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Devereux v. Knox County

United States District Court, E.D. Tennessee, Knoxville

September 11, 2019

BRIAN B. DEVEREUX and RENEE DEVEREUX, Plaintiffs,
v.
KNOX COUNTY, TENNESSEE, PAUL MOBLEY, SHAKER NASSER, HANNA FRYE, and GREG MOORE, Defendants.

          MEMORANDUM OPINION AND ORDER

          J. RONNIE GREER, UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         On May 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].

         A few 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 infarction.
. . . .
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].

         Defendants 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].

         As for 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. at 12].

         This 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].

         In 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 ...


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