Expert Witness Profiler

Category: Life Care Planning Expert Witness

  • Court rejects Life Care Planning Expert Witness’ testimony concerning future medical expenses for surgical treatment and related care in underinsured motorist bad faith action

    Court rejects Life Care Planning Expert Witness’ testimony concerning future medical expenses for surgical treatment and related care in underinsured motorist bad faith action

    In an underinsured motorist (“UIM”) bad faith action stemming from a car accident, Todd Cope presented at the emergency room after his vehicle was rear-ended on November 6, 2013, citing complaints of occipital headache, pain behind his right eye, and cervical spine pain. Medical records at that time indicated no acute traumatic injuries to the skull, brain, cervical, or thoracic spine. Cope was discharged without medication and advised self-care. Subsequently, a lumbar MRI conducted two months post-accident revealed a disc herniation at L5-S1.

    Before the accident, in March 2011, Cope experienced a back injury from a fall through a flight of stairs. This incident caused low back pain radiating down his extremities. A lumbar spine MRI in May 2011 showed disc bulges at L4-5 and L5-S1. Even two years later, in April 2013, Cope continued treatment for low back and right leg pain attributed to the 2011 fall.

    Within this UIM bad faith action, Todd Cope disclosed several medical providers as non-retained expert witnesses, including Dr. Bryan Castro, his former treating spine surgeon, and Dr. Roberta Anderson-Oeser, his treating physical medicine and rehabilitation physician. Additionally, Cope disclosed Aubrey Corwin as a life care planning “expert” and Brad Levin as an insurance standard-of-care expert. Auto-Owners Insurance Company seeks to exclude opinions they deem improperly disclosed, unsupported, unreliable, or unhelpful.

    Life Care Planning Expert Witness

    Aubrey A. Corwin M.S., L.P.C., C.R.C., C.LC.P.  is a vocational rehabilitation and life care planning expert. She testifies as an expert in cases involving both loss of earning capacity and life care planning nationwide. She is a Licensed Professional Counselor (LPC); a Certified Rehabilitation Counselor (CRC); a Certified Life Care Planner (CLCP); and a former Certified Guidance Counselor. She is past Co-Chair of the Forensic Section of the International Association of Rehabilitation Professionals (IARP) and past Forensic Representative to the IARP International Board of Directors. She is also a member of the American Board of Vocational Experts (ABVE).

    Insurance Law Expert Witness

    Bradley A. Levin focuses his practice on tort and commercial litigation, especially insurance bad faith and insurance coverage disputes. He has significant litigation and trial experience.

    Levin received his undergraduate degree from Stanford University, with distinction, where he was elected Phi Beta Kappa.  He graduated from the University of California, Hastings College of Law, and served as editor-in-chief of the Hastings Constitutional Law Quarterly.

    In addition to teaching legal writing and research at Hastings College of Law, Levin has lectured frequently in the areas of insurance coverage and bad faith law.  He is licensed to practice in California and Colorado.  He is a member of the Denver, Colorado and American Bar Associations.

    Discussion by the Court

    The Defendant sought to prevent Castro and Anderson-Oeser from presenting causation opinions during the trial. Both doctors were non-retained experts who had not submitted formal expert reports. The Defendant argued that their opinions on causation lacked reliability for various reasons. Proving injury causation necessitates demonstrating both general and specific causation. “Specific causation” pertains to whether a particular incident directly caused the specific injury, while “General causation” concerns whether the incident could theoretically lead to the type of injury suffered.

    According to the ruling in Hollander v. Sandoz Pharmaceuticals Corp. (289 F.3d 1193, 10th Cir. 2002), general causation could be established through means like epidemiological evidence. The Court highlighted that an expert was not obligated to reference published studies to reliably conclude that a specific object caused a particular illness.

    In the Defendant’s Motion, it was outlined that based on the Plaintiff’s Rule 26(a)(2) expert disclosures, Castro intended to testify about several key points:

    1. Cope’s persistent back and leg pain, attributing it to a substantial herniation on the right side at L5-S1, asserting it was caused by the November 6, 2013, collision.
    2. Denial that Cope suffered any disc herniation due to a 2011 worker’s compensation fall at any spinal level.
    3. Confirmation that Cope underwent a corrective surgery on May 8, 2014, not for impingement but explicitly linked to the November 6, 2013, crash.
    4. Affirmation that subsequent surgeries, including a revision on November 19, 2015, were deemed necessary and reasonable consequences of the November 6, 2013, collision.
    5. Assertion that Cope’s symptoms preceding the specific collision did not necessitate a subsequent lumbar MRI and that the pain experienced was notably distinct.
    6. Examination and reference to all physical therapy records preceding the collision and all records pertinent to Cope’s 2011 worker’s compensation claim, encompassing impairment ratings and work restrictions.
    7. Expressing the potential for the third herniation to self-heal but highlighting the possibility of future fusion surgery if self-healing doesn’t occur.
    8. Affirmation of the reasonableness of bills for services rendered by Castro.

    The Defendant sought to prevent Castro from expressing opinions on causation related to whether the car accident caused the Plaintiff’s reported injuries or pain, specifically disputing Castro’s assertion that the accident led to the disc herniation or the subsequent lumbar surgeries he performed.

    Initially, the Defendant argued that Castro’s statement didn’t constitute a causation opinion as it didn’t assert that the accident was more likely than not the cause of the Plaintiff’s current symptoms, pointing to a June 02, 2017 statement in Plaintiff’s medical records. The Defendant further contended that Castro’s language was too vague and incomplete to be considered a definitive opinion on causation, especially concerning the surgeries he conducted in 2014 and 2015.

    The Defendant stressed that the medical records by Castro contained no explicit causation opinions, highlighting a supposed violation of Rule 26 disclosure requirements. The Plaintiff, however, argued that any such violation was harmless since the Defendant had elicited opinions from Castro during a deposition in 2018 before the expert disclosure deadline. The Plaintiff also contended that the Defendant’s objection was based on Castro not being paid to document his causation opinions expressed during the 2018 deposition.

    Ultimately, despite Castro discussing causation in his deposition testimony, the Court ruled that his deposition didn’t suffice as an expert report as required by Rule 26. The Court emphasized that even for retained experts who usually submit expert reports, deposition testimony couldn’t substitute for Rule 26’s explicit disclosure requirements. Consequently, the Court decided to preclude Castro from offering causation opinions during the trial.

    The Court emphasized that based on the absence of general or specific causation opinions from Castro, Rule 26(a)(2) doesn’t permit curing deficient expert reports through subsequent deposition testimony. With the accident having occurred over a decade ago and the litigation spanning several years, the Court noted the ample time available for the Plaintiff to disclose an expert report containing Castro’s causation opinions.

    In line with the rule’s requirements, the Court outlined that a treating physician who previously provided a causation opinion during treatment (in compliance with specific standards) without submitting a formal report could only testify to the historical fact that such an opinion was part of the treatment. However, the physician couldn’t testify that this remains their current opinion, emphasizing the need for strict compliance with the Federal Rules. Consequently, the Court granted this part of the Motion, precluding Castro from offering causation opinions during the trial.

    Nevertheless, the Court acknowledged the existence of a statement in Plaintiff’s medical records that could potentially be construed as a causation opinion formed during treatment by Castro. Thus, while barring Castro from presenting this as a current opinion under oath, the Court allowed Plaintiff to present this fact at trial. Castro could testify solely to the historical aspect that this opinion was part of the treatment, adhering to the Court’s directive.

    Given this ruling, the Court instructed the parties to submit proposed instructions for the jury at trial, aiming to clarify in simple terms the distinction drawn by the Court regarding Castro’s testimony about the historical treatment-based opinion versus a current opinion.

    The Defendant requested the Court to prevent Anderson-Oeser from testifying about the necessity of a future spinal fusion resulting from the injuries sustained in the accident. In response, the Plaintiff didn’t address the Defendant’s causation arguments regarding Anderson-Oeser, except to assert that the Defendant hadn’t specified which causation opinions it aimed to exclude, focusing solely on the future surgery opinion. Plaintiff did not argue that any failure to properly disclose Anderson-Oeser’s causation opinions was harmless or substantially justified.

    The Court deemed Plaintiff’s argument disingenuous, emphasizing that the Defendant’s intention was clear—to exclude Anderson-Oeser’s testimony regarding the accident’s role in necessitating future spinal fusion. Similar to Castro, Anderson-Oeser, a non-retained treating physician who hadn’t submitted an expert report, was the subject of this exclusion request. The Defendant highlighted that Anderson-Oeser endorsed a statement in a letter, prepared for litigation and drafted by Corwin’s office staff, stating, “Cope will likely require a lumbar spine fusion at L5-S1 at some point.” The Defendant contended that Anderson-Oeser aimed to testify regarding the future surgery recommendation outlined in Corwin’s report/letter. However, the Defendant argued that this evidence should be excluded as the recommendation in the letter lacked any opinion regarding whether the accident caused the necessity for this future surgery.

    The Plaintiff, however, clarified that Castro’s testimony would focus on the standard of care for third herniations, asserting that the typical practice doesn’t involve a third laminectomy but leans towards spinal fusion. Plaintiff argued that both doctors were qualified to discuss the clinical standards pertaining to the type of surgery and the conditions influencing the decision-making process for surgery, such as pain tolerance and neurological deficits.

    Plaintiff contended that there was no obligation to present expert testimony specifically establishing the probability of future surgery to seek damages for such potential procedures. However, Plaintiff failed to acknowledge that neither Castro nor Anderson-Oeser’s medical records contained any prognosis or explicit recommendations for future surgery. Additionally, Plaintiff didn’t address the concerns raised by the Defendant regarding Rule 26 and Rule 37 compliance.

    Consequently, the Court granted the Defendant’s motion, barring Anderson-Oeser from presenting any causation opinions and from testifying about the necessity of a spinal fusion resulting from the injuries sustained by the Plaintiff in the accident.

    The Court determined that Castro and Anderson-Oeser’s opinions regarding the Plaintiff’s future medical treatment and potential surgery were not derived from their observations, actions, or reasons during their treatment of the Plaintiff. Instead, the Court noted that these opinions seemed to be shaped primarily due to the existence of the lawsuit.

    Given that the opinions sought to be introduced through Castro and Anderson-Oeser concerned potential future treatments and associated medical costs, the Court held that Rule 26(a)(2)(B) necessitated an expert report—which neither physician had prepared.

    Consequently, the Court precluded Castro from testifying on several points: 1) the assertion regarding the standard of care for third herniations favoring spinal fusion over a third laminectomy; 2) opinions about the Plaintiff’s potential future surgery needs based on factors like pain tolerance and future neurological deficits; and 3) any testimony related to clinical standards governing the type of surgery and factors influencing the Plaintiff’s future decisions about surgery, as proposed through Castro and Anderson-Oeser.

    The Defendant had requested the Court to prevent Castro from testifying about the Plaintiff’s pre-accident physical therapy and medical treatments stemming from a 2011 workers’ compensation fall. After deliberation, the Court granted this aspect of the Motion.

    The Court noted that Castro commenced treating the Plaintiff on March 21, 2014—four months subsequent to the accident and three years following the Plaintiff’s fall down a flight of stairs. As Castro hadn’t administered the physical therapy or medical treatment associated with the earlier fall, the Court excluded Castro from offering any testimony regarding those pre-accident treatments.

    The Defendant had sought to exclude Anderson-Oeser’s opinion predicting the necessity of a future spinal fusion resulting from the injuries sustained in the accident. The Defendant reiterated that this opinion, akin to her causation opinion, was inadmissible due to Plaintiff designating her as a non-retained expert without a formal report under Rule 26. The Defendant emphasized that Anderson-Oeser’s opinion pertained not to her direct treatment but rather to potential future treatment for the Plaintiff, which she wouldn’t perform as she wasn’t a surgeon. Additionally, the Defendant argued that Anderson-Oeser’s qualification as a non-spine surgeon rendered her unqualified to opine on hypothetical future lumbar spinal fusion surgeries.

    However, since the Court had previously excluded Anderson-Oeser’s opinions about the Plaintiff’s future spine surgeries and medical treatment, the Court denied this aspect of the Defendant’s Motion as moot.

    The Defendant argued that the Plaintiff hadn’t disclosed any retained expert or report addressing the reasonableness of his medical bills. Instead, Plaintiff’s disclosures indicated the intent to rely on testimony from non-retained treating physicians on this matter. However, the Court excluded the opinions of Plaintiff’s non-retained treating physicians concerning the reasonableness and necessity of his medical bills.

    The Defendant moved to exclude testimony regarding surgery-related treatments in Aubrey Corwin’s May 2021 life care plan, arguing that Corwin failed to reliably apply her stated methodology in forming opinions about the cost of future surgical treatment and related care.

    In response, the Plaintiff acknowledged that introducing expert testimony indicating the need for future surgical care was necessary to seek future surgical costs. However, as the Court had excluded the testimonies of Castro and Anderson-Oeser regarding future surgery, and the Plaintiff hadn’t disclosed any other experts to testify about his future surgical needs, the Court granted the Defendant’s motion. Consequently, the Court excluded Corwin’s opinions regarding future medical expenses for surgical treatment and related care.

    The Defendant moved to exclude attorney Bradley Levin’s opinions, contending that they lacked an objective basis and were solely derived from his experience. In response, the Plaintiff highlighted that Levin’s opinions were rooted in ten insurance industry standards outlined in his report, several of which were based on direct language of the Colorado Unfair Competition-Deceptive Claims Practices Act.

    After reviewing Levin’s report, the Court acknowledged the Defendant’s contention that Levin could have more precisely linked his opinions to the specific standards purportedly violated by the Defendant. However, the Court noted that Levin explicitly stated in his opinion that the Defendant had contravened relevant portions of Colorado’s Unfair Competition-Deceptive Claims Practices Act. Levin also cited Regulation 5-1-14 promulgated by the Colorado Division of Insurance. The Court concluded that while the Defendant’s arguments might challenge the strength of Levin’s opinions, they did not render his opinions inadmissible. As a result, the Court denied the Defendant’s motion, allowing Levin’s opinions to stand, but stated that the Defendant could address these concerns during cross-examination.

    Held

    Defendant Auto-Owners Insurance Company’s Omnibus Motion to Exclude Certain Opinions of Dr. Bryan Castro, Dr. Roberta Anderson-Oeser, Aubrey Corwin and Bradley Levin was granted in part and denied in part by the Court.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaway

    In a legal dispute over an underinsured motorist (“UIM”) claim, various motions were filed by the Defendant seeking to exclude certain expert testimonies and opinions from the trial. The Defendant aimed to preclude causation opinions from non-retained experts, Dr. Bryan Castro and Dr. Roberta Anderson-Oeser, alleging lack of reliability, improper disclosure, and absence of expert reports. Despite some arguments put forth by the Plaintiff, the Court precluded Castro from providing causation opinions, emphasizing the inadequacy of deposition testimony as a substitute for the required expert report under Rule 26.

    The Court highlighted strict adherence to the Federal Rules and barred Castro and Anderson-Oeser from testifying on future surgical needs. This ruling stemmed from their opinions not being formed during treatment but apparently due to the ongoing litigation.

    Additionally, the Court excluded discussions on pre-accident medical treatments and future surgical needs as neither expert had prepared an expert report as mandated by Rule 26. Despite the absence of specific expert reports, the Court allowed some opinions rooted in Colorado law from attorney Bradley Levin, indicating that the Defendant breached certain sections of the Colorado Unfair Competition-Deceptive Claims Practices Act.

    In a similar vein, Aubrey Corwin’s opinions regarding future medical expenses for surgical treatment were excluded due to the lack of supporting expert testimony after the Court had previously precluded discussions on future surgery from other witnesses.

    Overall, the Court enforced strict compliance with expert disclosure rules, precluding opinions lacking proper reports while permitting those supported by established legal standards. The Defendant’s objections and challenges were taken into account, but the Court emphasized the distinction between admissibility and weight of opinions, allowing certain expert testimonies to proceed while offering the opportunity to contest their strength during cross-examination.

  • Court limits the testimony of Life Care Planning Expert Witness citing reliance on the inadmissible opinions of an undisclosed expert

    Court limits the testimony of Life Care Planning Expert Witness citing reliance on the inadmissible opinions of an undisclosed expert

    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.