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Tag: Negligent

  • Palliative Care Expert’s New and Expanded Opinions on Facility Neglect Admitted

    Palliative Care Expert’s New and Expanded Opinions on Facility Neglect Admitted

    Plaintiffs are the estates of three decedents, Robert W. Petersen (“Mr. Petersen”), Mary Ann Simons, (“Ms. Simons”) and Charlotte Elaine Guilford (“Ms. Guilford”) (collectively, “Plaintiffs”). Plaintiffs were residents of Canyon Creek, an assisted living facility in Billings, Montana specializing in memory care, during the height of the COVID-19 pandemic in 2020. Plaintiffs alleged that Canyon Creek was negligent in the care of Mr. Petersen, Ms. Simons, and Ms. Guilford and that its negligent care caused their deaths.

    Defendants Koelsch Senior Communities, LLC (“Koelsch”), and Billings Partners, LLC d/b/a Canyon Creek (“Canyon Creek”) filed a motion in limine to exclude the Plaintiffs’ expert Scott Bolhack, M.D.’s undisclosed expert opinions and limit his testimony to only what was timely disclosed in his expert disclosure.

    Palliative Care Expert Witness

    Scott Matthew Bolhack, M.D. is board certified in internal medicine and hospice and palliative medicine with additional credentials as a Certified Wound Specialist Physician and a Certified Medical Director in long-term care. He has experience as a medical director for skilled nursing homes, assisted living facilities, hospices, home health agencies and wound centers. He has spoken on many topics nationally and has presented over 35 scientific posters in the areas of wound care, quality improvement, and post-hospital care.

    Want to know more about the challenges Scott Bolhack has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Defendants first sought to exclude three categories of material Bolhack relied on in forming his opinions, but did not disclose until his deposition. Those categories include: (1) documents available to Plaintiffs before the expert disclosure deadline but not provided to Bolhack until one week before his deposition; (2) documents available to Plaintiffs after the expert disclosure deadline but not provided to Bolhack until one week before his deposition; and (3) documents available to Bolhack before the expert disclosure deadline but only relied on after receiving the additional documents from Plaintiffs’ counsel one week before his deposition.

    Defendants next sought to exclude Bolhack from relying on the new opinions found in his Deposition Notes, which were provided to Defendants for the first time at his deposition.

    A. Federal Rule of Civil Procedure 26

    1. Documents Available to Plaintiffs Before the Expert Disclosure Deadline but not Provided to Bolhack Until One Week Before his Deposition

    All material in the first category, except for one employee declaration, was available to the parties before the expert disclosure deadline.

    Yet, Plaintiffs did not provide the material to Bolhack until approximately one week before his deposition. This means Bolhack received the material almost three months after his initial disclosure and one month after the close of discovery.

    Here, the Court found no reason justifying Plaintiffs’ decision to withhold the first category of material from Bolhack when that material was available before the expert disclosure deadline. Because Bolhack ultimately relied on the material to form his opinions, Plaintiffs failed to timely and adequately disclose under Rule 26(a).

    2. Documents Available to Plaintiffs After the Expert Disclosure Deadline but not Provided to Bolhack Until One Week Before his Deposition

    Here, the parties learned of the material in this second category after the initial disclosure deadline.

    Therefore, Plaintiffs duty to supplement arose under Rule 26(e) when they learned that Bolhack’s Initial Disclosure was either incomplete or incorrect based on the new information. Plaintiffs’ contention that they “need not supplement when information [was] made known in the discovery process” has no merit here because the information in this second category exceeds the scope of Rule 26(e), that is—”correcting inaccuracies or filling the interstices of an incomplete report.”

    As the Court has discussed, Bolhack used this second category of material to revise, add to, and create new opinions. Even if Plaintiffs are now conceding the Initial Disclosure was inaccurate or incomplete, they have failed to show what part of the Initial Disclosure needed to be corrected or filled in. As such, the Court found that the additional material in this category was not a proper supplementation as allowed under Rule 26(e)(1).

    3. Documents Available to Bolhack Before the Expert Disclosure Deadline but Only Relied on After Receiving the Additional Documents from Plaintiff’s’ Counsel One Week Before his Deposition

    The final category of material Defendants sought to exclude consisted of governmental regulations and medical literature Bolhack admitted to reviewing only after he received and reviewed the preceding two categories of material.

    The scientific articles were published between 1993 and 2022, and the governmental regulations were both publicly available and long-standing. Therefore, they would have been available for review before the expert disclosure deadline.

    Again, Bolhack did not disclose these regulations or articles in his Initial Disclosure and therefore they were untimely disclosed under Rule 26(a). And unless Plaintiffs now concede Bolhack’s Initial Disclosure was inaccurate or incomplete, the introduction of this new material was not proper supplementation as contemplated by Rule 26(e).

    4. Bolhack’s Deposition Notes and Opinions

    After receiving and reviewing the three categories of undisclosed material, Bolhack compiled his Deposition Notes. As a result, his Notes—by his own admission—contain “a host of opinions” not found in his Initial Disclosure.

    Bolhack’s new and expanded opinions pertain to causation of death, facility neglect and causality, expanded event timelines, COVID-19 response, pressure wound management and nutritional declines, hospice care initiation, and detailed rebuttal of other experts’ testimony.

    For example, as to causation and neglect, the Deposition Notes surpass the summary-level conclusions initially disclosed. At first, Bolhack detailed causation opinions regarding all three decedents, with references to multiple contributing factors beyond the primary disease listed on each death certificate, but with no specific references to Canyon Creek’s standard of care breach. By contrast, the Deposition Notes include more detailed and pointed attributions of death and decline to Canyon Creek’s failure in monitoring, intervention, and institutional processes, including explicit citations to regulatory standards.

    Likewise, Bolhack’s Notes introduced new criticisms of Canyon Creek’s pandemic response. His new opinions connect pandemic failures to patient outcomes in ways that were largely absent from his Initial Disclosure.

    Finally, unlike his Initial Disclosure, Bolhack’s Notes challenged opposing expert testimony with new opinions, stating he was not confident their COVID-19 severity assessment was correct, and critically questions whether appropriate processes were in place. His detailed critiques of the testimony and opinions of opposing experts, referencing both factual disagreements and regulatory mandates, are absent from the Initial Disclosure.

    It is obvious—by Bolhack’s own admission and after review of the two reports—that the Deposition Notes are different from, rather than supplemental to, the opinions contained in his Initial Disclosure.

    B. Federal Rule of Civil Procedure 37

    1. Substantially Justified and Harmless

    Plaintiffs first attempted to justify Bolhack’s late disclosure by claiming they complied with Defendants’ subpoena after the parties agreed expert notes were not discoverable.

    Plaintiffs further argued that the late disclosure was harmless because Defendants have now known about Bolhack’s opinions for over a year, declined to follow up, and never tried to re-open the deposition or supplement their own experts’ reports.

    The Court found that the late disclosure was neither substantially justified nor harmless. Initially, the late disclosure deprived Defendants of a meaningful opportunity to prepare for, examine, and respond to Bolhack’s new opinions at his deposition. True, Plaintiffs complied with Defendants’ subpoena. However, had Defendants not subpoenaed Bolhack, they may not have learned about the new materials Bolhack relied on or his new opinions until trial.

    The record showed the additional material Bolhack relied on was largely available before the disclosure deadline. Plaintiffs offered no reason why it was not provided to Bolhack before his Initial Disclosure, and therefore, the late disclosure of the documents and Bolhack’s new opinions was not justified.

    The Court next rejected Plaintiffs’ contentions that Defendants “sat on their hands” in bringing the instant motion. The procedural record reflected Defendants’ timely pursuit of relief consistent with the Court’s directive regarding the timing of motions in limine.

    2. Sanctions

    Here, Plaintiffs’ inadequate disclosure was neither substantially justified nor harmless. However, the Court ultimately concluded that the risk of any prejudice to Defendants at trial is mitigated by two factors. First, despite Plaintiffs’ procedural infraction, Defendants have had adequate time to prepare for trial since they learned of Bolhack’s late disclosure 14 months ago. Second, expert testimony is essential to litigating the parties’ case; as such, there are less drastic sanctions available than striking portions of Bolhack’s opinions.

    The jury should be allowed to weigh the entirety of Plaintiffs’ experts’ opinions.

    Therefore, the Court elected to impose the lesser sanction of allowing Plaintiffs to file Bolhack’s supplemental expert report and allowing Defendants to reopen Bolhack’s deposition. The parties may conduct this deposition by Zoom or other remote means, and Plaintiffs shall bear the reasonable costs of conducting this deposition.

    Held

    The Court denied Defendants’ motion in limine to exclude the Plaintiffs’ expert Scott Bolhack, M.D.’s undisclosed expert opinions and limit his testimony to only what was timely disclosed in his expert disclosure.

    Key Takeaway:

    Sanctions which interfere with the litigants’ claim or defenses violate due process when they are imposed merely for punishment of an infraction that did not threaten to interfere with the rightful decision of the case.

    Case Details:

    Case Caption: Estate Of Robert W. Petersen Et Al V. Koelsch Senior Communities LLC
    Docket Number: 1:22cv11
    Court Name: United States District Court, Montana
    Order Date: November 13, 2025
  • Court Rejects Accident Reconstruction Expert Witness’ Attempt to Springboard OSHA Regulations Outside of the Work Environment

    Court Rejects Accident Reconstruction Expert Witness’ Attempt to Springboard OSHA Regulations Outside of the Work Environment

    On September 19th, 2021, Co-Plaintiff Cándida Cabrera visited the restaurant called Romano’s Macaroni Grill, located at Las Catalinas Mall in Caguas, Puerto Rico. At a certain point, Co-Plaintiff Cándida Cabrera was in the process of exiting the seating booth, and one of her feet slightly tripped on one of the spikes under the table. Given the elevation of the surface (step), Cabrera fell off the booth as she was trying to step outside, suffering the grave damages alleged in this complaint.

    Plaintiffs Cándida Cabrera Escobar and her husband Osvaldo Cabrera sought to recover damages for the alleged negligence of Co-Defendants International Restaurant Services, Inc., owner and operator of a franchise which runs “Romano’s Macaroni Grill,” and its insurer, American International Insurance Company of Puerto Rico.

    Defendants filed a motion in limine to preclude the testimony of Plaintiffs’ expert, engineer Otto González Blanco. 

    In their motion in limine to exclude Plaintiffs’ expert, Defendants argued that González’s testimony should be excluded because he did not base his opinion or testimony in appropriate scientific data, facts, or analysis and further that he did not review or consider all the evidence available in the case.

    Accident Reconstruction Expert Witness

    Otto González Blanco received training in accident reconstruction for fall and traffic accidents and has served as an expert in hundreds of fall cases. He has been working as an engineer since 1977. From 2008 to 2012, he enrolled in the Public Safety Program at University of North Florida, Jacksonville to become an expert in the field of accident reconstruction.

    Get the full story on challenges to Otto González Blanco’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Defendants sought to exclude González’s testimony pursuant to Federal Rules of Evidence 702 and 703, as well as pursuant to Daubert and its progeny, on grounds that it is speculative, unreliable, and insufficiently grounded in appropriate scientific data, facts, or analyses. Defendants discussed González’s failure to review all the evidence of record, including architect Arch. Otheguy report and statement under penalty of perjury, as well as Cabrera’s deposition testimony. Specifically, Defendants argued that González’s opinions are based on “speculation and conjecture” because he did not review the aforementioned information. 

    Knowledge of the circumstances of the fall is relevant to González’s ability to offer his expert opinion

    Defendants’ claim that González has “no knowledge of how the accident occurred according to Plaintiff Cabrera” because González did not read her deposition testimony, though relevant for vigorous cross examination, is not in and of itself sufficient to strike him as an expert.

    The Court held that the knowledge of Cabrera’s account of how she fell can come from more than one source, although González should have clearly spelled out the source in his report or deposition testimony.

    González’s unawareness or, at a minimum, lack of specificity in his report as to which foot of Cabrera got tangled with the table and where exactly her other foot landed leaves much to be desired for purposes of an accident reconstructionist. The Court held that it was not until González submitted a statement under penalty of perjury in support of an opposition to a motion for summary judgment that the details of the fall seemed to perfectly align with the details of Cabrera’s deposition testimony.

    Nevertheless, in writing his report, it is clear that González was made aware of certain facts, data, and allegations in the case. Further, Eng. González visited the restaurant facilities personally on September 22, 2023, to take measurements and observe the scene of the accident.

    Therefore, the Court refused to exclude González’s expert opinion on foundational grounds.

    González need not have discussed every claim in Plaintiffs’ complaint in order to testify as to how the accident occurred

    Defendants also argued that González has “no experience or training in the design of restaurant interiors,” and while he was involved in structural and site design of restaurants in the past, he has not “taken part in any such designs during the last fifteen (15) years.” The Court held that González’s educational background and professional experience qualify him to render an opinion in this case as an accident reconstructionist.

    Defendants also argued that González’s report did not address every claim in Plaintiffs’ complaint; specifically, his report did not state “any opinion relative to the platform and/or the height of the same; the recessed lighting and/or lack of adequate warnings” and whether “these factored into Cabrera’s fall.”

    The Court held that González does discuss both the platform height and the lack of warnings of the height in his report. It is true that González did not address Plaintiffs’ claim as to dimmed or recessed lighting; however, González need not have discussed every claim in Plaintiffs’ complaint in order to testify as to how the accident occurred.

    González points to no codes, regulations or restaurant industry standards to support his report conclusions

    González points to no codes, regulations or restaurant industry standards to support his report conclusions that tripod style tables are unacceptable for restaurant booths, that post square table bases should be used instead, and that platforms where booths rest must rise at least 4 inches from the floor. He also invoked OSHA safety standards which are applicable to workers, not guests such as Cabrera.

    The only hint left of scientific reliability to a standard is González’s references in his report to two American National Standards Institute (ANSI)  codes to justify the placement of a tape on a platform’s edge, the existence of which Cabrera admitted in her deposition she was aware as she stepped into the booth without any difficulties. However, as previously discussed, despite given multiple opportunities to explain whether, why or how those codes made the absence of a visual marking on the booth platform’s edge an unreasonably dangerous condition for guests at Romano’s Macaroni Grill, at his deposition González insisted that he did not come to testify about deviations from codes and regulations, but instead about deviations from the original design.

    There is a clear contradiction between González’s deposition testimony and the statement under penalty of perjury submitted to defeat Defendants’ motion for summary judgment

    In support of Plaintiffs’ opposition to Defendants’ motion for summary judgment, however, González sings a different tune from the one heard at the deposition and now suddenly feels compelled to make statements in his statement under penalty of perjury about deviations from codes and regulations.

    Basically, there is a clear contradiction between González’s deposition testimony and the statement under penalty of perjury submitted to defeat Defendants’ motion for summary judgment. In the statement under penalty of perjury, González opined that the ANSI code was a standard “that was violated by the restaurant.” However, as previously explained in detail, González’s prior deposition testimony strayed far away from ANSI regulations or standards. This is in stark contrast to his statement under penalty of perjury, where he makes it clear that Defendants violated the ANSI standard.

    Second, Defendants objected to several of González’s statements under penalty of perjury as they contain new information not included in his expert report or deposition. In his expert report, González does not specify or discuss the specifics of Cabrera’s fall but in his statement under penalty of perjury, González specifies exactly how Cabrera fell.

    Therefore, if while under oath at his deposition González adopted his report as containing the entirety of his opinions, and his report he says that “her feet” (in plural) slightly tripped on one of the spikes under the table, he cannot now say that Cabrera’s right foot (in singular) got tangled with one of the spikes.

    Analysis

    The Court held that González does not cite any standards as to the type of table to be used or the required height of the platform where the booth rests. His attempt to springboard OSHA regulations outside of the work environment and impose them on restaurant guests is not admissible, particularly as there is not even evidence on the record that waiters at Romano’s Macaroni Grill actually go in and out of restaurant booths to do their jobs (as opposed to simply standing in front of the booth to take an order).

    He was unable to answer with specificity questions at his deposition about the ANSI codes cited in his report and the OSHA standards. His assertions regarding said standards in his statement under penalty of perjury issued post deposition have been stricken. González cannot testify about recessed lighting because he is completely silent about that topic in his expert report.

    Moreover, he – who has been retained as an accident reconstructionist – will not be able to even say what Cabrera has said under oath, namely that it was her right foot, not both of her feet, which allegedly got tangled with a leg of the table. Under these circumstances, it cannot be said that González’s conclusions were made “in a scientifically sound and methodologically reliable fashion.”

    Held

    The Court granted Defendants’ motion in limine to strike Otto González Blanco’s testimony.

    Key Takeaway:

    • González’s attempt to springboard OSHA regulations outside of the work environment and impose them on restaurant guests is not admissible, particularly as there is not even evidence on the record that waiters at Romano’s Macaroni Grill actually go in and out of restaurant booths to do their jobs (as opposed to simply standing in front of the booth to take an order). 
    • González points to no codes, regulations or restaurant industry standards to support his report conclusions that tripod style tables are unacceptable for restaurant booths, that post square table bases should be used instead, and that platforms where booths rest must rise at least 4 inches from the floor.

    Case Details:

    Case Caption: Cabrera Et Al V. International Restaurant Services, Inc. Et Al
    Docket Number: 3:22cv1449
    Court: United States District Court, Puerto Rico
    Order Date: November 27, 2024