Woienski v. United Airlines, Inc.

383 F.Supp.3d 1342

Gregory WOIENSKI, Plaintiff,

v.UNITED AIRLINES, INC., Defendant.

Case No: 6:18-cv-393-Orl-40LRH

United States District Court, M.D. Florida, Orlando Division.

Signed May 31, 2019

Andre Raikhelson, Law Offices of Andre G. Raikhelson, LLC., Boca Raton, FL, Daniel Marc Berman, Berman & Tsombanakis LLC, Fort Lauderdale, FL, for Plaintiff.

Gregory M. Palmer, Rumberger, Kirk & Caldwell, PA, Miami, FL, Sara Sanders Whitehead, Welbilt, Inc., New Port Richey, FL, for Defendant.

ORDER

PAUL G. BYRON, UNITED STATES DISTRICT JUDGE

This cause is before the Court on Defendant United Airlines, Inc.'s Motion to Preclude the Testimony of Dr. Devin Datta. (Doc. 56). Plaintiff has filed a response in opposition (Doc. 57), and the matter is now ripe for resolution. After having reviewed the pleadings and the deposition testimony of Dr. Datta (Doc. 60), the Defendant's Motion is due to be denied.

I. BACKGROUND

Plaintiff alleges that on February 26, 2017, he sustained serious injuries while attempting to board a United Airlines flight, and he sued Defendant for its alleged negligence. (Doc. 1). On June 4, 2018, the Court issued its Case Management Scheduling Order which, in pertinent part, requires Plaintiff to disclose his expert report on or before February 21, 2019, with the defense expert report to be submitted on March 21, 2019. (Doc. 15). Discovery closed on April 22, 2019. (Id. ).

Plaintiff disclosed Dr. Datta's expert report, curriculum vitae, and fee schedule on February 25, 2019 (Doc. 57-1), along with the medical records he relied upon in rendering his opinion. (Doc. 57-2). The following day counsel for United Airlines deposed Dr. Datta. (Doc. 60-1). Approximately ten weeks later, Defendant filed its Daubert Motion. (Doc. 56). The defense did not challenge the completeness of Dr. Datta's Rule 26 expert disclosure prior to taking his deposition, before the close of discovery, or in advance of their Daubert challenge.

II. DISCUSSION

A. The Daubert Challenge

United Airlines seeks to exclude Dr. Datta on the following grounds: (1) Dr. Datta failed to provide a complete statement of all opinions he would express and the basis and reasons for them, including the facts or data considered by him, and failed to disclose a list of cases where he testified as an expert; (2) Dr. Datta's opinions are speculative as to the causal connection between Plaintiff having fallen on a United Airlines airplane and his L1 compression fracture ; and (3) Dr. Datta's opinions are, therefore, not helpful to the jury. (Id. at p. 2).

In response, Plaintiff argues that the expert report is adequate, because Dr. Datta examined Plaintiff, considered medical records, including diagnostic films, and based his opinion on the objective evidence coupled with patient history concerning the injury sustained after the fall. (Doc. 57, p. 4). Plaintiff concedes that Dr. Datta did not disclose a list of cases over the past four years where he testified as an expert, explaining that Dr. Datta does not maintain a list. (Id. at p. 9). The parties agree that Dr. Datta possesses the requisite qualifications to offer a medical opinion on the issue of causation. The dispute centers on the methodology by which Dr. Datta reaches his conclusions and its reliability.

B. The Expert Report

Rule 26 imposes specific disclosure requirements upon any witness "who is retained or specially employed to provide expert testimony in the case ..." Prieto v. Malgor , 361 F.3d 1313, 1317 (11th Cir. 2004). The proffered expert must provide a written report "containing ‘a complete statement of all opinions to be expressed and the basis and reasons therefor,’ as well as information about the data considered, the witness' qualifications, the compensation earned, and any other recent cases in which he or she offered testimony.’ " Id. at p. 1318. The failure to comply with this rule, absent "substantial justification," results in the expert being stricken "unless such failure is harmless." Id.

Whether the failure to fully comply with Rule 26 is harmless involves the consideration of five factors:

(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.

Kondragunta v. Ace Doran Hauling & Rigging Co. , No. 1:11-cv-01094-JEC, 2013 WL 1189493, at *7 (N.D. Ga., Mar. 21, 2013). Where the opponent of the proffered expert fails to either attempt to resolve the defective expert report in good faith or fails to move for an order requiring a more detailed response under Rule 26, that party cannot be heard to complain of prejudice. Id. (quoting Griffith v. Gen. Motors Corp. , 303 F.3d 1276, 1283 (11th Cir. 2002) ); see also, Mitchell v. Ford Motor Co. , 318 F. App'x 821, 822 (11th Cir. 2009) (excluding expert testimony where the deficiently written report prevented the defendant from being able to fully depose the expert).

It is undisputed that Dr. Datta's expert report, cited in its entirety below, is brief:

Gregory Woienski DOB 05/18/1951 Narrative Request Dictated 02/21/2019

.P: PHYSICAL EXAMINATION

The patient was initially referred to our office by Dr. Jay Olsson for a lumbar spine consult. He established with Dr. Ortiz on 07/07/2015 for evaluation of low back and leg pain issues. He is identified with a degenerative disease in his lumbar spine, particularly L4-5 and L5-S1 and adjacent level stenosis that was severe at the L3-4 level. He established with me on 10/13/2015. We discussed the findings, I believe that the lower lumbar levels were autofused and the L3-4 level was the main motion segment with a stenosis and we talked about surgical options in that area, that was on 10/13/2015. He had some other underlying medical issue with an open wound that delayed him heading toward surgery. He ended up in the hospital with an acute L1 fracture, was treated with an L1 Kyphoplasty on 03/02/2017. This fracture occurred below a multilevel autofused segment from T12 and superior. He then underwent an L3-4 OLIF and posterior laminectomy fusion at L3-4 on 04/06/2017. After the surgery, he did well with significant improvement of his back and leg pain. More recently, he is having some neck issues and a CT scan of his cervical spine was reviewed, which also showed a multilevel cervical autofusion present. His current treatment involves education and risk for fracture with additional falls or injuries because of his multilevel autofusion segments throughout his spine, but also he has significant risk for adjacent level disease and he still has at T12-L1, L1-2 and L2-3 segments that remain with some motion present and those could wear out as time progresses.

As far as his injuries resulting from his recent fall on the United Airlines flight, he definitely had the subacute L1 compression fracture, which is directly attributed to the fall. He has had increased neck pain, but no fracture identified in his cervical spine, so symptomatic treatment will be the treatment for his cervical spine.

.P:

Devin K. Datta, MD/11519

(Doc. 57-3).

Plaintiff contends that Dr. Datta's opinion is fleshed out by the medical records furnished contemporaneous to his opinion. However, it is axiomatic that "the fact ... plaintiff provided all his medical records to the defendants does not mean that plaintiff fulfilled the ‘summary of the facts and opinions’ prong of Rule 26(a)(2)(c)." Kondragunta , at *6. This is because "[a]llowing medical records to be submitted ‘in lieu of a summary would invite a party to dump voluminous medical records on the opposing party, contrary to the rule's attempt to extract a ‘summary.’ " Id. (citation omitted). Thus, the Court must first decide whether the Rule 26 disclosure was deficient and whether the Defendant was harmed.

1. Deficiencies were Harmless

Here United Airlines knew that Dr. Datta, one of Plaintiff's treating physicians, would testify concerning Plaintiff's injuries and causation. Defendant had ample opportunity to either consult with opposing counsel concerning perceived deficiencies in Dr. Datta's Rule 26 disclosure or to file a motion to compel a more comprehensive report or to strike the instant report.¹ United Airlines chose to do neither.

To the contrary, the day after defense counsel received Dr. Datta's report, the defense deposed Dr. Datta. The Court has carefully reviewed Dr. Datta's deposition, and the defense does not interpose any objection to proceeding or voice any complaint regarding the brevity of the expert report. Throughout the deposition, defense counsel refers to, or asks Dr. Datta to read, medical records describing treatment provided by Dr. Ortiz or by Dr. Datta. (Doc. 60-1). The defense used the medical records to question Dr. Datta diagnostic tests, Dr. Datta's observations of the L1 fracture during surgery, and Plaintiff's patient history. (Id. at 5:7–10; 6:12–15; 9:22–10:13; 13:2–6; 14:11–13; 15:9–25; 17:10–15; 18:18–23; 19:12–21; 21:9–23; 22:8–23: 126:10–16; 29:5–11; 31:14–21). The deposition was short and targeted, the hallmarks of a prepared attorney, and at the conclusion of the deposition, counsel for the defense did not request an opportunity to re-depose Dr. Datta due to any prejudice caused by the brevity of the expert report.² In fact, Dr. Datta was asked six questions, and they involved who asked him to prepare the report, when he dictated the report, and how much he was paid. (Doc. 60-1, 35:1–36:2).

In short, Defendant was not surprised by Dr. Datta's opinions, clearly understood the methodology employed by Dr. Datta in arriving at his causation opinions and had ample opportunity to complain about the quality of his expert report if necessary. Rather than attempt to cure the deficiencies in Dr. Datta's report, Defendant expeditiously set and took Dr. Datta's deposition and now raised noncompliance with ...