circumstances that would explain why he failed to identify and designate the contested
expert witnesses within the three-month period allowed by the scheduling order.
What has been lost here, at the expense of counsels' needless finger pointing, is
the true intent of the Civil Rules "to secure the just, speedy and inexpensive
determination of every action." M.R.Civ.P. 1.6
Without a proper designation, the defendants will undoubtedly be prejudiced,
but to exclude plaintiff's experts will gut his case and seriously impair his ability to seek
redress. Even if plaintiff had met the deadlines and provided appropriate information,
the case would not be on the current trial list. This court's next civil trial list is
September through October 2008. The court will exercise its discretion to provide
additional time for plaintiff to provide a proper designation and for the defendants to
pursue discovery if necessary.
6 The court has outlined the details of counsels' arguments only to illustrate that the extent of counsels' bickering over routine matters has overshadowed the serious claims presented by a seriously injured lparty.
4 B. Plaintiff's Motion to Limit and/or Exclude Defendant's Experts
On February 6, 2008, Henckel filed a retaliatory "Objection to Defendants'
Designation of Expert Dr. Kimball [and other healthcare providers]?" Belanger timely
designated Dr. Kimball, an orthopedic surgeon, to testify about Henckel's injuries and
the infection that followed, and his present and future work capabilities. Henckel now
seeks to prevent Dr. Kimball from testifying about infections and work capability
because he contends that Dr. Kimball is not an expert in these areas. He first contends
that Dr. Kimball has never even examined him and further argues that Belanger has
failed to identify any records or other data considered by Dr. Kimbal1. 8 Henckel also
asks this court to exclude entirely the various healthcare providers that are named in
paragraph 2 of Belanger's designation. According to Henckel, Belanger's designation
states the following:
Defendant may call the Plaintiff's healthcare providers to offer factual evidence and opinions consistent with the medical records that have been produced as part of discovery. These healthcare providers have not been specifically retained, and because they are Plaintiff's healthcare providers, the Defendant cannot contact them without the Plaintiff's authorization.
Henckel contends that Belanger has not provided the necessary information required by
Rule 26. He argues that four of the eight listed experts are facilities, not individuals,
and he is unable to depose a facility. Additionally, Henckel asserts he provided
Belanger with an authorization for the release of medical records and information.9
7 The healthcare providers listed are those from whom the plaintiff sought treahnent. Two of them are specifically listed in the plaintiff's own expert designations.
B Neither party has provided the court with a copy of Belanger's expert witness designations (even though plaintiff said it was attached to his pleading), so it is difficult to analyze whether the designations satisfy Rule 26.
9 Henckel also asserts that he has no recollection of being treated by two of the designated witnesses, Ortho Atlantic Performance Therapy and Dr. Michael A. Ciampi.
5 Henckel also takes issue with Belanger's request for Dr. Kimball to conduct an
independent medical examination (1ME). He contends that it does not satisfy the
requirements under Rule 35 for seeking such an examination because Belanger has not
filed the requisite motion, and has not provided him with proper notice. However,
Belanger is not actually seeking an 1ME unless this court believes it is necessary to
resolve the dispute over the designation of Dr. Kimball. Thus, their request for an 1ME
is actually offered as an alternative for the court to consider. Furthermore, it is the court
order requiring an 1MB that must provide notice to the person to be examined, not the
motion from the party seeking the order. See M.R. Civ. P. 35(a) (stating "[t]he order
may be made only on motion for good cause shown and upon notice to the person to be
examined and shall specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be made"). Before the court
need address any request for an 1ME however, it must determine whether the
designation of Dr. Kimball is insufficient to allow him to testify about Henckel's
injuries.
Belanger contends that as a physician, Dr. Kimball has the requisite "specialized
scientific and technical knowledge" to testify about Henckel's infection and his work
capabilities. See M.R.Evid. 702. They argue that even though Dr. Kimball has chosen to
specialize in orthopedic surgery, he possesses sufficient knowledge of infectious
diseases and rehabilitation, particularly because such knowledge is an integral part of
his occupation. They assert that Henckel has been fully apprised of Dr. Kimball's
anticipated opinions and that if Henckel has further questions, he can take the doctor's
deposition. Additionally, they assert that it is unnecessary for Dr. Kimball to personally
examine Henckel in order to form an opinion that is based upon his review of the
medical records, medical literature, and other discovery along with his education,
6 training and experience. However, should the court disagree, they are prepared to have
Dr. Kimball perform an IME of Henckel if the court deems it necessary.
None of the evidentiary rules concerning expert testimony require a physician to
have actually examined a person before he or she may express an opinion about that
person's injuries. See M.R.Evid. 702-706. Instead, as the Law Court has noted, "[o]nce
the trial justice determines that an expert is qualified to render an opinion relevant to
the pending proceeding, the opinion of the expert is admissible if it is based on a proper
factual foundation." State v. Thompson, 503 A.2d 689, 692 (Me. 1986). All the proponent
of the testimony need show is that facts or data used by the expert to form his or her
opinion are "of a type reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject." [d. (quoting M.R. Evid. 703). With
this in mind, it is clear that physicians commonly rely upon medical records, medical
literature, and their education, training and experience in order to form a medical
opinion. The question of whether Dr. Kimball is qualified to discuss infection and
infectious diseases and rehabilitation depends upon the extent of his knowledge and
training in those areas and would likely require further information from Belanger
before it can be determined.
The final objection to Belanger's designations concerns the healthcare providers
that he has informed Henckel that he may call as witnesses. Although Henckel argues
that he has already provided the necessary authorization to obtain information from his
doctors, Belanger correctly points out that the authorization pertained only to medical
documents, and not to contact with the physicians. Belanger further asserts that they
are prohibited from directly contacting Henckel's treatment providers under federal
law and health care privacy rules. For this reason, they contend that they have fully
satisfied the requirements for expert designation, given the unique circumstances of this
7 case. Although they claim that the federal Health Insurance Portability and
Accountability Act (HIPAA) prevents such contact, they do not provide any citation to
the relevant sections of that statute, nor do they specify the health privacy rules that
would be violated.
Under HIPAA, a "covered entity" is prohibited from disclosing an individual's
protected health information unless the patient authorizes a disclosure or unless
disclosure is otherwise required or permitted under the statute. 45 c.F.R. § 164.502(a).
The definition of "covered entity" includes health care providers, and "health
information" includes oral information. Id. at § 160.103. An authorization from the
patient must specify the exact information to be disclosed. Id. at §154.508(c). It is thus
evident that the authorization provided by Henckel in this case did not extend to any
contact with his providers or any testimony they might give about his condition.
However, HIPAA permits disclosure of health information pursuant to a court order or
to a subpoena or discovery request when certain conditions have been met. Id. at §
164.512(e). It is unclear from the record whether Belanger asked for an additional
authorization from Henckel that would cover contact with his providers. It is also
unknown whether an appropriate discovery request was made or whether these
individuals have been subpoenaed. What is clear, however, is that Belanger has not
asked this court to issue an order requiring the healthcare providers to speak to them
about Henckel's condition. No further ruling is required at this time.
C. Plaintiff's Motion to Strike Defendant's Opposition to that Motion
Belanger filed a "Reply to the Plaintiff's Objection" to their expert designations
on February 27, exactly twenty-one days after the plaintiff filed his objection. In return,
Henckel filed a motion to strike Belanger's reply, claiming that it was filed outside of
the seven days allowed by M.R. Civ. P 7(e) for a party to file a reply memorandum.
8 Henckel is correct that a party has seven days to reply to an opposition to a motion, but
he is mistaken in his belief that the memorandum filed by Belanger was such a reply.
Notwithstanding the title of the memorandum, it is actually an opposition to Henckel's
motion that was filed to limit or exclude expert testimony. As such, Belanger had
twenty-one days from the filing of Henckel's motion to file a memorandum in
opposition. See M.R.Civ.P. 7(c)(2). Although Henckel has posited Belanger's expert
designations as the first filing for purposes of calculating the time requirements, those
designations do not constitute a "motion" for purposes of Rule 7, as they were not "[a]n
application to the court for an order." [d. at 7(b)(1). Instead, the first motion was
actually filed by Henckel, and Belanger thus timely filed its opposition thereto.
Therefore, Henckel's motion to strike Belanger's opposition to his motion on the basis of
a late filing is without merit and is dismissed.
D. Motion to Amend Complaint
Once a responsive pleading has been served, "a party may amend the party's
pleading only by leave of court or by written consent of the adverse party; and leave
shall be freely given when justice so requires." M.R.Civ.P.15(a). Unless there has been
"undue delay, bad faith, dilatory tactics, or unfair prejudice, courts should freely allow
an amendment to a complaint." Longley v. Knapp, 1998 ME 142, en 19, 713 A.2d 939, 945.
However, the trial court has discretion over whether to grant a motion to amend and
may deny it if the amended complaint would be subject to a motion to dismiss. Glynn
v. City of South Portland, 640 A.2d 1065, 1067 (Me. 1994).
Henckel filed a motion to amend on March 10, 2008,more than two months after
the Scheduling Order deadline and only two months before the discovery deadline. He
seeks to include claims under the theories of res ipsa [sic] loquitor, premises liability, and
strict liability. He asserts that he learned of the latter two theories only after depositions
9 were taken in this case, and that justice requires that he be given every possible legal
opportunity for recovery. Belanger first argues that there has been undue delay in
filing the motion because the date for the end of discovery has now passed and a total
of five depositions have already occurred. Additionally, they contend that the added
claims would not survive a motion to dismiss, and that the motion itself fails to state
with particularity the grounds upon which it is based. See M.R.Civ.P. 7(b). In his reply
memorandum, Henckel again accuses Belanger of undue delay in the ADR process and
asserts that there is sufficient time for Belanger to respond to the amended complaint.
Even if some amount of delay iin the ADR process is attributed to Belanger, it's not
relevant to an amendment of the complaint. Henckel also submits that it is
inappropriate for Belanger to argue against the amended counts, as "[t]heir opposition
is not the forum to plead their case." He believes his motion adequately states the
grounds for the requested relief.
It should be first noted that there is nothing that prevents Belanger from
asserting the reasons why Henckel's motion to amend should be denied, including that
the amended claims would be subject to dismissal. Thus, his argument that the
opposition is not the proper place for such argument is entirely without merit.
Furthermore, according to the Law Court, the doctrine of res ipsa loquitor "is neither
substantive law nor a theory of negligence. Rather, it is a form of circumstantial
evidence that permits a jury to infer negligence and causation from the mere occurrence
of an event." Poulin v. Aquaboggin Waterslide, 567 A.2d 925, 926 (Me. 1989). Therefore, it
is unnecessary to plead res ipsa loquitor as a separate count. lO Instead, Henckel can
10 Although Henckel asks the court to include this claim, there is no mention of the doctrine of res ipsa loquitor in the complaint nor are there any facts that would support such a finding.
10 request that the jury be instructed on the doctrine should the evidence at trial warrant
such an instruction.
As for the claim concerning premises liability, it is well established that "[a]
landowner owes a duty of reasonable care to provide safe premises to all persons
lawfully on the land, and a duty to use ordinary care to ensure the premises are safe
and to guard against all reasonably foreseeable dangers, in light of the totality of the
circumstances." Coffin v. Lariat Assocs., 2001 ME 33,
the problem with Henckel's use of a premises liability claim is that he has not alleged
that Belanger failed to provide safe premises, only that he failed to provide safe
materials to be used as scaffolding. In fact, the amended complaint does not even
specify who actually erected the scaffolding. Because the amended complaint fails to
allege adequate facts to establish a claim for premises liability, it would not survive a
motion to dismiss on this additional theory of recovery.
The same is true for the claim of strict liability. Under 14 M.R.S. § 221 (2007),
strict liability applies only to claims involving the sale of "goods or products in a
defective condition unreasonably dangerous to the user or consumer or to his
property." Other than a claim based on a sale of defective products, the only other basis
in Maine law for holding someone strictly liable stems from cases involving injuries
caused by dangerous animals. See e.g. Young v. Proctor, 495 A.2d 828 (Me. 1985); see also
JACK H. SIMMONS ET AL., MAINE TORT LAW §§ 14.05-06 (2004). Thus, it is not surprising
that Henckel has not cited to any authority that would allow him to bring a claim for
strict liability on these facts.
IV. DECISION AND ORDERS
The clerk will make the following entries as the Decision and Orders of the court:
11 A. The defendants' motion to exclude plaintiff's experts is denied without prejudice; however,
1. the plaintiff must provide the name and all identifying information of his engineering expert to defendants not later than May 22, 2008;
2. the plaintiff must provide all appropriate information required by M.R.Civ.P. 26(b)(4)(A)(i) as to his vocational and engineering experts not later that June 9, 2008.
3. If the defendants intend to call counter experts, they shall designate them not later than July 9, 2008.
4. All further discovery regarding the additional experts shall be completed not later than July 31, 2008.
B. The plaintiff shall submit to an examination by Dr. Kimball pursuant to M.R.Civ.P.35. Defendants shall provide notice of the date and time of the examination to plaintiff's counsel not later than June 9, 2008.
C. Plaintiff's motion to strike defendants' opposition is dismissed.
D. Plaintiff's Motion to Amend is denied.
SO ORDERED.
DATED: May 8, 2008
Tho as E. anty II Justice, Superior Court
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