Boos v. Marks

Daniel Boos, Appellant, v. Carl E. Marks, Appellee.

No. 122, 788

Court of Appeals of Kansas

July 16, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Wyandotte District Court; William P. Mahoney, judge.

Stephen G. Sanders and Alexander C. Melin, of Sanders.Law, of Kansas City, Missouri, for appellant.

Mark E. Meyer, of Lee's Summit, Missouri, for appellee.

Before Warner, P.J., Buser and Cline, JJ.

MEMORANDUM OPINION

Per Curiam.

After Daniel Boos missed his deadline for filing expert witness disclosures in his personal injury case, he tried to correct his mistake on the eve of trial. After noting the protracted history of the litigation, the district court denied Boos' untimely effort to offer testimony from his treating physician which was outside the scope of that physician's treatment of Boos and, in fact, contrary to that physician's own treatment records. The court then dismissed Boos' case under K.S.A. 2020 Supp. 60-241 after Boos' counsel essentially admitted proceeding to trial without a medical expert would be futile. Finding no error, we affirm the district court's decision to dismiss with prejudice and remand to the district court to consider the motion to substitute parties.

Facts

Boos and Carl E. Marks were involved in a collision on May 7 2012. On May 20, 2016, Boos sued Marks in the Circuit Court of Jackson County, Missouri. That lawsuit was removed to federal court, where Boos deposed Marks, then dismissed the case. Boos then filed this personal injury action on October 20, 2017, against Marks and another defendant (who was later dismissed), alleging Marks negligently caused the 2012 collision.

On April 4, 2018, the district court entered a case management conference order, setting the trial date on August 12, 2019. This order also addressed the deadline and content of the parties' expert witness designations:

"The plaintiff shall designate expert witnesses on or before October 1, 2018; the defendant shall designate expert witnesses on or before December 3 2018. In making a designation of expert witnesses, a party shall identify the witness by name and address and shall state the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion."

On April 13, 2018, Boos served answers to Marks' interrogatories. In response to an interrogatory asking Boos to identify each person he expected to call as an expert witness at trial, Boos generically answered that his medical providers would, in various respects, testify to the facts of the collision, causation, and Boos' injuries. Another interrogatory asked Boos to state the name and address of each doctor from which he sought medical attention for his injuries. In response, Boos listed five doctors, including Dr. Atul Patel.

Both parties included the names of the medical providers listed in Boos' interrogatory answers (including Dr. Patel) on their pretrial witness lists, and both identified each of these witnesses (including Dr. Patel) simply as "Medical Provider of Plaintiff." Similarly, both parties named these same witnesses (including Dr. Patel) as trial witnesses in their pretrial questionnaires. Boos did not identify Dr Patel as an expert witness in any of these filings.

On July 12, 2019, the parties agreed to continue the jury trial from August 12, 2019, to October 15, 2019, and the district court reflected the new trial date in an amended case management conference order. The deadlines for expert witness designations remained the same.

On October 15, 2019, the district court continued the jury trial for a second time and set a new trial date of November 18, 2019.

On November 7, 2019, another attorney with the same firm as Boos' original counsel entered his appearance as co-counsel for Boos. On November 8, 2019, Boos' counsel filed a motion for a hearing and ruling on the admissibility of Dr. Patel's testimony. This motion claimed Boos' new co-counsel had just been hired by the firm on November 1, 2019, and, in his review of the case, he realized Dr. Patel had not been "formally designated as an expert witness." Boos' counsel requested a hearing and ruling from the district court on whether Dr. Patel may testify not just as a treating physician but also as to his opinions in the matter. According to the motion, Boos anticipated Dr. Patel would testify about his opinions on (1) the causation of Boos' injuries; (2) the reasonableness, relatedness, and necessity of Boos' medical bills and treatment; and (3) Boos' future prognosis and treatment.

Marks objected to allowing Dr. Patel to testify beyond the scope of the care and treatment he provided Boos, as recorded in his medical records. Counsel participated in a conference call with the district court on November 14, 2019, in which the court cancelled the jury trial set for that week, directed Boos to file an expert witness designation, directed Marks to respond to the expert witness designation, and set a hearing for November 19, 2019.

On November 15, 2019, Boos moved to designate an expert witness out of time, attaching a proposed expert witness designation for Dr. Patel. Boos admitted to missing the expert deadline but claimed the error was harmless since the trial setting had now been cancelled, thus leaving time for Marks to depose Dr. Patel and designate a counter expert. Boos also claimed Marks would not be surprised by Dr. Patel's opinions. In this motion, Boos anticipated Dr. Patel would testify that the accident caused an exacerbation or activation of Boos' previously asymptomatic shoulder condition, that Boos' medical treatment and the bills incurred, from several different doctors, clinics, and healthcare providers, were reasonable, related, and necessary, and about his prognosis that Boos' shoulder was likely to continue to deteriorate. In the designation of an expert witness attached to the motion, Boos expanded the anticipated scope of Dr. Patel's testimony even further by also noting Dr. Patel would testify about future treatment, Boos' condition before and after the collision at issue, any limitations associated with Boos' condition and injuries, what Boos told him about the collision, the diagnosis in his and his clinic's records and the records of other medical providers provided in the case, and future treatment that Boos will need, among other topics.

Marks responded by describing the extreme prejudice he would suffer if the district court granted Boos' motion. He pointed out Dr. Patel's medical records did not reflect the proposed testimony and opinions in Boos' motion. He noted Dr Patel had only seen Boos twice, both times in 2016, and the proposed opinions were "diametrically opposed" to what Dr. Patel stated in those records. For example, Dr. Patel's medical records stated Boos "does not recall any accident or injury" relating to his shoulder pain, which Boos apparently claimed he had been experiencing for the past three years (placing the onset around a year after the 2012 accident). Now, Boos proposed to allow Dr. Patel to testify about "what [Boos] told him regarding the collision at issue." When Dr. Patel treated Boos in 2016, he diagnosed Boos with degenerative joint disease and "recommended a non-surgical approach." Now, Boos sought to introduce testimony that Dr. Patel believed Boos' 2012 accident caused the injury instead and also that Boos would require surgery.

Marks also noted the extensive procedural history of the parties' dispute in his response, claiming he would suffer prejudice if the case were again delayed. He pointed out the accident occurred seven years prior, Marks had already been deposed twice (once in the federal suit and once in this suit), and the trial in this matter had been continued three times. Considering these facts and circumstances, Marks moved to dismiss the case.

The district court heard Boos' motion on November 19, 2019. At the hearing, Boos' counsel again admitted that he failed to designate Dr. Patel as an expert witness by the expert witness designation deadline. Boos' counsel stated that, when Dr. Patel saw Boos, there was no plan or intent to designate Dr. Patel as an expert, and "[h]e was just simply a treater." Boos' counsel also represented that, when Dr. Patel treated Boos, he only had "the small amount of records he needed immediately to treat Mr. Boos." Boos' counsel admitted if he were not allowed to designate Dr. Patel as an expert, Dr. Patel's testimony would be extremely limited. He added, "And the effect, Your Honor, is predictable. All the lawyers in the room know what's going to happen if we're not allowed to designate him." Boos' counsel did not deny Marks' allegations about the matter's lengthy procedural history. Instead, he admitted, "This case has taken a long time. It's taken too long."

The district court expressed concern at the hearing about the sufficiency of the evidence to support Boos' claims, if the matter were to proceed to trial, given the limited nature of Dr. Patel's testimony if Boos were not allowed to belatedly designate him as an expert. Boos' counsel candidly responded by saying, "I think we'd be going through the motions to know the ending that we already can predict." He admitted "[h]aving a trial under these conditions I think would be almost the same result if not the same result as a dismissal." Boos' counsel did not dispute Marks' position that Dr. Patel's proposed testimony was not supported by his own medical records. Instead, he claimed Marks could have filed a dispositive motion, which would have allowed the court to address the absence of evidence to support Boos' claims at that time. He argued, "Dismissal now would be a harsh result...