UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DAMOND LEE WILLIAMS,
Plaintiff,
v. No. 16-cv-2062 (EGS) UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Damon Lee Williams (“Mr. Williams”), a veteran of
the United States Air Force, brings this medical malpractice
action against the United States Department of Veterans Affairs
(“VA”) and the United States of America (collectively, the
“Defendants”) under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 1346(b), arising from his treatment at the Veterans
Affairs Medical Center (“VAMC”) in Washington, D.C. See
generally First Am. Compl. (“FAC”), ECF No. 48. 1 In October 2013,
Mr. Williams arrived at the VAMC with swelling in his left foot,
throat, and jaw. Asserting that the VAMC staff failed to
properly treat his left foot, Mr. Williams contends that the
VAMC staff acted negligently, and that they were negligently
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. supervised in treating his left foot.
The Defendants move for summary judgment and the preclusion
of Mr. Williams’ proposed expert opinions. Upon careful
consideration of the parties’ submissions, the applicable law,
and the entire record herein, the Court concludes that
additional discovery is warranted to allow Mr. Williams to
demonstrate an essential element of his FTCA claims—the
applicable standard of care—based on expert testimony. Because
the Court has not set a trial date in this case, the Court will
exercise its discretion to re-open discovery for the limited
purpose of permitting Mr. Williams to either file a supplemental
expert report or retain a new expert witness to present expert
testimony concerning the applicable standard of care. Therefore,
the Court GRANTS Mr. Williams’ request for leave to amend his
expert opinions or disclose a new expert, and DENIES WITHOUT
PREJUDICE Defendants’ Motion to Preclude Expert Opinions and for
Summary Judgment.
I. Background
Mr. Williams served as an aircraft fuel maintenance
engineer in the Air Force until he was honorably discharged in
1997. Defs.’ Ex. E, ECF No. 44-2 at 47-48. 2 After working for an
2 The material facts—drawn from the parties’ submissions—are undisputed, unless otherwise indicated. See, e.g., Defs.’ Statement of Material Facts Not in Dispute (“Defs.’ SOMF”), ECF No. 44-3 at 1-2; Pl.’s Resp. to Defs.’ SOMF & Pl.’s Statement of 2 aerospace company on Andrews Air Force Base, Mr. Williams
eventually became an independent, personal physical fitness
trainer. Defs.’ Ex. A, ECF No. 44-2 at 10. On October 20, 2013,
Mr. Williams participated in an athletic event, “Tough Mudder,”
which involved completing an obstacle course by “[c]limbing
rope, pulling stones, carrying logs, running up hills, running
down hills, pulling sleds, [and] climbing walls.” Pl.’s Dep.
Tr., Defs.’ Ex. B, ECF No. 44-2 at 18.
During the competition, a pebble entered Mr. Williams’
shoe, causing a scrape to his left foot. Id. at 19. After
cleaning it, Mr. Williams applied a bandage to his left foot to
stop the bleeding. Id. A few days later, Mr. Williams
experienced “stiffness” and “swelling” in his left foot, making
it difficult for him to walk. Id. at 20. On October 29, 2013,
Mr. Williams called the VAMC’s Advice Line, complaining about an
“infection in [his] right lower molar” and “swelling and pain in
[his] right jaw and [the] back of [his] throat.” Defs.’ Ex. C,
ECF No. 44-2 at 37.
A. Mr. Williams Visits the VAMC
The next day, on October 30, 2013, Mr. Williams arrived at
the VAMC without an appointment, using a cane and complaining
about, inter alia, his left foot that was “stiff” and “swollen”
Genuine Issues (“Pl.’s SOMF”), ECF No. 46-2 at 1-3; Defs.’ Reply to Pl.’s SOMF, ECF No. 47-1 at 1-2. 3 with a “reddish tint.” Pl.’s SOMF, ECF No. 46-2 at 1 ¶ 1; see
also Pl.’s Dep. Tr., Defs.’ Ex. B, ECF No. 44-2 at 21-22. First,
a nurse, Arleen Gray (“Ms. Gray”), took Mr. Williams’
temperature, Pl.’s Dep. Tr., Defs.’ Ex. B, ECF No. 44-2 at 23-
24, noting that the “Chief Complaint” of Mr. Williams was “pain
and swelling of [the] neck and jaw from [an] infected tooth [in
the] r[igh]t lower molar [for the past] 4 days,” Defs.’ Ex. C,
ECF No. 44-2 at 34-35.
Next, a nurse practitioner, Marguerite McGarrah
(“NP McGarrah”), checked Mr. Williams’ glands and looked at his
left foot. Pl.’s Dep. Tr., Defs.’ Ex. B, ECF No. 44-2 at 25
(“[NP McGarrah] took a look at my foot. She also reached forward
and touched my neck, my glands in my neck area, right here.”). 3
As NP McGarrah observed him, Mr. Williams removed his left shoe
and sock. Pl.’s SOMF, ECF No. 46-2 at 2 ¶ 3; see also Pl.’s Dep.
Tr., Defs.’ Ex. B, ECF No. 44-2 at 26 (“I know I took the left
[shoe and sock] off.”). Mr. Williams did not request any tests
of his left foot. Pl.’s Dep. Tr., Defs.’ Ex. B, ECF No. 44-2 at
28.
NP McGarrah’s medical notes from the October 30, 2013 visit
3 The parties dispute whether NP McGarrah “examined” Mr. Williams’ left foot. Compare Pl.’s SOMF, ECF No. 46-2 at 2 ¶ 4 (“A mere look with no documentation or clinical advisements does not constitute an examination.”), with Defs.’ Reply to Pl.’s SOMF, ECF No. 47-1 at 2 ¶ 7 (“[Mr. Williams] testified under oath that [NP] McGarrah examined his left foot.”). 4 do not reflect her examination of his left foot or lower
extremity. Defs.’ Reply to Pl.’s SOMF, ECF No. 47-1 at 2 ¶ 8.
NP McGarrah, however, noted that the “Clinical Observation”
involved an examination of Mr. Williams’ mouth, noting “slight
swelling [on the] r[igh]t side of [his] jaw.” Defs.’ Ex. C, ECF
No. 44-2 at 35. NP McGarrah also noted that Mr. Williams’ mouth
was “unremarkable,” the “thyroid feels puffy,” and there was
“puffiness” on the right side of his neck that “extends around
to [the] thyroid.” Id. at 36. NP McGarrah prescribed
Mr. Williams with Penicillin VK with “some misgivings, in light
of past h[istory] and concern for antib[iotic] resistance.” Id.
at 37.
B. Mr. Williams Receives Follow-Up Medical Treatment
A few days after the October 30, 2013 visit, Mr. Williams
boarded a plane to Seattle, Washington. Pl.’s Dep. Tr., Defs.’
Ex. B, ECF No. 44-2 at 30. At that point, Mr. Williams was
“[s]till feeling bad”; there was “[n]ot really much
improvement”; and “[t]he swelling seemed to still be there.” Id.
In November 2013, Mr. Williams received follow-up medical
treatment at two different medical centers in the State of
Washington. Id. at 31-32. On November 3, 2013, Mr. Williams’
chief complaints were “Foot Swelling” and “Dental Pain” during
his visit at the first medical center. Pl.’s Ex. B, ECF No. 46-4
at 13 (“The patient notes that on Tuesday he developed a red
5 area with blister to the dorsum of his left foot which has
gradually expanded to involve his entire lower extremity up to
the knee with some erythema extending up the left thigh.”). The
physicians advised him that surgery might be necessary. Pl.’s
Ex. G, ECF No. 44-6 at 68.
On the same day, Mr. Williams was transferred to the second
medical center. Id. There, Mr. Williams was diagnosed with “Left
leg cellulitis” and “NECROTIZING FASCIITIS” on November 4, 2013.
Defs.’ Ex. D, ECF No. 44-2 at 40. 4 Under the “Physical Exam”
section in the doctor’s notes, it contains the following
“Musculoskeletal” description:
left lower leg with erythema, bullae below the knee to the foot, leg is swollen and edematous compared to right, popped blisters contained clear yellowish/orange fluid, leg superior to knee is normal in caliber, leg is nontender, normal sensation, ROM is limited by swelling but able to move toes and foot at the ankle.
Id. at 41. Mr. Williams underwent emergency surgery for his
skin-related infections, and he spent approximately ten days in
the hospital. Pl.’s Dep. Tr., Pl.’s Ex. I, ECF No. 46-4 at 156.
4 Cellulitis is a skin infection. Defs.’ Ex. K, ECF No. 44-2 at 103 (“‘Cellulitis’ and ‘erysipelas’ refer to diffuse, superficial, spreading skin infections.”); Pl.’s Ex. H, ECF No. 46-4 at 102 (same). Necrotizing fasciitis is a flesh-eating infection. E.g., Lois Shepherd, The End of End-of-Life Law, 92 N.C. L. Rev. 1693, 1736 (2014); Defs.’ Ex. K, ECF No. 44-2 at 107 (“Necrotizing fasciitis is an aggressive subcutaneous infection that tracks along the superficial fascia, which comprises all the tissue between the skin and underlying muscles.”); Pl.’s Ex. H, ECF No. 46-4 at 106 (same). 6 After his condition improved, Mr. Williams was discharged from
the second medical center on or about November 14, 2013. Id.
C. Procedural History
Based on these events, Mr. Williams submitted an
administrative claim—the Standard Form 95—to the VA’s Office of
Regional Counsel in October 2015, FAC, ECF No. 48 at 2 ¶ 7,
claiming that NP McGarrah negligently “failed to screen or test
for the bacterial infection” during his October 30, 2013 visit
to the VAMC, Defs.’ Ex. E, ECF No. 44-2 at 45 (Claim for Damage,
Injury, or Death). On October 16, 2016, Mr. Williams filed the
instant action against the VA. See generally Compl., ECF No. 1.
On February 2, 2018, the Court granted over the VA’s objection
Mr. Williams’ motion to file an amended complaint to add the
United States of America as a defendant. Min. Entry of Feb. 2,
2018. Mr. Williams asserts two counts against the Defendants
under the FTCA: (1) negligence (“Count I”), FAC, ECF No. 48 at 3
¶¶ 17-19, 4 ¶¶ 20-26, 5 ¶¶ 27-32, 6 ¶¶ 33-38, 7 ¶¶ 39-41; and
(2) negligent supervision (“Count II”), id. at 7 ¶¶ 42-45, 8 ¶¶
46-48. Mr. Williams seeks, among other things, an award of
$1,750,000.00. Id. at 10.
After the close of discovery on March 13, 2019, Min. Order
of Jan. 31, 2019, the Defendants moved for summary judgment and
the preclusion of Mr. Williams’ proposed medical expert
opinions, see, e.g., Defs.’ Mot. to Preclude Expert Op. & For
7 Summ. J. (“Defs.’ Mot.”), ECF No. 44 at 1-2; Defs.’ Mem. of Law
in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 44-1 at 1-31.
Mr. Williams filed his opposition brief, see Pl.’s Opp’n, ECF
No. 46 at 1-2; see also Pl.’s Mem. of Law in Opp’n to Defs.’
Mot. (“Pl.’s Mem.”), ECF No. 46-1 at 1-30, and the Defendants
filed their reply brief, see Defs.’ Reply, ECF No. 47 at 1-14.
The motion is ripe and ready for the Court’s adjudication.
II. Legal Standard
Pursuant to Federal Rule of Civil Procedure 56, “[t]he
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The moving party must identify “those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (internal quotation marks omitted). To defeat summary
judgment, the nonmoving party must demonstrate that there is a
genuine issue of material fact. Id. at 324. A material fact is
one that is capable of affecting the outcome of the litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
genuine dispute is one where “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
8 Id. “The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at
255.
III. Analysis
In moving for summary judgment, the Defendants advance
three primary arguments. First, Mr. Williams cannot meet his
burden of proving his FTCA claims based on two separate
theories—negligence and negligent supervision—because he fails
to satisfy his burden of establishing a nationally applicable
standard of care through his proffered expert testimony. Defs.’
Mem., ECF No. 44-1 at 27-28. Next, Mr. Williams fails to
demonstrate that the Defendants breached the standard of care
for cellulitis because NP McGarrah examined Mr. Williams’ left
foot. Id. at 28-30. Finally, Mr. Williams’ negligent supervision
claim fails because he cannot establish the applicable standard
of care, demonstrate that the Defendants breached that standard
of care, and that the Defendants had actual or constructive
knowledge. Id. at 30-31. The Defendants move to preclude
Mr. Williams’ expert opinions on the grounds that the proffered
testimony of his expert witness, Fernando A. Porter, M.D.
(“Dr. Porter”), is inadmissible under Federal Rule of Evidence
702. Id. at 20-27.
Mr. Williams, in contrast, argues that summary judgment is
inappropriate because there are genuine issues of material fact—
9 namely, whether NP McGarrah properly assessed, treated, and
evaluated him, whether NP McGarrah performed a clinical exam on
his left foot, whether NP McGarrah deviated from the applicable
standard of care, and whether NP McGarrah improperly provided
care without supervision. Pl.’s Mem., ECF No. 46-1 at 27-29.
Mr. Williams contends that Dr. Porter is qualified to serve as
an expert, his expert testimony will assist the trier of fact,
his proffered testimony satisfies Rule 702’s requirements, and
his expert opinions are based on reliable principles and
methods. Id. at 22-26. Alternatively, Mr. Williams urges this
Court to grant him leave to either amend Dr. Porter’s proffered
expert opinions or substitute a different medical expert. Id. at
29.
The Court first articulates the applicable legal standards
in this case, and then addresses the parties’ arguments,
concluding that additional, limited expert discovery as to the
applicable standard of care is warranted. The Defendants may
renew their motion for summary judgment and challenges to
Mr. Williams’ medical expert after the close of limited expert
discovery.
A. Negligence Claims Under the Federal Tort Claims Act
Mr. Williams asserts claims under the FTCA. See 28 U.S.C.
§ 1346(b); see also 28 U.S.C. § 2671 et seq. The FTCA contains a
limited waiver of sovereign immunity that allows the United
10 States to be sued for the negligent acts or omissions of its
employees acting within the scope of their employment. See
28 U.S.C. § 1346(b)(1). 5 Under the FTCA, “[t]he United States
shall be liable . . . in the same manner and to the same extent
as a private individual under like circumstances.” 28 U.S.C.
§ 2674. The Supreme Court has “consistently held that
§ 1346(b)’s reference to the ‘law of the place’ means law of the
State—the source of substantive liability under the FTCA.” FDIC
v. Meyer, 510 U.S. 471, 478 (1994) (collecting cases).
Accordingly, “[a] federal district court addressing an FTCA
action must apply the law of the state, presumably in this case
the District of Columbia, in which the alleged tortious conduct
occurred.” Hansen v. Lappin, 800 F. Supp. 2d 76, 81 (D.D.C.
2011) (footnote omitted).
Here, the parties agree that the law of the District of
Columbia applies in this case because the alleged tortious acts
occurred in the District. See, e.g., Defs.’ Mem., ECF No. 44-1
5 Section 1346(b)(1), in relevant part, provides: [T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). 11 at 19-20; Pl.’s Mem., ECF No. 46-1 at 22. Under District of
Columbia law, “[i]n a negligence action predicated on medical
malpractice, the plaintiff must carry a tripartite burden, and
establish: (1) the applicable standard of care; (2) a deviation
from that standard by the defendant; and (3) a causal
relationship between that deviation and the plaintiff’s injury.”
Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 181 (D.C. 1990)
(citations omitted). “Expert testimony is required to prove all
three of the required elements, including causation, except
where the proof is so obvious as to lie within the ken of the
average lay juror.” Providence Hosp., Inc. v. Willis, 103 A.3d
533, 538–39 (D.C. 2014).
“In the District of Columbia, the applicable standard of
care in a medical malpractice action is ‘a national standard,
not just a local custom.’” Nwaneri v. Sandidge, 931 A.2d 466,
470 (D.C. 2007) (quoting Travers v. District of Columbia, 672
A.2d 566, 568 (D.C. 1996)). And “the testifying expert must
establish that the relevant standard of care is followed
nationally, ‘either through reference to a published standard,
discussion of the described course of treatment with
practitioners outside the District at seminars or conventions,
or through presentation of relevant data.’” Porter v. McHugh,
850 F. Supp. 2d 264, 268 (D.D.C. 2012) (quoting Strickland v.
Pinder, 899 A.2d 770, 773-74 (D.C. 2006)). In general, “the
12 applicable standard of care for all health care professionals
and facilities is the ‘course of action that a reasonably
prudent doctor with the defendant’s specialty would have taken
under the same or similar circumstances.’” Bederson v. United
States, 935 F. Supp. 2d 48, 74 (D.D.C. 2013) (quoting
Strickland, 899 A.2d at 773); see also Travers, 672 A.2d at 568
(“The personal opinion of the testifying expert as to what he or
she would do in a particular case . . . is insufficient to prove
the applicable standard of care.”).
B. Challenges to Dr. Porter as an Expert Witness
Before reaching the merits, the Court turns to the
Defendants’ challenge to Dr. Porter’s qualifications as a
medical expert witness and the methodology forming his expert
opinions. See Defs.’ Mem., ECF No. 44-1 at 20-27; see also Pl.’s
Mem., ECF No. 46-1 at 22-23. Federal Rule of Evidence 702
provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. Under Rule 702, trial judges serve as
13 gatekeepers to ensure that the methodology underlying the expert
testimony is valid and the expert’s conclusion is based on “good
grounds.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
590 (1993); see also Haarhuis v. Kunnan Enters., Ltd., 177 F.3d
1007, 1015 (D.C. Cir. 1999) (“[T]he decision whether to qualify
an expert witness is within the broad latitude of the trial
court and is reviewed for abuse of discretion.”).
A party may raise challenges to experts in pre-trial
motions, which are commonly referred to as “Daubert motions”
based on the Supreme Court’s decision on the admissibility of
expert testimony in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). 6 Given that the trial court has the
discretion “to decide whether or when special briefing or other
proceedings are needed to investigate reliability,” Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152 (1999), the Court may hold
a Daubert hearing, United States v. Machado-Erazo, 950 F. Supp.
2d 49, 52 (D.D.C. 2013), aff’d, 901 F.3d 326 (D.C. Cir. 2018).
Here, it is undisputed that Dr. Porter graduated from
Florida State University College of Medicine, is licensed to
practice medicine in twelve states and the District of Columbia,
6 “Under Daubert, the district court is required to address two questions, first whether the expert’s testimony is based on ‘scientific knowledge,’ and second, whether the testimony ‘will assist the trier of fact to understand or determine a fact in issue.’” Meister v. Med. Eng’g Corp., 267 F.3d 1123, 1126 (D.C. Cir. 2001) (quoting Daubert, 509 U.S. at 592). 14 and is a physician at Medstar Health, Doctor on Demand, and
Medstar Prompt Care. Pl.’s Ex. C, ECF No. 46-4 at 34-35. It is
uncontested that Dr. Porter serves as the Medical Director of
Life Ambulance. Id. at 34. The Defendants, however, contend that
Dr. Porter is unqualified on four grounds: (1) “[he] is not
qualified to render an expert opinion on the topic of the
appropriate standard of care in connection with cellulitis or
other skin-related infections,” Defs.’ Mem., ECF No. 44-1 at 20,
given that “there is no evidence that [Mr. Williams] had cellulitis
on October 30, 2013,” id. at 21; (2) “[he] has never been
qualified as an expert by any tribunal,” id. at 20; (3) “[h]e
has not authored any publications during his nine years as a
doctor,” id.; and (4) “[h]e is not an urgent care doctor, an
emergency care doctor, an infectious diseases specialist, or a
podiatrist,” id.
Mr. Williams disagrees, arguing that Dr. Porter is
qualified because: (1) he has served in “urgent care and primary
care roles,” id.; and (2) he has “provided care for over twenty
thousand . . . patients.” Pl.’s Mem., ECF No. 46-1 at 22.
Mr. Williams goes on to argue that:
Dr. Porter’s educational credentials, licensure in twelve . . . states and the District of Columbia, volume of practice, management experience, and administrative policy experience qualify him to articulate the appropriate level of care that should be provided in the urgent and primary care
15 settings and conversely affords him the ability to outline the clinical failings of Defendants, specifically NP McGarrah.
Id. at 23. Mr. Williams points out that Dr. Porter testified in
his deposition that “he has diagnosed cellulitis too many times
to count.” Id. But the Defendants argue that Dr. Porter
testified that “cellulitis was a minuscule portion of his home
care and telemedicine practice.” Defs.’ Reply, ECF No. 47 at 9.
Here, the Defendants acknowledge that “[c]hallenges to
expert testimony are typically resolved in motions in limine
prior to trial.” Defs.’ Mem., ECF No. 44-1 at 20. Nonetheless,
the Defendants cite two cases in this District to support the
proposition that “Daubert motions may be appropriate in the
context of summary judgment.” Id. (citing Crowley v. Perdue, 318
F. Supp. 3d 277, 292 (D.D.C. 2017); Carmichael v. West, Civ. A.
No. 12-1969 (BAH), 2015 WL 10568893, at *7 (D.D.C. Aug. 31,
2015)). As the court explained in Carmichael, however, “[c]ourts
have expressed concern . . . about the use of the Daubert
analysis at the summary judgment stage, instructing that
‘[b]ecause the summary judgment process does not conform well to
the discipline that Daubert imposes, the Daubert regime should
be employed only with great care and circumspection at the
summary judgment stage.’” 2015 WL 10568893, at *7 (quoting
Cortes–Irizarry v. Corporacion Insular de Seguros, 111 F.3d 184,
188 (1st Cir. 1997)).
16 Faced with a challenge to expert witnesses at the summary
judgment stage, a member of this Court declined to consider such
an argument and “prefer[red] to evaluate [that] argument in a
motion in limine and at a Daubert hearing, instead of while
resolving a motion for summary judgment.” Landmark Health Sols.,
LLC v. Not For Profit Hosp. Corp., 950 F. Supp. 2d 130, 138
(D.D.C. 2013); see also Sloan v. Urban Title Servs., Inc., 770
F. Supp. 2d 227, 238 (D.D.C. 2011) (“The proper vehicle for
raising such issues is a motion in limine filed in the context
of pretrial proceedings and, if necessary, the Court shall
consider a request that a Daubert hearing be held to evaluate
[the expert’s] proffered testimony.”). This Court is guided by
the well-established principle that “[t]rial courts are afforded
substantial latitude in deciding the procedure necessary to test
the sufficiency of a potential expert.” Landmark Health Sols.,
LLC, 950 F. Supp. 2d at 138 (citation and internal quotation
marks omitted). This Court will not consider the Defendants’
arguments challenging Dr. Porter as an expert at this juncture
without a Daubert hearing. See Kumho Tire Co., 526 U.S. at 152
(explaining that trial judges have “latitude in deciding how to
test an expert’s reliability, and to decide whether or when
special briefing or other proceedings are needed to investigate
reliability”). The Defendants may raise its arguments
challenging Dr. Porter as an expert and his proposed expert
17 testimony “via a [motion in limine] followed by the Daubert
hearing, to be scheduled shortly thereafter.” Landmark Health
Sols., LLC, 950 F. Supp. 2d at 138.
C. Whether Mr. Williams Establishes the Applicable Standard of Care
Neither party disputes that Mr. Williams must prove the
standard of care based on expert testimony. See Defs.’ Mem., ECF
No. 44-1 at 19, 21; see also Pl.’s Mem., ECF No. 46-1 at 22. But
the parties disagree on the applicable standard of care. Compare
Pl.’s Mem., ECF No. 46-1 at 18, with Defs.’ Mem., ECF No. 44-1
at 7, 21-25. Mr. Williams argues that the Defendants failed to
meet the following standard of care identified in Dr. Porter’s
expert report:
[E]valuation and treatment for cellulitis at minimum, would have been to evaluate the extremity or area of concern with a history and physical exam consisting of, but not limited to, the appearance of the skin, observation of fluid collection, color and collection of fluid for culture if drainage was present, temperature of the skin compared to other areas, sensation and laboratory testing. In addition to not practicing within the standard of care there were no follow-up instructions given to advise Mr. Williams if or when to come back if he were to have complications, worsening symptoms or incomplete/poor response to the treatment given.
If NP McGarrah would have performed even some of the aforementioned exams or test to the lower extremity, or followed up via phone call or in person with Mr. Williams, the chances of earlier detection, treatment, and reduce
18 suffering would have been improved for Mr. Williams. It is very likely that if a lower extremity exam had been properly performed, evaluated and treated with the proper spectrum of antibiotics, that Mr. Williams would not have had to undergo lifesaving medical treatment that left him with a career ending outcome (as a personal trainer) due to significantly decreased physical capacity, overall decrease in quality of life, chronic swelling, extremity and joint pain, and neurological dysfunction.
Id. at 18 (quoting Dr. Porter’s Expert Report, Pl.’s Ex. C, 46-4
at 31-32).
The Defendants argue that Dr. Porter’s proposed standard of
care is the “wrong” one, Defs.’ Mem., ECF No. 44-1 at 22,
because “the standard of care must involve the appropriate
treatment for a patient with a puffy thyroid and a swollen left
foot,” id. at 23. In the Defendants’ view, Dr. Porter advocates
for “a standard of care for the treatment of cellulitis, which
is off the mark because there is no evidence that [Mr. Williams]
had cellulitis on October 30, 2013.” Id. at 21. The Defendants
contend that “[e]ven if [Mr. Williams] did suffer from
cellulitis on that day, Dr. Porter’s proposed standard is
inadmissible because it is not a nationally recognized standard,
but rather his own personal view of what the treatment for
cellulitis should have been.” Id. According to the Defendants,
“[a] complaint of stiffness, swelling and skin with ‘a little
bit of reddish tint’ does not necessarily mean that [Mr.
19 Williams] had, or would have, cellulitis in his left foot.” Id.
at 23. The Defendants point out that Dr. Porter “grounded his
proposed standard of care on a condition that was not apparent
when [NP] McGarrah examined [Mr. Williams].” Id.
In response, Mr. Williams argues that “[t]here is
absolutely nothing in NP McGarrah’s treatment note that supports
[the] Defendants’ [new-found] contention that [NP McGarrah] did
in fact examine [Mr. Williams’] left foot on October 30, 2013.”
Pl.’s Mem., ECF No. 46-1 at 23. According to Mr. Williams,
“Dr. Porter will assist the trier of fact in understanding the
national standard of care in a clinical setting for a healthy
active adult (in this instance a person who completed a twelve
mile obstacle course), having no known infirmities but for some
reason is ambulating with a cane due to swelling and stiffness
in a lower extremit[y].” Id. at 24.
The Defendants argue—and Mr. Williams does not dispute—that
Dr. Porter’s proposed standard of care regarding cellulitis was
the wrong standard of care. Defs.’ Reply, ECF No. 47 at 5. In
the absence of expert testimony establishing the applicable
standard of care, Mr. Williams’ negligence claims fail. See,
e.g., Burke v. Air Serv Int’l, Inc., 685 F.3d 1102, 1105–06
(D.C. Cir. 2012) (explaining that a plaintiff’s failure to
present expert testimony to establish the standard of care may
justify the grant of summary judgment in favor of the
20 defendant); Richardson v. Korson, 905 F. Supp. 2d 193, 197
(D.D.C. 2012) (explaining that a plaintiff “must present
evidence on the standard of care to survive summary judgment on
his negligence claim”). For the reasons explained below,
however, the Court will re-open discovery for the limited
purpose of permitting Mr. Williams to supplement Dr. Porter’s
expert report or retain a new expert as to the applicable
standard of care.
D. Dr. Porter’s New Expert Opinions
Without addressing the issue of whether the standard of
care regarding cellulitis was the correct one, Mr. Williams
presents two new opinions in his opposition brief. See Pl.’s
Mem., ECF No. 46-1 at 23-24; see also Defs.’ Reply, ECF No. 47
at 5-6. The Defendants argue that Mr. Williams attempts to amend
or supplement his expert disclosures without filing a proper
motion to do so, and he attempts to rely on the two new opinions
that are untimely and inappropriate. Defs.’ Reply, ECF No. 47 at
6-8.
Under Federal Rule of Civil Procedure 26, the parties must
disclose their expert witnesses, see Fed. R. Civ. P.
26(a)(2)(A), and provide an expert report for each expert
containing “a complete statement of all opinions the witness
will express and the basis and reasons for them”; “the facts or
data considered by the witness in forming them”; and “any
21 exhibits that will be used to summarize or support [the
opinions],” Fed. R. Civ. P. 26(a)(2)(B) (emphasis added). Under
Rule 26(a)(2)(D), each expert report must be disclosed “at the
times and in the sequence that the court orders.” Fed. R. Civ.
P. 26(a)(2)(D). A party’s failure to disclose information as
required by Rule 26(a) triggers Rule 37.
Under Rule 37(b)(2)(A)(ii), the Court may prohibit a party
from the introduction of designated matters into evidence if the
party fails to obey a discovery order. Fed. R. Civ. P.
37(b)(2)(A)(ii). A party’s failure to make the Rule 26(a)
disclosures results in the party not being permitted to use that
information, “unless the failure was substantially justified or
is harmless.” Fed. R. Civ. P. 37(c)(1). “Rule 37(c)(1) is a
self-executing sanction.” Norden v. Samper, 544 F. Supp. 2d 43,
49 (D.D.C. 2008). “The proponent of the evidence bears the
burden of showing that the failure to disclose the evidence ‘was
substantially justified or is harmless.’” Moore v. Napolitano,
926 F. Supp. 2d 8, 25 n.12 (D.D.C. 2013) (quoting Fed. R. Civ.
P. 37(c)(1)).
Here, it is undisputed that the new expert opinions in
Mr. Williams’ opposition brief were disclosed after the close of
discovery. Mr. Williams’ first new opinion is that “[Dr. Porter]
will use the VA’s own guidelines, a national standard, which
clearly states ‘[m]edical documentation is required for all
22 services provided to a Veteran under the [VA].’” Pl.’s Mem., ECF
No. 46-1 at 23 (quoting Pl.’s Ex. F, ECF No. 46-4 at 60).
Dr. Porter relies on the TriWest HealthCare Alliance’s guidance—
“Medical Documentation Requirements” and “Quick Reference Guide
– All Regions”—that was not included in his expert disclosures.
See id. at 22; see also Pl.’s Ex. F, ECF No. 46-4 at 60-63.
Relying on that guidance, Mr. Williams contends that NP
McGarrah’s medical notes failed to meet the “minimum
requirements for content of medical documentation or records,
for VA staff.” Pl.’s Mem., ECF No. 46-1 at 22. Specifically,
Mr. Williams argues that NP McGarrah’s notes did not satisfy a
portion of the “Quick Reference Guide”: “an executive summary of
the encounter to include any procedures performed and
recommendations for further testing or follow-up (i.e. discharge
summary for inpatient).” Id. (quoting Pl.’s Ex. F, ECF No. 46-4
at 63).
The Defendants respond that the “Quick Reference Guide”
does not satisfy Rule 702. The Defendants point out that:
(1) the “Quick Reference Guide” is dated “January 4, 2019, more
than four years after [Mr. Williams’] visit to the [VAMC]”;
(2) Mr. Williams did not disclose the document in his expert
disclosures; and (3) Mr. Williams attached the document as an
exhibit to his opposition brief after Dr. Porter’s deposition.
Defs.’ Reply, ECF No. 47 at 7. The Defendants argue that
23 Mr. Williams alleges for the first time in his opposition brief
that “his injuries were due to a breach of the standard of care
relating to medical documentation, and [Mr. Williams] fails to
explain how such a breach could possibly have caused his
injuries.” Id.
For the second new opinion identified in his opposition
brief, Mr. Williams contends that Dr. Porter will use
“nationally accepted standards” to: (1) “outline the appropriate
clinical testing and laboratory testing that should occur in
said circumstance and the appropriate manner in which to
escalate the treatment of the patient”; and (2) “assist the
trier of fact in understanding the national standard of care in
a clinical setting for a healthy active adult (in this instance
a person who completed a twelve mile obstacle course), having no
known infirmities but for some reason is ambulating with a cane
due to swelling and stiffness in a lower extremit[y].” Pl.’s
Mem., ECF No. 46-1 at 24. Dr. Porter relies on a publication,
entitled “Practice Guidelines for the Diagnosis and Management
of Skin and Soft Tissue Infections: 2014 Update by the
Infectious Diseases Society of America,” which was published in
2014. Pl.’s Ex. H, ECF No. 46-4 at 88-130. Specifically,
Mr. Williams cites to subsection IV—“What Is Appropriate for the
Evaluation and Treatment of Erysipelas and Cellulitis?”—in that
publication. Id. (citing Pl.’s Ex. H, ECF No. 46-4 at 93-104).
24 According to Mr. Williams, Dr. Porter “supplemented his
deposition testimony with the article [outlining] where he
received his authority.” Pl.’s Mem., ECF No. 46-1 at 26.
The Defendants disagree with Mr. Williams’ assertion that
Dr. Porter supplemented his deposition testimony, noting that “a
party may [not] ‘supplement’ an expert’s sworn deposition
testimony by subsequently producing documentation that had not
been previously disclosed.” Defs.’ Reply, ECF No. 47 at 8 n.3.
With respect to the second of the two new opinions, the
Defendants point out that the “publication, which also was
produced to [the] Defendants after Dr. Porter’s deposition,
involves a summary of recommendations to new guidelines for skin
and soft tissue infections, and was issued in July 2014, more
than eight months after Plaintiff’s visit to the [VAMC].” Id. at
7-8. The Defendants argue that “Dr. Porter must establish a
nationally applicable standard of care” and “Dr. Porter has not
done that.” Id. at 7.
Asserting that Mr. Williams attempts to “shift the standard
of care from cellulitis to ‘skin and soft tissue infections,’”
the Defendants contend that “there is no evidence that
[Mr. Williams] had cellulitis or any other skin or soft tissue
infection on October 30, 2013” because “[Mr. Williams] testified
that his left foot was stiff, swollen and had a ‘reddish’
color.” Id. at 8. The Defendants go on to argue that
25 Mr. Williams should not be allowed to offer an expert opinion
about the standard of care for skin-related infection treatment
without factual support, and that the Court should reject
Mr. Williams’ “unjustified and untimely effort to replace the
withdrawn opinions with new, undisclosed, equally inadmissible
opinions.” Id.
Although the Court agrees that Mr. Williams’ disclosure of
the expert disclosures and new opinions was untimely, the
relevant question is whether Mr. Williams’ failure to disclose
the new expert opinions and the supporting documents was
harmless. See Fed. R. Civ. P. 37(c)(1) (“If a party fails to
provide information . . . as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.”).
Neither party focuses on the issue of whether the failure to
disclose was substantially justified. See Pl.’s Mem., ECF No.
46-1 at 15-26; see also Defs.’ Reply, ECF No. 47 at 6-8. The
Defendants do not argue—and the Court cannot find—that the
disclosure of the late expert disclosures was not harmless. See
Defs.’ Reply, ECF No. 6-8. While the Defendants contend that the
expert disclosures and new expert opinions were untimely, id. at
6, 8, the Defendants fail to mention the limited exception in
Rule 26(e), see id.
26 Rule 26(e) provides that “[a] party who has made a
disclosure under Rule 26(a) . . . must supplement or correct its
disclosure or response . . . in a timely manner if the party
learns that in some material respect the disclosure or response
is incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to the other
parties during the discovery process or in writing.” Fed. R.
Civ. P. 26(e)(1). “This rule ‘permits supplemental reports only
for the narrow purpose of correcting inaccuracies or adding
information that was not available at the time of the initial
report.’” Richardson, 905 F. Supp. 2d at 199 (quoting Minebea
Co. v. Papst, 231 F.R.D. 3, 6 (D.D.C. 2005)). And “supplemental
reports are permitted under Rule 26(e)(1) only in the following
situations: (1) upon court order; (2) when the party learns that
the earlier information is inaccurate or incomplete; or (3) when
answers to discovery requests are inaccurate or incomplete.”
Minebea Co., 231 F.R.D. at 6.
It is undisputed that the “Quick Reference Guide”
supporting one of the new expert opinions was not available at
the time of Dr. Porter’s initial expert report, dated August 15,
2018, because the “Quick Reference Guide” bears the date of
January 4, 2019. See Pl.’s Ex. C, ECF No. 46-4 at 27; see also
Pl.’s Ex. F, ECF No. 46-4 at 60. Discovery, however, closed on
March 13, 2019, Min. Order of Jan. 31, 2019, and the Court
27 directed Mr. Williams to produce certain requested documents to
the Defendants by no later than April 5, 2019, Min. Order of
Apr. 1, 2019. There is no dispute that the article—“Practice
Guidelines for the Diagnosis and Management of Skin and Soft
Tissue Infections: 2014 Update by the Infectious Diseases
Society of America”—was available to Dr. Porter at the time he
submitted his expert report given that the article was published
in 2014. See Pl.’s Ex. C, ECF No. 46-4 at 27; see also Pl.’s Ex.
H, ECF No. 46-4 at 88. Nonetheless, the Court cannot find that
the article’s late disclosure “blindside[d] [the] [D]efendants
with new information” in contravention to Rule 26’s prohibition
of unfair surprises at trial. Dormu v. District of Columbia, 795
F. Supp. 2d 7, 28 n.16 (D.D.C. 2011). But the “new opinions”
could have blindsided the Defendants. Id.
That being said, “the trial court [has] wide latitude to
receive evidence as it sees fit.” United States v. Microsoft
Corp., 253 F.3d 34, 101 (D.C. Cir. 2001). “[T]he Court may
‘exercise considerable discretion in handling discovery
matters,’ including deciding whether to reopen or extend
discovery.” United States v. Kellogg Brown & Root Servs., Inc.,
285 F.R.D. 133, 137 (D.D.C. 2012) (quoting Food Lion, Inc. v.
United Food & Commercial Workers Int’l Union, 103 F.3d 1007,
1012 (D.C. Cir. 1997)); accord Barnes v. District of Columbia,
289 F.R.D. 1, 7 (D.D.C. 2012) (“Deciding whether to extend
28 discovery is within the sound discretion of the trial court.”).
With these principles in mind, the Court will permit
additional, limited discovery in this case. “While it is
certainly disruptive to the efficient management of this case to
re-open discovery—especially where [Mr. Williams] and his expert
had countless opportunities to remedy deficiencies in the report
during the extended period for discovery—the Court finds that
the harm to [Mr. Williams] of precluding the [late-filed
disclosures and opinions] outweighs this disruption.”
Richardson, 905 F. Supp. 2d at 200. There is no question that
Mr. Williams bears the burden of establishing the nationally
applicable standard of care based on expert testimony, and the
Court cannot find that Mr. Williams has met his burden to do so.
But the Defendants do not argue that prejudice will ensue from
Mr. Williams’ request for leave to either amend Dr. Porter’s
testimony or substitute a different expert. See Defs.’ Reply,
ECF No. 47 at 14; see also Pl.’s Mem., ECF No. 46-1 at 29.
The Court discerns no harm or prejudice to the Defendants
because the Court has not set a trial date in this case. See
Richardson, 905 F. Supp. 2d at 200 (finding no prejudice where a
party submitted untimely supplemental expert materials and no
trial date had been set by the court). The mere passage of time
is not enough to demonstrate prejudice where defendants, as
here, do “not describe any significant prejudice [that they]
29 would suffer from reopening discovery for the limited purpose of
adding [a medical] expert.” Watt v. All Clear Bus. Sols., LLC,
840 F. Supp. 2d 324, 327 (D.D.C. 2012). The Court will re-open
discovery for the limited purpose of permitting Mr. Williams to
either file a supplemental expert report or retain a new expert
witness for him to present expert testimony to establish the
applicable standard of care. Accordingly, the Court GRANTS
Mr. Williams’ request for leave to amend his expert opinions or
disclose a new expert, and DENIES WITHOUT PREJUDICE the
Defendants’ motion for summary judgment. 7 The Defendants may
renew their motion after the limited discovery.
* * *
Having found that Mr. Williams did not comply with the
applicable rules governing discovery, “[i]t is within the
Court’s discretion to impose sanctions—e.g., the imposition of
costs—on a party who has failed to comply with the rules
governing discovery.” Richardson, 905 F. Supp. 2d at 201
(ordering the plaintiff to bear costs of his expert’s deposition
7 Having decided that additional, limited discovery is warranted, the Court need not address the Defendants’ remaining arguments that: (1) the Defendants did not breach the standard of care, see Defs.’ Mem., ECF No. 44-1 at 28-30;(2) Mr. Williams’ negligent supervision claim fails “because [he] cannot establish the applicable standard of care or demonstrate that [the] Defendant[s] breached that standard of care,” id. at 30; and (3) Mr. Williams cannot demonstrate that the Defendants had actual or constructive knowledge, id. at 30-31. 30 where his expert made untimely supplemental submissions). The
Court therefore orders Mr. Williams to bear the cost of his
expert’s deposition.
IV. Conclusion
For the reasons set forth above, the Court GRANTS
Mr. Williams’ request for leave to amend his expert opinions or
disclose a new expert, and DENIES WITHOUT PREJUDICE Defendants’
Motion to Preclude Expert Opinions and for Summary Judgment.
Mr. Williams shall bear the costs of his expert’s deposition. A
separate Order accompanies this Memorandum Opinion.
SO ORDERED
Signed: Emmet G. Sullivan United States District Judge March 20, 2020