United States District Court, E.D. Tennessee, Knoxville
BRIAN B. DEVEREUX and RENEE DEVEREUX, Plaintiffs,
KNOX COUNTY, TENNESSEE, PAUL MOBLEY, SHAKER NASSER, HANNA FRYE, and GREG MOORE, Defendants.
MEMORANDUM OPINION AND ORDER
RONNIE GREER, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Objections and
Renewed Motion to Strike and Exclude Dr. Gaines' Expert
Opinions [Doc. 99], Chief United States Magistrate Judge H.
Bruce Guyton's Report and Recommendation [Doc. 127],
Plaintiffs' Objections to the Report and Recommendation
[Doc. 130], and Defendants' Response to Plaintiffs'
Objections to Report and Recommendation [Doc. 131]. For the
reasons herein, the Court will overrule Plaintiffs'
objections and grant Defendants' motion.
15, 2018, Plaintiffs served their disclosure of expert
testimony under Federal Rule of Civil Procedure 26(a)(2),
listing various medical providers, including Dr. Gaines.
[Pls.' Expert Disclosure, Doc. 67-5, at 5].
Plaintiffs' disclosure as to Dr. Gaines states:
Dr. Gaines is Mr. Devereaux's [sic] treating neurologist.
Dr. Gaines has not been retained or specifically employed to
provide expert testimony in this case. However, Dr. Gaines is
expected to present evidence under Federal Rule of Evidence
702, 703, or 705 concerning the identity, history, nature,
scope, treatment, and prognosis of Plaintiff's
neurological disorders stemming from the stroke and events
giving rise to this action. The facts and opinions to which
Dr. Gaines is expected to testify include diagnosis, cause,
and treatment, as well as the opinions of other health care
providers with which he consulted.
[Id. at 5]. After receiving Plaintiffs'
disclosure, Defendants moved to exclude Dr. Gaines from
testifying as an expert, contending that the disclosure
violated Rule 26(a)(2)(B). [Defs.' Mot. Exclude, Doc.
67]. On November 13, 2018, Judge Guyton determined that the
disclosure-as it pertained to Dr. Gaines-was “wholly
inadequate” under Rule 26(a)(2)(B) because it
“fail[ed] to include any summary of facts and opinions
and simply constitutes a statement of the topics.” [J.
Guyton's Mem. Op., Doc. 91, at 10-11]. Judge Guyton,
however, concluded that Plaintiffs' transgressions under
Rule 26(a)(2)(B) were harmless, and he therefore declined to
exclude Dr. Gaines's testimony and allowed Plaintiffs to
take corrective action by filing a supplemental disclosure
containing the information that was missing under Rule
26(a)(2)(B). [Id. at 15].
days later, Plaintiffs filed their supplemental disclosure,
which consisted of a declaration from Dr. Gaines; a copy of
Dr. Gaines' curriculum vitae, which includes a list of
his publications; a list of all other cases in which Dr.
Gaines participated as an expert witness; and a statement of
compensation. [Pls.' Suppl. Disclosure, Doc. 92, at 1].
In the declaration, Dr. Gaines states:
I was asked to evaluate Brian Devereaux [sic] as a treating
and evaluating physician in my Vanderbilt Clinic Office on
September 2, 2016 with subsequent visits on November 11,
2016, January 13, 2017, May 5, 2017, September 15, 2017, and
February 9, 2018. . . . My notes from those visits as well as
the autonomic and neuropsychological evaluations performed
under my direction in addition to his records from the
University of Tennessee Hospital and his Primary Care
Physician are the source documents that I have reviewed and
relied upon in providing my opinions in this case which are
offered to a reasonable degree of medical certainty.
. . . .
The initial history was obtained from the patient and his
wife and extensive medical records were reviewed. They
reported an incarceration for June 3, 2016 at the Knox County
Jail in Knoxville. Early in that incarceration he suffered a
major neurological change with decrease in level of
consciousness. It was not until some 5 hours later that he
was taken to the University of Tennessee Hospital in
Knoxville. Initially it was unclear the nature of his
diagnosis. He was subsequently found to have a cerebral
infarction. Upon review of his radiological studies it was
clear that he had in fact suffered a brainstem and cerebellar
. . . .
It is my opinion to a reasonable degree of medical certainty
that Mr. Devereux suffered a cerebral infarction while
incarcerated in Knox County jail in Knoxville at
approximately 1700 on June 3, 2016. Because of the failure of
personnel at that jail facility to recognize his stroke
symptoms, he was not transported in a timely manner that
would have allowed him the opportunity to receive appropriate
therapy such as tissue plasminogen activator.
[Dr. Gaines' Decl., Doc. 92-1, ¶¶ 4, 6, 7].
maintained that Dr. Gaines' supplemental
disclosure-namely, Dr. Gaines' declaration-was
insufficient under Rule 26(a)(2)(B). See [Order,
Doc. 94]. Judge Guyton however, rejected their argument,
determining that “Dr. Gaines's disclosure is
sufficient under Rule 26(a)(2)(B).” [Id.].
Defendants then objected to Judge Guyton's decision and
renewed their motion to exclude Dr. Gaines' testimony.
[Defs.' Objs. & Renewed Mot., Doc. 99]. In raising
their objections, Defendants argued that “Plaintiffs
should have been required to comply with Rule
26(a)(2)(B)(i)-(iii)” in light of Judge Guyton's
“earlier . . . conclu[sion] that Dr. Gaines'
Declaration was . . . . insufficient.” [Id. at
12]. To support this argument, Defendants claimed that
Plaintiffs did not show that their violation of Rule
26(a)(2)(B) was harmless. [Id. at 8-13].
their renewed motion, Defendants contended that Dr.
Gaines' supplemental disclosure violated Rule
26(a)(2)(B)(ii)-(iii) because Dr. Gaines, during his
deposition, revealed for the first time that he had relied on
a CT scan to form his opinion that Mr. Devereux suffered a
stroke on June 3, 2016, at 1700 hours, while incarcerated in
the Knox County Jail. [Id. at 9-10]; see
[Dr. Gaines' Dep., Doc. 100-1, at 21:14-22]. According to
Defendants, the absence of any mention of the CT scan in Dr.
Gaines' declaration renders it deficient under Rule
26(a)(2)(B)(ii)- (iii). [Defs.' Objs. & Renewed Mot.
Court sustained Defendants' objections to Judge
Guyton's memorandum opinion and order from November 13,
2018, finding clear error because Plaintiffs had not been
held to their burden to show that their violation of Rule
26(a)(2)(B) was harmless. [Mem. Op. & Order, Doc. 120, at
4-7]. The Court did not address the propriety of Judge
Guyton's determination that Plaintiffs' initial
disclosure was insufficient under Rule 26(a)(2)(B). Instead,
the Court, based on Judge Guyton's conclusion that the
disclosure was insufficient, sustained Defendants'
objections because Plaintiffs had been permitted to
supplement the disclosure without first making a proper
showing of harmlessness under Federal Rule of Civil Procedure
37(c)(1). [Id.]. The Court then referred
Defendants' renewed motion to Judge Guyton for a report
and recommendation. [Id. at 7].
considering Defendants' renewed motion, Judge Guyton
concluded that Dr. Gaines' supplemental disclosure was
insufficient under Rule 26(a)(2)(B)(i)-(iii). [R. & R.,
Doc. 127, at 18]. He reasoned that Dr. Gaines did not
adequately express the “basis and reasons for [his]
opinion” that Mr. Devereux suffered a stroke on June 3,
2016, at 1700 hours, while in the Knox County Jail.
[Id. at 18-19]. Also, Judge Guyton declined to view
Dr. Gaines' insufficient supplemental disclosure as
harmless because Plaintiffs-as the party with the burden to
show harmlessness-never responded to Defendants' renewed
motion. [Id. at 19]. In sum, he recommended that
this Court, in response to Plaintiffs' violation of Rule
26(a)(2)(B), grant Defendants' renewed motion and exclude