Neurology Expert WitnessA cruise ship passenger brought personal injury action against the cruise ship operator arising from alleged fall against television cabinet while aboard caused by another passenger. The ship operator brought Daubert motion and moved to preclude the passenger from eliciting opinions from her neurologist. Plaintiff’s neurology expert witness gave an opinion regarding her injuries.

The neurologist authored an “Initial Evaluation” in which he gave his “clinical impression” after performing a physical exam. The expert diagnosed Plaintiff with post-concussive syndrome, cervical myofascial pain syndrome, cervical herniated disc, and posttraumatic headaches. About three months later, at his deposition, the neurology expert agreed that “a clinical impression is more or less a working diagnosis” and that at the time he gave his clinical impression he didn’t have “all the pieces to the puzzle.” He also admitted that at the time he prepared his Initial Evaluation he “did not have a final diagnosis.”

The neurology expert stated that he later formed his “clinical diagnosis” after he had reviewed additional records and testified that at the time he made his clinical impression he had no objective evidence of organic brain injury. However, after reviewing the MRI results, he changed his diagnosis to traumatic brain injury. The neurologist acknowledged that he hadn’t prepared a supplement or addendum to his Initial Evaluation, but that he planned to do so. The traumatic brain injury diagnosis was not disclosed to Defendants until his deposition, well past the court’s deadline.

Defendant sought to strike and exclude the expert’s opinion as untimely under Rule 26(a)(2) and the court’s Scheduling Order. Plaintiff argued that her neurology expert’s “Initial Evaluation” contained his medical opinions, despite being labeled “clinical impressions.” She argued that “[t]his is too important and serious a case to be determined by semantical differences and technical oversights. [The neurology expert’s] opinions were clear at the time of his [Initial Evaluation], whether they were artfully stated as such or not.”

District Court Judge Joan A. Lenard wrote in her opinion that Rule 26(a)(2)(D) requires a party to make the required expert disclosures “at the times and in the sequence that the court orders.” The Scheduling Order established a deadline for Plaintiff to furnish an expert witness list to Defendant, along with the reports or summaries required by Rule 26(a)(2). “Only those expert witnesses shall be permitted to testify,” it stated. The Rule requires expert disclosures to be “a complete statement of all opinions the witness will express and the basis and reasons for them.” The judge noted that an expert report is deemed to be adequate when it is sufficiently complete, detailed, and in compliance with the Rules so that surprise is eliminated, unnecessary depositions are avoided, and costs are reduced.

Here, Plaintiff disclosed her neurologist’s “Initial Evaluation” before the deadline to disclose her expert reports, but the expert admitted at his deposition that the Initial Evaluation contained his “clinical impression,” which was “a working diagnosis.” The expert said he was awaiting “additional pieces of information” which he would evaluate before changing his “clinical impression” to a “clinical diagnosis.” After reviewing the additional materials, the expert changed the diagnosis, and Plaintiff hadn’t disclosed a supplement or addendum to the expert’s Initial Evaluation or provided a final expert report reflecting the change. The first time Defendant heard that Plaintiff’s neurology expert had changed his diagnosis was at the expert’s deposition—almost a month after the deadline.

Accordingly, Judge Lenard held that Plaintiff violated Rule 26(a)(2) by failing to provide a complete statement of all opinions her neurology expert would express and the basis and reasons for them. She further violated Rule 26(e) for failing to timely supplement or correct the neurology expert’s Initial Evaluation. The untimely disclosure of Plaintiff’s neurology expert’s clinical diagnosis deprived Defendant of an opportunity to arrange for a rebuttal. For these reasons, Plaintiff’s failure to comply with Rule 26 was grounds for exclusion under Rule 37(c).

Judge Lenard wrote that Rule 26(e) stipulates that an incomplete expert disclosure must be timely supplemented, and Rule 37(c) states that Plaintiff can’t offer her neurology expert’s testimony “unless the failure was substantially justified or is harmless.” The court held that it was not and the expert’s opinion that Plaintiff suffered traumatic brain injury must be excluded. Further, the judge held that the expert’s “clinical impression” that Plaintiff suffered from post-concussive syndrome must also be excluded, as he later deemed that impression to be incorrect but failed to timely notify Defendant.

However, Judge Lenard found that Plaintiff’s neurology expert’s other initial “impressions” should not be excluded under Rule 37. They were disclosed prior to the disclosure deadline and didn’t change. Rule 26(e) requires a supplement or correction when a party learns that an expert disclosure is “incomplete or incorrect.” Plaintiff’s expert never deemed his impressions to be incomplete or incorrect, so no supplement or correction was warranted.

Judge Lenard also found that Plaintiff’s neurology expert’s initial “impressions” regarding Plaintiff’s cervical myofascial pain syndrome, cervical herniated disc, and posttraumatic headache satisfied Daubert. The court noted that a treating physician frequently forms an opinion on the cause of an injury or the extent to which it will persist in the future based upon his examination of a patient. In light of this, even after Daubert, treating physicians have routinely been allowed to testify to determinations that they made in the course of providing treatment on the cause of an injury and its severity.

As a result of this reasoning, Defendant’s Daubert Motion to Strike and Preclude Plaintiff from Eliciting Expert Opinions from Plaintiff’s neurology expert was granted in part and denied in part.

 

Brown v. NCL (Bahamas) Ltd., — F.Supp.3d —-, 2016 WL 3251896 (S.D. Fla. June 6, 2016).