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Scholz v. United States

United States District Court, E.D. Wisconsin

May 30, 2019

BOBBIE JO SCHOLZ, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          DECISION AND ORDER

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE.

         1. Facts and History

         Bobbie Jo Scholz served in the United States Army Reserve from 2001 to 2008, with a tour of duty in Iraq from 2006 to 2008. (ECF No. 107, ¶ 1.) She began receiving mental health care through the Department of Veterans Affairs in 2008. (ECF No. 107, ¶ 7.) She was admitted to an inpatient substance abuse program at the Tomah VA Medical Center for a month in early 2011. (ECF No. 107, ¶ 10.) She was readmitted about a month later for a second hospitalization, also lasting roughly a month. (ECF No. 107, ¶ 14.) When discharged from this second hospitalization, she was prescribed various medications and continued to receive care through a telehealth program. (ECF No. 107, ¶¶ 17-19.)

         On January 6, 2012, Scholz had elective breast reduction surgery at the Zablocki VA Medical Center. (ECF No. 107, ¶ 24.) She suffered various complications as a result of the surgery, leading to four additional surgeries. (ECF No. 107, ¶¶ 26-27.)

         She filed an administrative claim under the Federal Tort Claims Act (FTCA) on September 4, 2013, wherein she alleged that the breast reduction surgery was performed negligently and without her informed consent. (ECF No. 107, ¶ 32; see also ECF No. 1-1.) The VA denied the claim on April 2, 2014. (ECF No. 1-5.) In March 2015 she filed a second administrative claim relating to alleged malpractice in her mental health care. (ECF No. 107, ¶ 32; see also ECF No. 1-2.) The VA denied this second claim on September 8, 2015. (ECF No. 1-6.) Scholz requested the VA reconsider both of its denials, which it did, denying the claims again on February 16, 2016. (ECF No. 1-7.)

         Scholz filed this action on August 8, 2016. (ECF No. 1.) Pending before the court are five motions. Scholz has moved to exclude Dr. Daniel Yohanna and Dr. Kenneth Shestak from testifying as experts (ECF No. 45) and for partial summary judgment (ECF No. 50). The United States seeks partial summary judgment (ECF No. 57), to prohibit Noelle Johnson from testifying as an expert (ECF No. 64), to strike the expert rebuttal reports of Dr. Lawrence Amsel, Dr. Tom Pousti, and Jill Johnson, (ECF No. 64), and to strike the second declarations of Jill Johnson and Dr. Amsel (ECF No. 93). The briefing regarding these motions is closed and all are ready for resolution.

         2. The United States' Motions to Strike

         2.1. Noelle Johnson

         On November 30, 2017, Scholz designated pharmacist Noelle Johnson[1] as an expert witness under Rule 26(a)(2)(C), which does not require experts to produce reports, and stated that her testimony would include “opinions and knowledge of the Tomah VAMC substandard medical treatment.” (ECF No. 64 at 2.) The United States argues that Noelle Johnson should have been designated as an expert under Rule 26(a)(2)(B), which does require an expert report. Having failed to provide an expert report, the United States argues she should be barred from testifying as an expert.

         The issue of Noelle Johnson testifying as an expert witness was previously before the court when the United States moved both to strike Scholz's designation of her as an expert and to adjourn her trial deposition. (ECF No. 27.) That motion was based on the fact that Noelle Johnson remains an employee of the Department of Veterans Affairs and, as such, is prohibited from testifying as an expert other than on behalf of the United States unless authorized by the Department. See 5 C.F.R. § 2635.805; 38 C.F.R. § 14.808. The court denied the motion but noted that, if Noelle Johnson chose to testify as an expert despite the regulations prohibiting her from doing so, she did so at her own peril. (ECF No. 30 at 3.)

         As part of the proceedings regarding that prior motion, Scholz's attorney wrote a letter to defense counsel stating, “Noelle Johnson has not been retained as an expert to review the records of the Plaintiff ….” (ECF No. 29-6 at 1.) Nonetheless, according to the United States, “during her trial deposition, Noelle Johnson did not confine her testimony to her prior knowledge of the Tomah VAMC, but instead reviewed plaintiff's pharmacy records and now asserts in her declaration that she is able to render an opinion on the effect of medications on cognitive status and ability to consent to treatment.” (ECF No. 64 at 3 (citing ECF No. 34-1).) Specifically, the United States asserts, “Noelle Johnson provided opinions about plaintiff's pharmacy records ….” (ECF No. 64 at 2.) Thus, the United States asks the court to strike Noelle Johnson as both an expert witness in Scholz's case in chief and as a rebuttal expert.

         In response to the government's motion to strike, Scholz does not argue that she properly designated Noelle Johnson as an expert witness under Rule 26(a)(2)(C). Thus, the court regards Scholz as having conceded that Noelle Johnson was not properly designated as an expert witness under Rule 26(a)(2)(C). As such, Noelle Johnson was required to provide a report under Rule 26(a)(2)(B) if she was going to testify as an expert.

         Scholz argues that Noelle Johnson has “already given extensive expert testimony regarding Tomah VAMC pharmacy negligence” in other proceedings. (ECF No. 75 at 4.) In addition, she argues that, during a trial deposition in this case noticed by Scholz, Noelle Johnson “was able to identify and explain the Tomah VAMC pharmacy records produced by the Defendant on April 5, 2018[]” and testified that they were incomplete. (Id. at 5.) But Scholz never explains how either of these arguments supports allowing Noelle Johnson to testify as a Rule 26(a)(2)(B) expert witness in this case despite not having produced a report.

         Having failed to provide a report as required by Rule 26(a)(2)(B), Noelle Johnson is prohibited from testifying as an expert-either in support of Scholz's case in chief or in rebuttal. This prohibition includes the admission of any expert opinion included in testimony Noelle Johnson offered in another case. Having said that, the court has not been provided with a copy of Noelle Johnson's trial deposition in this case. Thus, it cannot determine whether any portion of her testimony might be relevant fact testimony. In many instances, the line between appropriate fact testimony and impermissible expert opinion may be blurry and come down to nuances of the question and the answer. To the extent she has relevant fact testimony to offer, no basis exists for preventing her from offering it.

         2.2. Rebuttal Experts

         Scholz was required to disclose her expert witnesses in accordance with Civil L.R. 26(b) no later than December 1, 2017. (ECF No. 18.) She disclosed Dr. Lawrence Amsel (ECF No. 64-7, dated Nov. 22, 2017), Dr. Tom Pousti (ECF No. 64-8, dated Nov. 13, 2017), and Jill Johnson (ECF No. 64-9, dated Nov. 8, 2017). The defendant was required to disclose its expert witnesses no later than February 1, 2018 (ECF No. 18), although that deadline was extended until February 15, 2018, for its psychiatric expert (Text Only Order of Feb. 8, 2018). It disclosed Dr. Kenneth C. Shestak (ECF No. 64-5, dated Jan. 28, 2018) and Dr. Daniel Yohanna (ECF No. 64-3, dated Feb. 15, 2018). And Scholz was allowed until June 1, 2018, to disclose any rebuttal expert. (Text Only Order of Feb. 8, 2018.) She disclosed Dr. Amsel (ECF No. 64-2, dated May 28, 2018), Dr. Pousti (ECF No. 64-4, dated May 29, 2018), and Jill Johnson (ECF No. 64-6, dated May 31, 2018).

         “The purpose of the rules governing expert witnesses is to safeguard against … surprise: ‘Expert witness discovery rules are designed to aid the court in its fact-finding mission by allowing both sides to prepare their cases adequately and efficiently and to prevent the tactic of surprise from affecting the outcome of the case.'” Baldwin Graphic Sys., Inc. v. Siebert, Inc., No. 03 C 7713, 2005 U.S. Dist. LEXIS 10692, at *6 (N.D. Ill. Feb. 22, 2005) (quoting Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000)).

         A rebuttal expert is one whose opinions are “intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C).” Fed.R.Civ.P. 26(a)(1)(D)(ii); Larson v. Wis. Cent. Ltd., No. 10-C-446, 2012 U.S. Dist. LEXIS 13057, at *10 (E.D. Wis. Feb. 3, 2012) (citing Butler v. Sears Roebuck & Co., 2010 U.S. Dist. LEXIS 67377, 2010 WL 2697601 at *1 (N.D. Ill. 2010)); Lowe v. CVS Pharmacy, Inc., No. 14 C 3687, 2017 U.S. Dist. LEXIS 74908, at *4 (N.D. Ill. May 17, 2017) (citing Stanfield v. Dart, No. 10 C 6569, 2013 U.S. Dist. LEXIS 20175, 2013 WL 589222, at *3 (N.D. Ill. Feb. 14, 2013)); cf. Peals v. Terre Haute Police Dep't, 535 F.3d 621, 630 (7th Cir. 2008) (“The proper function of rebuttal evidence is to contradict, impeach or defuse the impact of the evidence offered by an adverse party.”) (discussing rebuttal evidence generally). “The rebuttal expert report is no place for presenting new arguments, unless presenting those arguments is substantially justified and causes no prejudice.” Baldwin Graphic Sys., Inc. v. Siebert, Inc., No. 03 C 7713, 2005 U.S. Dist. LEXIS 10692, at *5 (N.D. Ill. Feb. 22, 2005); see also Larson v. Wis. Cent. Ltd., No. 10-C-446, 2012 U.S. Dist. LEXIS 13057, at *10 (E.D. Wis. Feb. 3, 2012) (holding that a rebuttal expert report “cannot be used to advance new arguments or new evidence to support plaintiff's expert's initial opinions”).

         The United States argues that the court must strike the purported rebuttal reports in their entirety because they are not limited to “solely” contradicting or rebutting the reports of the defense's experts. The court agrees with the United States that the purported rebuttal reports go far beyond the scope of proper rebuttal. The additional opinions offered are often wholly unconnected to any commentary on the defendant's experts' conclusions and based on additional evidence.

         However, the court cannot accept the United States' position that the court should strike an entire rebuttal report even though it contains proper rebuttal simply because it also contains improper supplemental opinions. Although the language of Fed.R.Civ.P. 26(a)(1)(D)(ii) has been used to define a rebuttal expert as one intended “solely” to contradict or rebut evidence on the same subject matter identified by another party, the use of “solely” does not suggest that the remedy is to strike the entire report if it includes opinions that go beyond rebuttal. Rather, at most the remedy is to strike the parts of the report that are not proper rebuttal.

         Scholz argues that, if the court finds that the rebuttal reports contain some additional or supplemental opinions, striking any part of the reports is not a proper sanction. (ECF No. 75 at 11-12.) Essentially, Scholz contends that the experts ought to be allowed to supplement their initial reports.

         Courts are to consider four factors when deciding whether to strike evidence: “(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date.” Baldwin Graphic Sys., Inc. v. Siebert, Inc., No. 03 C 7713, 2005 U.S. Dist. LEXIS 10692, at *4 (N.D. Ill. Feb. 22, 2005) (quoting David v. Caterpillar, 324 F.3d 851, 857 (7th Cir. 2003)). Scholz argues that the inclusion of new evidence in the rebuttal expert reports was justified by the United States producing records after Scholz's initial expert reports were filed, and the United States is not prejudiced by the inclusion of additional opinions in the rebuttal reports. (ECF No. 75 at 12.)

         In replying to Scholz's response, the United States does not argue that it will be prejudiced if Scholz's experts are permitted to supplement their reports. In addition, it appears that the United States never deposed these experts (ECF No. 75 at 6). Thus, the untimely supplementation will not result in costly repetition of depositions. If it had wanted to depose these experts following receipt of their supplemental reports, the United States had time to do so. Discovery did not close until two months later. (ECF No. 32.) And had it wanted to challenge some or all of the rebuttal reports, the deadline for filing motions under Daubert or otherwise challenging an expert was not for another five months. (Id.) Further, because the trial has not yet been scheduled, there necessarily will be no disruption to the trial if Scholz is allowed to supplement the experts' reports. And although it might be fair to say it was sloppy for Scholz not to have solicited certain of the supplemental opinions as part of the experts' initial reports, the court is unable to say that the failure was a result of bad faith or willfulness.

         Finally, because the United States does not challenge the experts' supplemental opinions under Daubert or Rule 702, the court does not consider whether the opinions would be subject to exclusion on that basis. Therefore, the United States' motion to strike the rebuttal reports of Jill Johnson and Drs. Larry Amsel and Tom Pousti will be denied.

         2.3. Plaintiff's Experts' Declarations

         The United States also moves to strike (ECF No. 93) declarations that Jill Johnson (ECF No. 81) and Dr. Amsel (ECF No. 82) submitted as part of Scholz's opposition to the United States' motion for summary judgment. The United States argues that “these declarations impermissibly set forth additional expert opinions not contained within Jill Johnson's and Dr. Amsel's initial expert reports.” (ECF No. 93 at 1.) The United States argues it “has been prejudiced by these recently rendered new expert opinions because the defendant does not have the opportunity to respond to these new opinions[, ]” nor does it have the “opportunity to challenge the new opinions of these experts by way of Daubert motions.” (ECF No. 93 at 3.)

         In response, Scholz insists that nothing contained in these declarations is new, and the basis for each challenged conclusion can be found in each expert's initial or rebuttal report. (ECF No. 110.) Of course, if that were true the declarations would be irrelevant and Scholz would have no reason to oppose the defendant's motion to strike. The fact that Scholz relies not on the reports but on the declarations in opposing the United States' summary judgment motion certainly supports the United States' argument that the declarations do more than merely set forth what is already stated in the experts' reports.

         2.3.1. Jill Johnson

         The United States challenges three opinions in Jill Johnson's second declaration:

Specifically in her second declaration, at paragraph 7, Jill Johnson offers the new opinion that to a reasonable degree of certainty “Plaintiff's Tomah VAMC mental health treatment was seriously compromised by an inappropriate working relationship between healthcare providers and pharmacy staff.” Jill Johnson at paragraph 9 offers the new opinion that “[p]laintiff's mental health treatment was compromised by the inappropriate and continuing negligent prescription practices during the years 2011 through early 2017, by the Department of Veterans Affairs providers at the Tomah VAMC, Zablocki VAMC, and outpatient providers.” At paragraph ten Jill Johnson also offers the new opinion that “[t]he negligent prescription of unsafe combinations of medications to the Plaintiff at the Tomah VAMC and the continued inappropriate prescription of mental health medications to the Plaintiff after her treatment could have been prevented.”

(ECF No. 93 at 2.)

         Although arguing that each of these challenged opinions was set forth in a prior report, Scholz does not direct the court to a specific page or paragraph in those reports where the opinions are set forth. Nonetheless, the court can recognize certain similarities between Jill Johnson's declaration and her prior reports. For example, with respect to the first opinion the government challenges, Johnson states in her rebuttal report (more properly a supplemental report as discussed above) that “[t]he Tomah VAMC mental health treatment program was seriously compromised by an inappropriate working relationship between health care providers and pharmacy staff.” This is subtly but materially different than the opinion she espoused in her declaration, where she opined not as to the VAMC mental health treatment program generally but to Scholz's care specifically. (ECF No. 81, ¶ 7 (“It is my opinion to a reasonable degree of certainty that Plaintiffs Tomah VAMC mental health treatment was seriously compromised by an inappropriate working relationship between healthcare providers and pharmacy staff.”).)

         In responding to the United States' challenge to paragraph nine of Jill Johnson's second declaration, Scholz quotes the following from Johnson's May 2018 report:

As noted in my prior report, there were many inappropriate medications given to Ms. Scholz while a patient at the Tomah VAMC and in her subsequent treatment by multiple Department of Veteran Affairs treatment providers. The medications prescribed to Ms. Scholz over the course of years as listed in Dr. Yohanna's report confirm that the inappropriate prescriptions continued for a prolonged period of time, and most likely affected her day to day functioning and mental status.

(ECF No. 110 at 3.) Again, what Jill Johnson said in her supplemental report (ECF No. 64-6 at 2) is subtly but materially different from what she says in her second declaration. Whereas Johnson previously said only that Scholz's inappropriate prescriptions “most likely affected her day to day functioning and mental status, ” (ECF No. 64-6 at 2), she now says that these “inappropriate and continuing negligent prescription practices” compromised Scholz's “mental health treatment.” (ECF No. 81 at 2, ¶ 9.)

         Finally, in an attempt to defend the opinions in paragraph ten of Jill Johnson's second declaration, Scholz points to the following from Johnson's May 2018 report:

[T]he standard of care for all medical facilities requires that pharmacy staff and health care providers work together to ensure that patients are provided safe medications. Medications orders [sic] are checked by pharmacist before dispensing to ensure that all medications are being prescribed in a safe manner. To ensure this is done, hospitals have pharmacy programs that monitor medications and alert providers when medications are inappropriate based on the dose, duplications and/or medications interactions.

(ECF No. 110 at 3.) The opinion Scholz quotes does not state that the prescription practices were negligent, as offered in Jill Johnson's second declaration. If Johnson had previously stated that the defendant was negligent, it would have been unnecessary for her to later opine that the harm to Scholz could have been prevented; negligence is by definition preventable.

         2.3.2. Dr. Amsel

         The United States similarly challenges Dr. Amsel's declaration on the ground that it contains new opinions. Specifically, it argues that “Dr. Amsel now terms plaintiff's alleged mental health treatment at Tomah VAMC a ‘precipitating event'” (ECF No. 93 at 2) that “led to years of continued negligent treatment by Department of Veterans Affairs providers” (ECF No. 82 at 2, ¶ 5). Moreover,

[a]t paragraph 5, Dr. Amsel opines for the first time that the Tomah VAMC failed to monitor and communicate plaintiff's deteriorating mental condition to her subsequent outpatient psychiatrist, plastic surgeon, and other healthcare providers. At paragraph 6, Dr. Amsel offers the new opinion that “[t]he V A 's negligent failure to communicate with Plaintiff's subsequent providers and to provide them with accurate and timely treatment records and notice of deficiencies in care was a contributing factor to Plaintiff's on-going negligent treatment.” In that same paragraph, Dr. Amsel states that “[p]laintiff's outpatient psychiatrist and plastic surgeon were not notified of Plaintiff's escalating symptom and deteriorating condition, as reported by Tomah nurses after discharge.” Dr. Amsel then offers the new opinion that “[t]his lack of communication prevented timely corrective treatment that could have stopped the continuing negligent treatment Plaintiff received in the years 2011 through the present.” Also, in paragraphs 9, 10 and 11, Dr. Amsel relates information from Dr. Dy's deposition and supports his opinion of negligent care based on his review of that deposition testimony.

(ECF No. 93 at 2-3.)

         In an effort to show that Dr. Amsel's opinion that Scholz's mental health treatment at the Tomah VAMC was a “precipitating event” is not new, Scholz points to various statements in Dr. Amsel's initial and rebuttal reports wherein he offers opinions that can be read as suggesting a causal relationship between the mental health care that Scholz received at the Tomah VAMC and the complications that resulted from the subsequent breast surgery. (ECF No. 110 at 4-5.) For example, Scholz quotes the following from Dr. Amsel's rebuttal report:

Ms. Scholz recognized her need for intensive treatment and sought that treatment at Tomah VA in late 2010. This was her first and only intensive residential treatment program provided by the Department of Veterans Affairs at any time. The opportunity that existed at that point to stop and reverse Ms. Scholz' downward spiral was tragically lost when the Tomah VAMC provided substandard treatment, which was then followed by inappropriate breast surgery at the Tomah [sic][2] V A M C .

(ECF No. 110 at 4 (quoting ECF No. 65-3 at 1).) This passage states merely that the surgery followed the care at the Tomah VAMC; it does not suggest a causal link between the two.

         Similarly, Scholz points to the following opinion from Dr. Amsel's initial report:

With proper medical treatment and improvements in her health, Scholz would have been able to resume employment. The substandard psychiatric care provided by the Tomah VAMC and subsequent inappropriate breast surgery and prolonged complications, that should never have taken place, are direct causal contributors to her permanent loss of vocational and personal functionality, both tragic losses in her life.

(ECF No. 110 at 5 (quoting ECF No. 65-2 at 6).) Again, Dr. Amsel observes merely that the breast surgery followed the mental health care at the Tomah VAMC. The opinion that ineffective mental health care and inappropriate surgery continue to impact Scholz does not suggest a causal relationship between the mental health care and the surgery. A person might injure his back at work and then later injure his leg in a car accident; merely because one followed the other does not mean that the back injury caused the leg injury.

         The only opinion Scholz identified where Dr. Amsel offered a causal connection between the Tomah VAMC mental health care and the surgery was when he said in his initial report:

The negligence of the Tomah VAMC impacted her psychiatric condition, and left her in an unstable psychiatric condition, including an inability to consent to surgery or to care for herself after elective reduction surgery was performed at the Zablocki VAMC on January 12, 2012.

(ECF No. 110 at 5 (quoting ECF No. 65-2 at 6).)

         To say that the negligence of the Tomah VAMC left Scholz unable to consent to surgery or to care for herself is different from saying that the Tomah VAMC's negligence was a “precipitating event.” The former may suggest that Scholz was unable to consent or care for herself but could have been treated such that she could subsequently consent and care for herself. But to say that the care at the Tomah VAMC was a “precipitating event” suggests that, prior to her allegedly negligent care, she would have been able to consent and care for herself, and it was only because of the defendant's negligence that she was rendered incompetent. In short, ...


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