Ctrl St Hlth & Life v. Brewer

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 4, 2003
• Docket: 02-60686
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D In the June 4, 2003 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk

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No. 02-60686 Summary Calendar _______________

CENTRAL STATES HEALTH & LIFE COMPANY OF OMAHA, NEBRASKA,

Plaintiff-Appellant,

VERSUS

HERBERT LEON BREWER, III,

Defendant-Appellee.

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No. 02-60718 Summary Calendar _______________

Plaintiff-Appellee,

Defendant-Appellant. _________________________

Appeals from the United States District Court for the Northern District of Mississippi m 1:99-CV-383-D-D _________________________

Before HIGGINBOTHAM, SMITH, and occupation for which you are qualified CLEMENT, Circuit Judges. by reason of education, training or expe- rience. JERRY E. SMITH, Circuit Judge:* The policy also provided Brewer with benefits Central States Health & Life Company of in the event he became “partially disabled,” Omaha, Nebraska (“Central States”), appeals defined as “the inability, as a result of sickness a declaratory judgment finding Herbert Leon or injury, to perform one or more of the main Brewer, III, continuously disabled for a period duties of your principal occupation, or the in- of twenty-four months and therefore entitled ability to perform those duties on a full-time to benefits under a Central States disability in- basis.” surance policy. Brewer appeals the denial of his motion to add a counterclaim for bad faith. In 1996, while incarcerated, Brewer Finding no reversible error, we affirm. strained his upper extremities and neck after he slipped on a wet concrete walkway. Over one I. year later, he contacted Central States and In January 1999, Brewer, a chiropractor, initiated a claim for disability benefits, submit- was issued a Central States disability policy ting medical records from three different entitling him to benefits in the event of “total doctors, including his treating physician, Dr. disability,” defined by the policy as Alan Pritchard, who stated that Brewer was “totally disabled” as of the date of the acci- [the] inability, as a result of sickness or dent.1 injury to perform the substantial and ma- terial duties of your principal occupation In August 1999, Central States denied for the first 24 months of continuous Brewer’s claim, then filed a declaratory judg- disability. After the first 24 months of ment action seeking a determination that continuous disability, total disability Brewer was neither totally nor partially dis- means the inability to engage in any abled under t he terms of the policy. Before trial, the district court denied Central States’

* Pursuant to 5TH CIR. R. 47.5, the court has 1 determined that this opinion should not be pub- Pritchard later retracted this opinion but still lished and is not precedent except under the limited concluded that additional testing was needed to circumstances set forth in 5TH CIR. R. 47.5.4. determine the extent of Brewer’s disability.

2 motion to strike the designation of experts Dr. or by deposition within the preceding Rommell Childress and Dr. John DeSutter and four years. denied Brewer’s motion to add a counterclaim for bad faith. The court granted declaratory FED. R. CIV. P. 26(a)(2)(B). Central States relief for Brewer, finding him totally disabled argues that Childress’s five page report does for a period of twenty-four months beginning not meet four of Rule 26’s requirements; the on the date of the accident, and partially dis- report allegedly does not contain a complete abled thereafter. statement or the bases for Childress’s opin- ions. Also, the report allegedly fails to list cas- II. es in which Childress has testified as an expert Central States contends the district court within the past four years, and it lacks any erred by refusing to strike Childress and De- exhibits. Sutter as experts for their failure to comply with FED. R. CIV. P. 26(a)(2)(B). The refusal Even where an expert’s report fails to meet to exclude or limit testimony is reviewed for the requirements of rule 26, his testimony abuse of discretion. Black v. Food Lion, Inc., should be excluded only after an examination 171 F.3d 308, 310 (5th Cir. 1999). We re- of four factors: (1) the party’s explanation, if verse a decision regarding the designation of any, for failure to comply with the scheduling expert witnesses only in “unusual and excep- order; (2) the prejudice to the opposing party tional cases.” Sierra Club, Lone Star Chapter of allowing the witness to testify; (3) the pos- v. Cedar Point Oil Co., 73 F.3d 546, 569 (5th sibility of curing such prejudice by granting a Cir. 1996) (citation omitted). continuance; and (4) the importance of the testimony. Sierra Club, 73 F.2d at 572. A district court has wide latitude in de- termining whether an expert report is suffi- A. ciently detailed and complete. Michaels v. Childress’s report opines that, following the Avitech, Inc., 202 F.3d 746, 750 (5th Cir. accident, Brewer was “totally disabled for a 2000). Rule 26(a)(2)(B) requires that expert minimum of six to eight weeks from doing his reports contain normal occupation or any occupation.” The report also states that Brewer’s medical a complete statement of all opinions to condition currently precludes him from func- be expressed and the basis and reasons tioning as a chiropractor on a full-time basis. therefor; the data or other information At his deposition, Childress explained that considered by the witness in forming the Brewer “might be able to do some minor man- opinions; any exhibits to be used as a ipulations. He may be able to do one a day, summary of or support for the opinions; but if he tried to do ten, it might literally in- the qualifications of the witness, capacitate him as far as having increased neck including a list of all publications au- and arm symptoms . . . .” thored by the witness within the pre- ceding ten years; the compensation to be Noticeably, the report does not expressly paid for the study and testimony; and a state whether Brewer was continuously dis- listing of any other cases in which the abled for a period of twenty-four months fol- witness has testified as an expert at trial lowing the accidentSSthat is, unable to per-

3 form the substantial and material duties of his perform the substantial and material duties of principal occupation. Childress later deposed, a chiropractor for a twenty-four-month period however, that Brewer “did meet the definition after the accident.3 Indeed, the report con- of total disability.” Central States argues that cludes that Brewer was unable to perform any Childress’s deposition testimony is outside the job for a period of six to eight weeks there- scope of what amounts to an incomplete after. Not surprisingly, Central States does expert report. not explain how it was prejudiced.

The report’s statement that Brewer was un- Second, Central States argues that the re- able to perform his occupation or any occu- port fails to provide satisfactory bases for Chil- pation for a minimum of six to eight weeks dress’s conclusions. Specifically, Central following the accident is not inconsistent with States contends that Childress “provides no Childress’s deposition testimony that Brewer summary of the data upon which he allegedly was totally disabled for twenty-four months. relied, other than the Defendant’s medical rec- For one, the policy defines total disability as ords, nor does Dr. Childress in his expert re- the inability to perform only the claimant’s port specify which doctors or which medical principal occupation for a twenty-four-month records he reviewed.” In fact, however, the period. Second, the expert report states that report’s conclusions are based on a review of Brewer was unable to engage in any occu- Brewer’s “entire” medical record, including pation for a minimum of six to eight weeks; the “x-rays and MRI scans that document the this does not rule out the possibility of a longer cervical disc pathology at several levels.” We disability. agree with the district court that, i n light of Childress’s stated examination of Brewer’s In any event, and absent unfair surprise or entire medical record, it was unnecessary to bad faith, an expert may testify as to matters inventory the individual documents reviewed. outside his report if the matter is within his expertise.2 The test is not whether the expert Third, Central States contends it was pre- report covers every conceivable question of judiced by the report’s omission of the cases in cross-examination, but whether it provides which Childress has testified within the last sufficient detail such that the opposing party is four years. The report states that Childress not surprised. has “testified as an expert witness by way of deposition on numerous occasions over the Central States cannot claim it was surprised last four years,” but omits specific cases in by Childress’s deposition testimony. The re- violation of rule 26(a)(2)(B). port’s conclusion that Brewer is currently un- able to work full-time as a chiropractor should An analysis of the four Sierra Club factors, have put Central States on notice that Chil- however, suggests the district court did not err dress would testify that Brewer was unable to

3 Similarly, in concluding that Childress did not 2 Shelak v. White Motor Co., 581 F.2d 1155, testify outside the scope of his report, the district 1159 (5th Cir. 1978) (citation omitted); DeMarines court noted that Childress “did not testify as to any v. KLM Royal Dutch Airlines, 580 F.2d 1193, new opinions. He simply expanded and developed 1201-02 (3d Cir. 1978). those opinions contained in his report.”

4 by refusing to exclude the testimony. Chil- 1116, 1138 (10th Cir. 1999). Northern Dis- dress’s deposition was not obtained until al- trict of Mississippi Local Rule 26.1(A)(2)(f) most a year after he submitted his report. provides: “A party shall designate treating Despite the report’s reference to Childress’s physicians as experts pursuant to this rule, but testimony in other cases, Central States never is only required to provide the facts known moved to compel discovery.4 Information re- and the opinions held by the treating phy- garding Childress’s previous testimony may or sician(s) and the summary of the grounds may not have been critical to Central States’s therefor.” Accordingly, DeSutter’s desig- case; the district court, however, was not obli- nation as an expert witness is not conclusive as gated to grant a continuance or strike the tes- to his status. timony to accommodate Central States’s inaction. Central States complains that DeSutter tes- tified outside his capacity as a treating phy- Finally, Central States contends the expert sician by making reference to other doctor’s report violated rule 26 because no exhibits reports and medical records. DeSutter, a chi- were attached. Childress’s testimony made ropractor, began treating Brewer in January use of only three exhibits: his expert report, his 1999. According to his two-page report, he curriculum vitae, and his office notes. The has taken “yearly cervical x-rays, an x-ray of first two were part of the rule 26 disclosure. Dr. Brewer’s right elbow, and performed the As to the office notes, in light of Brewer’s following physical tests: Bikele’s sign; Fro- contention that Childress repeated the notes ment’s sign; Inverted Radical Reflex; Radial “almost verbatim in his expert report,” Central Reflex; Tinel sign; and, Grip Strength Test.” States does not explain how it was prejudiced The report also states that, as part of treat- by their omission. ment, DeSutter has reviewed Brewer’s medical records, including an MRI report signed by B. Atkinson. The district court determined that DeSutter, as a treating physician, was not required to In concluding that Brewer is totally dis- submit an expert report. Generally, a treating abled under the policy, however, the report physician is not considered an expert witness also states that “chiropractic heath care re- if he testifies about observations based on per- quires physical exertion and manipulation of a sonal knowledge. Davoll v. Webb, 194 F.3d patient’s neck and back and an average chi- ropractor typically performs hundreds of mani- pulations during the course of one day.” At 4 deposition, DeSutter opined that Brewer was Central States’s reliance on Sierra Club is disabled to work as a chiropractor; this opin- misplaced. In that case, the district court struck ion was based on DeSutter’s intimate famil- defendants’ experts as a sanction for violating the court’s accelerated discovery order. 73 F.3d at iarity with a chiropractor’s occupational du- 569. Here, Central States alleges a rule 26(a)(2) ties. DeSutter also testified that he had re- violation independent of any specific discovery viewed previous medical records and ordered order. Notably, Sierra Club affirmed the court’s an MRI report prepared in preparation for tes- striking of experts under an abuse of discretion timony; he testified as to his curriculum vitae, standard of review, the same standard we apply prior experience, and publications. These ob- here in affirming the court’s refusal to strike.

5 servations are consistent with expert witness testimony, Davoll, 194 F.3d at 1138, so the III. court erred in concluding that DeSutter’s tes- Central States argues there is insufficient timony related solely to treatment. evidence to support judgment for Brewer. We As with Childress, the question becomes reverse findings of fact only where, after re- whether DeSutter’s expert report satisfies rule viewing the record, we are left with a definite 26(a)(2)(B). Central States takes issue only and firm conviction that error has been com- with DeSutter’s failure to attach extraneous mitted. Reich v. Lancaster, 55 F.3d 1034, medical records and doctor’s notes to his re- 1045 (5th Cir. 1995). The district court “has port.5 Yet, these records, which Central States the decided advantage of first hand experience does not identify, chiefly relate to DeSutter’s concerning the testimony and evidence pre- treatment of Brewer and not to his expert sented at trial.” Id. opinion regarding whether Brewer was able to perform the occupational duties of a chiro- The court reasonably concluded that Brew- practor. It is no secret that physicians must er was unable to perform the substantial and utilize a patient’s medical record, including the material occupational duties of a chiropractor opinions of other doctors, in the course of for twenty-four months following his accident. treatment. Childress testified that Brewer’s condition pre- vents him from performing chiropractic man- Even where DeSutter’s testimony consti- ipulations for a sustained period of time; he tuted opinion testimony requiring the attach- also testified that Brewer was unable to per- ment of Brewer’s medical records used as ex- form the occupational duties of any profession hibits, Central States does not argue how it for a minimum of six to eight weeks following was harmed by the omission. DeSutter’s re- the 1996 accident. DeSutter testified that port mentions various tests performed on Brewer could not return to work as a Brewer, including the 1998 MRI report signed chiropractor and that Brewer complained of by Atkinson. Central States was aware that pain consistent with objective medical tests. DeSutter’s opinion was based, at least in part, Samuel Cox, Central States’s vocational ex- on tests performed by other doctors. With pert, and Dr. David Strauser, Brewer’s voca- over a year to obtain these documents, Central tional expert, stated that Brewer may have dif- States took no action. Therefore, the court ficulty bending, stooping, and reaching, mak- did not err by admitting DeSutter’s testimony. ing it difficult to work as a chiropractor.

Central States argues that the district court 5 erroneously ignored objective evidence to the Central States’s brief provides record citations contrary. Relying on the vocational experts’ but does not mention the specific doctor’s notes testimony that a chiropractor must occasion- and records omitted from DeSutter’s report. Based on our review of the deposition testimony, outside ally lift twenty to fifty pounds, Central Statess of Atkinson’s MRI report, which DeSutter referred points to video surveillance tapes showing to on direct examination, all other extraneous Brewer, with the aid of his eight-year-old son, reports and records were mentioned on cross- lifting several fifty-eight-pound fencing gates. examination. As with Childress, DeSutter was not The tape also shows Brewer lifting a bag of expected to anticipate every possible question in dog food and fueling his vehicle several times. Central States’ cross-examination.

6 We have viewed the tapes and are not con- motion was denied. Following a continuance, vinced they are probative. The evidence ad- the court ordered that all discovery be duced at trial indicates that Brewer is unable to completed by July 13, 2001, and that “all mo- perform his occupational duties on a sustained tions other than motions in limine” be filed by basis, not that he is incapable of lifting heavy August 13, 2001.6 The court did not explicitly objects for brief intervals. In any event, set a new deadline for amending pleadings. Brewer’s son assisted Brewer by holding one The discovery deadline was subsequently ex- end of the gates while Brewer lifted and slid tended to August 13, 2001; no other deadlines them into the back of a truck. A person with were affected by that order. little physical ability could have performed any of the light tasks displayed on the tapes. The court maintained that the deadline for amending pleadings had remained October 1, Similarly, the testimony of Sheriff’s Deputy 2000, all along, making Brewer’s motion un- Kelly Hall does not undermine Brewer’s claim timely by over six months. Brewer contends to disability benefits. Hall testified that while the court’s subsequent order that “all motions incarcerated, Brewer performed several other than motions in limine” be filed by Au- chiropractic manipulations and adjustments on gust 13, 2001, included amendments to plead- her and her husband. Again, this testimony ings. Further, he argues that the bad faith shows, at most, that Brewer is capable of per- claim was developed only as a result of dis- forming infrequent, non-repetitive tasks. As covery conducted before the August 13 the testimony indicated, Brewer’s occupational deadline. disability lies in his difficulty performing chiropractic duties on a sustained basis. Leave to amend should be freely given “[i]n the absence of any apparent or declared IV. reason, such as undue delay, bad faith or dil- Brewer appeals the denial of his motion to atory motive on the part of the movant, re- add a counterclaim for bad faith. We review a peated failure to cure deficiencies by amend- denial of leave to amend for abuse of dis- ments previously allowed, undue prejudice to cretion. Lowrey v. Texas A & M Univ. Sys., the opposing party by virtue of allowance of 117 F.3d 242, 245 (5th Cir. 1997) (citation the amendment, futility of the amendment, etc. omitted). The discretion of the district court . . .” Foman v. Davis, 371 U.S. 178, 182 is limited by rule 15(a), which provides that (1962). The deadline extension, though re- “leave shall be freely given when justice so requires.” FED. R. CIV. P. 15(a). 6 Central States’ brief erroneously states that The court denied Brewer’s motion as “un- the magistrate judge’s order extended “the deadline for all other Motions other than Motions in Limine timely.” The original scheduling order set a [sic] to July 13, 2001, and the Motion to Amend deadline of October 1, 2000, for amending all Pleadings to March 1, 2001.” In fact, the order pleadings. A month after the deadline had makes no reference to a new deadline for amending passed, both parties filed a Joint Motion to pleadings, nor is the date March 1, 2001, men- Amend Case Management Plan and Schedul- tioned anywhere in that order. We do not appreci- ing Order, proposing a new deadline for ate counsel’s liberties, intentional or not, with the amending all pleadings to March 1, 2001. This record; such material misrepresentations are subject to sanction.

7 quiring that all motions other than motions in of the August 13 deadline. limine be filed by August 13, 2001, makes no express mention of a change in the deadline for The judgment in both appeals is amending pleadings. That deadline was AFFIRMED. previously set at October 1, 2000; the parties’ joint November 2000 motion proposing to extend the deadline to March 1, 2001, was denied. Therefore, the court did not abuse its discretion by denying, as six months tardy, Brewer’s proposal to add a counterclaim for bad faith.

Generally, parties should be granted leave to amend their pleadings where discovery un- covers new information. But, we reject Brew- er’s contention that the grounds for his bad faith claim were developed only as a result of the discovery immediately preceding the Au- gust 13, 2001, deadline. A claim for bad faith in the payment of insurance benefits requires that “(1) the insurer has no reasonable basis for denying or delaying payment of the claim or (2) the insurer knew or should have known that there was no reasonable basis for denying or delaying payment of the claim.” Texas Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 317 (Tex. 1994).

Brewer contends that, as a result of dis- covery preceding the August 13, 2001, dead- line, he learned that Central States’ in-house medical expert was an internist without spe- cific orthopedic experience and that critical pages were missing from his claim file.7 The basis of a bad faith claim, however, lies in the reasonableness of Central States’ refusal to pay benefits. This reasonableness (or lack thereof) should have been apparent to Brewer long before discovery conducted on the heels

7 Central States objected to the discovery of these documents based on the attorney-client privilege.