination of the Plaintiff
Second, the Defendant asserts that its nondisclosure was substantially justified because DePaolo needed to conduct a medical examination of the Plaintiff, arguing that a review of the Plaintiff’s medical records “did not provide a sufficient basis for him to serve a report that would satisfy Rule 26(a)(2)(C).” In his Order denying the Defendant’s motion to compel an independent medical examination, the Magistrate Judge emphasized the Defendant’s failure to (1) timely and adequately pursue the Plaintiff’s medical records; (2) provide an expert report from DePaolo; (3) seek an extension of its deadline to disclose DePaolo’s report; and (4) move to compel an independent medical examination until March 1, 2024, nearly two months after the Defendant’s expert disclosure deadline. Further, since the Magistrate Judge entered his order denying the Defendant’s motion to compel in April, the Defendant has not supplemented or corrected its initial expert disclosure.
The Court held that the Defendant’s failure to disclose a report from DePaolo is not substantially justified due to the lack of an independent medical examination.
Court can “cure” any surprise caused by the Defendant’s failure to provide a report
The Defendant argued that allowing DePaolo to testify would be harmless to the Plaintiff.
The Defendant claimed that the Court can “cure” any surprise caused by the Defendant’s failure to provide a report by permitting DePaolo to listen to and “rebut” the Plaintiff’s treating physician’s trial testimony, then briefly pausing the trial to allow the Plaintiff time to formulate a cross examination.
The Court held that the Defendant’s proposal would minimize the Plaintiff’s opportunity to “adequately prepare” for DePaolo’s testimony, leaving the Plaintiff surprised and unequipped to conduct a sufficient cross-examination. This would not be harmless to the Plaintiff; it would disrupt the trial and unfairly surprise the Plaintiff without providing a sufficient cure.
Finally, the Defendant argued it is important for DePaolo to testify to give the jury “a more complete understanding of the Plaintiff’s injuries” and for the Defendant to “more fairly defend itself against the Plaintiff’s claim for significant damages.” The Court held that this is precisely the kind of information that DePaolo could have and should have rebutted in an expert report. The Defendant has had the Plaintiff’s medical records and has known of the Plaintiff’s claims for damages for some time. The fact that the Defendant has failed to provide a timely rebuttal to the Plaintiff’s evidence does not justify an ambush of the Plaintiff’s treating physician at trial.
Held
The Court granted the Plaintiff’s motion to exclude the expert testimony of Charles DePaolo.
Key Takeaway:
The Court held that the Defendant’s failure to provide a report from its expert is not substantially justified. Furthermore, disrupting the trial to formulate an expert opinion on the fly—without giving the Plaintiff time to analyze the expert’s opinion, depose the expert, and prepare a cross examination—would not be harmless.
Case Details:
| Case Caption: | Hosie V. Omni Hotels Management Corporation |
| Docket Number: | 1:22cv265 |
| Court: | United States District Court for the Western District of North Carolina, Asheville Division |
| Order Date: | October 4, 2024 |
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