United States District Court, M.D. Tennessee, Nashville Division
ALVIN GALUTEN, on behalf of the ESTATE OF HORTENSE GALUTEN, Plaintiff,
WILLIAMSON COUNTY HOSPITAL DISTRICT d/b/a WILLIAMSON MEDICAL CENTER, Defendant.
RICHARDSON, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Williamson County Hospital
District's Motion to Dismiss Plaintiff's Amended
Complaint (Doc. No. 80). Alternatively, Defendant asks the
Court to preclude Plaintiff from disclosing any expert
witness or presenting any expert testimony at trial.
Plaintiff has filed a Response (Doc. No. 82), and Defendant
has filed a Reply (Doc. No. 83).
who is the son and court-appointed executor of the estate of
Hortense Galuten, deceased, filed this action pursuant to the
Emergency Medical Treatment and Active Labor Act
(“EMTALA”) against Williamson Medical Center
(“WMC”) and others,  alleging (among other
things) that WMC failed adequately to screen Ms.
Galuten's emergency medical condition and discharged her
in an unstable medical condition; failed to provide
appropriate medical care to her; failed to send her medical
records with her in the ambulance to the rehabilitation
facility; diverted a non-hospital-owned ambulance away from
returning Ms. Galuten to WMC for emergency medical care; and
failed to timely and adequately transfer her in a stable
condition to another hospital with capability to provide
appropriate care for her life-threatening condition.
Initial Case Management Order (Doc. No. 40) in this case
required that disclosures of the identity of Plaintiff's
expert witnesses, and disclosure of their expert reports, be
completed on or before July 31, 2019. On July 31, 2019,
Plaintiff filed a motion for extension of time to disclose
expert opinions and expert reports. (Doc. No. 77). The
Magistrate Judge granted Plaintiff's motion in part and
allowed Plaintiff until August 6, 2019, at noon, to provide
expert disclosure and reports. (Doc. No. 79). WMC contends
that Plaintiff has failed to comply with that Order.
According to WMC's motion, Plaintiff has yet to provide
expert disclosures or reports. (Doc. No. 80).
asks the Court to dismiss this action pursuant to
Fed.R.Civ.P. 37 and 41 for Plaintiff's failure to
cooperate in discovery. In response, Plaintiff concedes that
his failure to disclose expert witnesses and reports
precludes him from introducing any expert witness testimony
in this case (Doc. No. 82), but he argues that dismissal is
the discovery sanctions rule, a district court may sanction
parties who fail to comply with its orders in a variety of
ways, including dismissal of the lawsuit. Mager v.
Wisconsin Central Ltd., 924 F.3d 831, 837 (6th Cir.
2019). Four factors are to be considered in determining
whether dismissal is an appropriate sanction for failure to
comply with a discovery order: (1) whether the party's
failure to willful, in bad faith, or due to fault; (2)
whether the adversary was prejudiced by the conduct; (3)
whether the offending party was warned that failure to
cooperate could lead to dismissal; and (4) whether less
drastic sanctions exist. Id.; Cleaborn v. Gentry,
Case No. 2:18-cv-2603, 2019 WL 4750599, at * 1 (W.D. Tenn.
Sept. 30, 2019). Dismissal is proper if the record
demonstrates behavior that is perverse in resisting authority
and stubbornly disobedient. Mager, 924 F.3d at 837.
light of Plaintiff s concession that he is precluded from
introducing expert testimony in this case and WMC's
December 13, 2019 filing of a Motion for Summary Judgment
based on Plaintiffs failure to offer any expert testimony
(Doc. No. 85), the Court finds appropriate the less drastic
sanction, which was proposed alternatively by WMC itself,
precluding such testimony. This remedy completely addresses
any possible prejudice WMC could have faced from Plaintiffs
failure to make timely disclosures. A harsher remedy thus is
not necessary to prevent prejudice or to address any bad
faith on the part of Plaintiff or Plaintiffs
WMC's Motion to Dismiss is DENIED, but
WMC's alternative request that Plaintiff be precluded
from introducing expert witnesses or testimony in this case
is GRANTED. Plaintiff shall not be allowed
to present expert testimony at any future point in this
litigation, and Plaintiffs claims shall stand or fall without
the benefit of any expert testimony.
 Certain of Plaintiff's claims and
certain Defendants were dismissed by prior Order of the Court
(Doc. No. 62), and default has been entered as to Defendant
First Call ...