Singh v. Vanderbilt Univ. Med. Ctr.

GOBIND SINGH, M.D., Ph.D., Plaintiff, v. VANDERBILT UNIVERSITY MEDICAL CENTER, et al., Defendants.

NO. 3:17-cv-00400

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

July 8, 2021

JUDGE RICHARDSON

MEMORANDUM AND ORDER

Currently pending before the Court is Plaintiff's "Motion to Substitute a Treating Physician (Contested)" (Doc. No. 151, "Motion"). Via the Motion, Plaintiff asks the Court to substitute Dr. Natalie Cusano, "only as a treating physician," in place of his previously disclosed treating physicians Dr. Gary Wand and Dr. Susan Henley. The upshot of such "substitution," should it be permitted, is that Dr. Cusano would be permitted to testify as trial, whereas otherwise she would not.

On August 25, 2020, Magistrate Judge Holmes denied Plaintiff's motion to disclose Dr. Cusano as an expert witness or as a (treating physician) fact witness. (Doc. No. 132). Plaintiff thereafter filed a motion for review of that decision and this Court denied it on October 26, 2021. (Doc. No. 141). Magistrate Judge Holmes's opinion stated:

Although not entirely clear, Plaintiff also apparently seeks to use expert testimony of two additional witnesses. This requested relief further convolutes the question before the Court. Plaintiff does not clearly identify these additional witnesses in his motion. Instead, he cites to an exhibit that is embedded in the 143-page filing. See Docket No. 130 at 6 and 67-72. The two additional intended experts appear to be Natalie Cusano, who is Plaintiff's current treating endocrinologist, and Thaddeus Wandel, who was previously disclosed as a fact witness.

Apparently (although, again not entirely clear), Plaintiff made no effort to supplement his discovery responses to include Dr. Cusano as an additional treating physician, even though she reportedly began care of Plaintiff in April of 2020. Had Plaintiff timely supplemented his discovery responses, Dr. Cusano would be permitted to offer testimony as a treating physician. However, Plaintiff offers no specific explanation for not having previously disclosed Dr. Cusano as a treating physician. Presumably, Plaintiff relies on his other arguments about the failings of his last attorney. For the reasons already stated, Plaintiff has no refuge there. Nevertheless, the Court does not have the benefit of Plaintiff's entire deposition, although Plaintiff was likely only deposed once in April 2019, prior to beginning care with Dr. Cusano. Nevertheless, if Plaintiff previously disclosed Dr. Cusano as a treating physician in a later deposition or otherwise, then Dr. Cusano may testify in that capacity but not as an expert, including not as to her opinion about a purported misdiagnosis in 2015. Otherwise, if Dr. Cusano was not previously disclosed as a treating physician, she may not testify at all. Discovery responses must be supplemented "in a timely" manner, and if Plaintiff's July 31, 2020 supplemental discovery responses identify Dr. Cusano for the first time when she has been his treating physician since April 2020, that is not timely. Fed. R. Civ. P. 26(e)(1)(A).

. . .

For all these reasons, Plaintiff's motion to extend the time for expert disclosures and discovery is denied. Plaintiff shall not be permitted to use the expert reports of Charles Baum or Natalie Cusano. Nor may Defendants use those reports for any reason, including impeachment. If Dr. Cusano was previously identified as a treating physician, she may testify in that capacity, but not as to any expert opinions, including her opinion about any previously purported misdiagnoses by other physicians or healthcare providers.

(Doc. No. 132 at 11-13).

Plaintiff contends that circumstances beyond his control now warrant the substitution of Dr. Cusano for Drs. Henley and Wand as a treating physician witness to enable Dr. Cusano to testify at trial, which is scheduled to begin on September 14, 2021. (Doc. No. 151 at 4-5). Defendants responded in opposition to the Motion (Doc. No. 155, "Response"), and Plaintiff filed a reply (Doc. No. 156, "Reply"). The Motion is now ripe for review.

LEGAL STANDARD

Rule 16 governs modifications to scheduling orders. See Century Indem. Co. v. Begley Co., 323 F.R.D. 237, 240 (E.D. Ky. 2018). Pursuant to Rule 16, a scheduling order "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "In order to demonstrate good cause, the [movant] must show that the original deadline could not reasonably have been met despite due diligence and that the opposing party will not suffer prejudice by virtue of the amendment." Ross v. Am. Red Cross, 567 F. App'x 296, 306 (6th Cir. 2014); see also Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003) (explaining that the good cause analysis also includes consideration of potential prejudice to the non-movant).

Additionally, Federal Rule of Civil Procedure 37 provides (among other things) that where a party fails to "identify a witness as required by Rule 26(a) or (e), "the party is not allowed to use that information or witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). One way to fail to identify a witness as required by Rule 26(a) or (e) is to identify the witness belatedly, i.e., outside of the timeframes (whether exact or more malleable)¹ set forth in Rule 26(a) and (e).² And it is in this sense that Plaintiff has failed to identify a witness (Dr. Cusano) as required by Rule 26(a) or (e) and thus is prohibited by Rule 37 from using the witness's testimony unless the failure was substantially justified or harmless.³

Five factors are used in determining whether an omitted or late disclosure is "substantially justified" or "harmless":

(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence.

Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015) (quoting Russell v. Absolute Collection Serve., Inc., 763 F.3d 385, 396-97 (4th Cir. 2014)).

One district court provided a cogent discussion—which the Court believes to be entirely applicable in the Sixth Circuit—of the law as it relates to requests to take depositions for trial purposes after expiration of the discovery deadline:

It is well-established that "there is no right to a 'trial deposition' separate and apart from the 'deposition' rules expressly found in Rules 30 through 32. Parties who make the tactical decision not to preserve deposition testimony during the discovery phase take the risk that the testimony will not be presented if the witness is unable or unwilling to appear at trial." Smith v. Royal Caribbean Cruises, Ltd., 302 F.R.D. 688, 692 (S.D. Fla. 2014) (rejecting request to take trial depositions beyond the discovery period). This principle is supported by important policy considerations:

The strongest reason why this principle must apply is that the modern Federal Rules of Civil Procedure expressly confer very broad and comprehensive discretion by district courts over the management of all pretrial activities, especially discovery and scheduling.... If trial depositions are not governed by standard discovery deadlines required by Rule 16 and the procedures for "depositions" set forth in Rule 30 and 32, parties could wait until after discovery closes to take depositions by merely designating the depositions "for trial use." Consequently, permitting parties as a matter of course to take depositions after the close of discovery would undermine the Court's ability to manage its docket.

Id. (citations omitted); see, e.g., Chrysler Int'l Corp. v. Chemaly, 280 F.3d 1358, 1362 (11th Cir. 2002) (affirming a district court's denial of leave for a party to take an additional deposition shortly before trial, and after the discovery cutoff). For this reason, requests to deviate from a scheduling order require a showing of "good cause," and if the request is made after the deadline in question, as here, an additional showing of "excusable neglect." See Fed. R. Civ. P. 6(b)(1); Fed. R. Civ. P. 16(b)(4) . . . .

Francis v. US Airways, Inc., No. 15-CV-80557, 2015 WL 11711831, at *2 (S.D. Fla. Dec. 16, 2015).

DISCUSSION

As described above, it is undisputed that Plaintiff's disclosure of Dr. Cusano as a (treating physician) fact witness was untimely under the Federal Rules of Civil Procedure. (See Doc. No. 132 at 11-13). The issue now before the Court is whether Dr. Cusano may be allowed to testify as a (treating physician) fact witness despite Plaintiff's late disclosure.

i. The Parties' Positions

Plaintiff asks the Court to substitute Dr. Cusano, "only as a treating physician," in place of previously disclosed treating physician witnesses Dr. Wand and Dr. Henley. (Doc. No. 151 at 1). Plaintiff contends that Dr. Wand and Dr. Henley reside outside of this Court's subpoena power and they refuse to voluntarily appear at trial.⁴ (Id. at 3). Plaintiff represents that Dr. Wand informed Plaintiff in August 2020 that he refused to appear at trial, and Dr. Henley informed Plaintiff in April 2021 that she refused to appear at trial. (Id. at 2). He maintains that these witnesses' refusals to appear at trial amount to "circumstances outside of his control" and warrant the Court to allow the untimely disclosure of Dr. Cusano as a (treating physician) fact witness at trial. (Id. at 3-4).

Plaintiff represents that Dr. Cusano began treating Plaintiff in April 2020, and Plaintiff (untimely)⁵ disclosed her as a treating physician witness on July 31, 2020. (Id. at 1). Plaintiff argues that there will be little prejudice posed to Defendants by allowing Dr. Cusano to testify because "Defendants are already aware of Dr. Cusano's primary opinion, i.e., that Plaintiff has a pituitary microadenoma...