Millen v. Mayo Foundation

170 F.R.D. 462, 1996 U.S. Dist. LEXIS 21311, 1996 WL 799128
CourtDistrict Court, D. Minnesota
DecidedNovember 7, 1996
DocketCiv. No. 4-95-771
StatusPublished
Cited by5 cases

This text of 170 F.R.D. 462 (Millen v. Mayo Foundation) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Millen v. Mayo Foundation, 170 F.R.D. 462, 1996 U.S. Dist. LEXIS 21311, 1996 WL 799128 (mnd 1996).

Opinion

ORDER

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A), upon the Defendant’s Motion to Strike the Plaintiffs supplemental designation of an expert witness.

A Hearing on the' Motion was conducted on October 31, 1996, at which time the Plaintiff appeared by Mark A. Hallberg, Esq., and the Defendant appeared by William R. Stoeri, Esq.

For reasons which follow, the Motion to Strike is granted, in part, and denied, in part.

II. Factual and Procedural Background

This is a medical malpractice action in which the Plaintiff alleges that the negligence of the Defendant caused the death of her husband, William P. Millen (“Millen”). In particular, the Plaintiff contends that the agents of the Defendant failed to adequately provide Millen with breathing therapy, known as continuous positive airway pressure (“CPAP”), and with an adequate, postoperative supply of oxygen. According to the Plaintiff, her husband suffered from obesity, and from sleep apnea, which would [463]*463cause him to unexpectedly stop breathing while sleeping. The Defendants deny any negligence in their provision of medical care to Millen.

By a Pretrial Order dated October 4,1995, we directed that all discovery be completed by September 9, 1996, and that the Plaintiff make her expert witness disclosures by no later than June 3,1996, with the Defendant’s disclosures to be completed by no later than August 5,1996. Consistent with this Court’s customary practice, the parties were encouraged to submit any pretrial disputes, for the Court’s resolution, as soon as they had met and conferred, and yet, continued at impasse. Notwithstanding this urging, we are informed that the parties disputed the scope of discovery, as it related to the taking of the depositions of the Defendant’s nurses, who had treated Millen in the hours before his death. Although initially agreeing to a limitation of seven depositions — a limitation that was memorialized in the Court’s Scheduling Order — the Plaintiff sought to depose thirteen nurses, who were in the Defendant’s employ, and who were involved in the postoperative care of Millen. After literally months of wrangling over the matter, the Defendant agreed to the taking of those depositions, and they were completed in July of 1996.

Consistent with her obligations, under the Court’s Scheduling Order, the Plaintiff disclosed her expert witness opinions on May 31, 1996. In those disclosures, the Plaintiff identified Dr. John Linner, who is a board-certified general surgeon, and Dr. Conrad Iber, who is board-certified in internal medicine, pulmonology, and critical care medicine. In the course of reciting his opinions, Dr. Linner has expressed the view that, in failing to provide Millen with supplemental oxygen, the Defendant’s nursing staff provided medical services which were “below standard practice under the circumstances.” According to the Plaintiff, “Dr. Linner is expected to testify that if [Millen] had been provided with CPAP and supplemental oxygen, he most likely would have survived the post' operative period and lived a normal life expectancy.”

For his part, Dr. Iber is expected to testify that Millen required CPAP post-operatively and, if he refused CPAP, then he should have received oxygen therapy during the sleeping hours, and the failure to provide that therapy would fall “below accepted standards of medical practice under the circumstances.” As related by the Plaintiff, “Dr. Iber is also of the opinion that the failure to provide standard medical care to [Millen] in the form of CPAP, cardiac monitoring, oximetry1 and oxygen therapy was a direct cause, of [Milieu’s] death during the early morning hours of April 23.”

In response to these medical opinions, the Defendant has timely disclosed the expert opinions of Dr. John C. Alverdy, who is board-certified in surgery and in critical care, of Dr. Richard E. Rauck, who is board-certified in anesthesiology, and of Dr. Peter Jebson, who is “experienced in the post-operative management of bariatric[s]2 surgery patients including those diagnosed with sleep apnea.” In Dr. Alverdy’s view, the Defendant’s medical treatment of Millen did not depart “from the standard of care by Mayo physicians, nursing personnel, or other medical personnel in the care and treatment provided * * As to Dr. Rauck, he is of the opinion that the post-operative monitoring of Millen, including the use of pulse oximetry and cardiac monitoring, were acceptable and met the appropriate standard of care, and the refusal of Millen to wear oxygen “was handled appropriately by medical staff.” Similarly, Dr. Jebson is expected to testify that the death of Millen “could have occurred at any time and was not caused by negligence on the part of Mayo medical personnel.”

Then, as a catch-all, the Defendant’s expert disclosures include the following:

All of the doctors, nurses, therapists, and other personnel who cared for [Millen] are persons with specialized knowledge who, if [464]*464they testify, mil testify as fact witnesses with expertise. Their testimony, Mayo expects, will be in accordance with their notes in the Mayo Clinic medical record, with their depositions (if applicable), Mayo’s Answers and defense in this case denying negligence, and with the above disclosed opinions of Dr. Alverdy, Dr. Rauck, and Dr. Jebson.

What has generated this controversy, however, is the Plaintiffs proffer of a supplemental expert disclosure, which announces the anticipated testimony of Irene Grossbach (“Gross-bach”), who is a pulmonary clinical nurse specialist at the Veterans Administration Medical Center, in Minneapolis, Minnesota. In Grossbach’s opinion, the Defendant’s nursing staff was negligent, in its care and treatment of Millen, by failing “to provide post operative hospital care that was consistent with accepted standards of medical and hospital practice.”

According to Grossbach, the Plaintiffs decedent presented a continuing risk of obstructive sleep apnea and, as a consequence, “accepted standards of hospital practice required that he receive CPAP during his sleeping hours, that he receive supplemental oxygen and that his oxygen levels be monitored through pulse oximetry.” Among other opinions, Grossbach is expected “to testify that the arterial blood gases obtained during the attempted resuscitation of [Millen] during the early morning hours of April 23,1993 suggest that [he] was not receiving adequate oxygenation during the resuscitation efforts,” and that, with “the proper placement of an endotracheal tube, adequate manual resuscitation on bag capabilities and proper mask ventilation technique, the oxygenation (PaC>2) and ventilation (pH, PaC02) should have improved substantially.”

The Defendant contests the proffer of Grossbach’s opinion testimony as it is, unquestionably, untimely. Notwithstanding our Scheduling Order, which directed that the Plaintiff disclose her expert testimony by no later than June 3, 1996, Grossbaeh’s disclosures were not made by the Plaintiff until three months later — on September 5, 1996.

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Cite This Page — Counsel Stack

Bluebook (online)
170 F.R.D. 462, 1996 U.S. Dist. LEXIS 21311, 1996 WL 799128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millen-v-mayo-foundation-mnd-1996.