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Damgaard v. Avera Health

United States District Court, D. Minnesota

April 10, 2015

KATRYNA DAMGAARD, individually and as parent and natural guardian of I.L.D., Plaintiff,
v.
AVERA HEALTH and AVERA McKENNAN, Defendants.

ORDER

JANIE S. MAYERON, Magistrate Judge.

The above matter came before the undersigned on Defendants' Motion to Preclude Untimely Expert Opinions [Docket No. 107] and Plaintiff's Motion for Sanctions [Docket No. 113]. Patrick A. Thronson, Esq. and Robert S. Lewis, Esq. appeared on behalf of plaintiff; Cecilie M. Loidolt, Esq. and Christine E. Hinrichs, Esq. appeared on behalf of defendants.

The Court, being duly advised in the premises, upon all of the files, records, and proceedings herein, and for the reasons described on the record and in the Memorandum below, now makes and enters the following Order:

IT IS HEREBY ORDERED:

1. Defendants' Motion to Preclude Untimely Expert Opinions [Docket No. 107] is GRANTED in part and DENIED in part as follows:

(a) Defendants' motion to preclude the expert opinion of Dr. Gabrielle deVeber disclosed at her deposition on February 23, 2015, and the supplemental expert opinions of Dr. Joseph Philips, III and Dr. Marcus Hermansen, disclosed on March 2, 2015 and March 11, 2015, respectively, is denied.
(b) Defendants shall be permitted to disclose written expert opinions in response to the expert opinion of Dr. Gabrielle deVeber disclosed at her deposition on February 23, 2015, and the supplemental expert opinions of Dr. Joseph Philips, III and Dr. Marcus Hermansen, disclosed on March 2, 2015 and March 11, 2015, respectively.
(c) Plaintiff shall be permitted to depose defendants' experts regarding their responsive opinions to the expert opinion of Dr. Gabrielle deVeber disclosed at her deposition on February 23, 2015, and the supplemental expert opinions of Dr. Joseph Philips, III and Dr. Marcus Hermansen, disclosed on March 2, 2015 and March 11, 2015, respectively.
(d) Sanctions for plaintiff's untimely disclosure of the supplemental expert opinions of Drs. Philips and Hermansen are awarded against plaintiff. Plaintiff shall pay to defendants the reasonable attorney's fees and costs incurred by defendants in bringing and attending their Motion to Preclude Untimely Expert Opinions. To calculate the amount of the award, on or before April 30, 2015, defendants' counsel shall serve and file an affidavit setting forth the attorneys' fees and costs incurred in connection with the preparation of their Motion to Preclude Untimely Expert Opinions and attending the hearing on this motion, including the hourly rate charged by each attorney or other service provider (e.g. legal assistant), support for the hourly rate (e.g. date of graduation from law school, years of practice as an attorney, or any specialized practice experience or credentialing), an itemization of the time spent by each attorney or other service provider on each service, and a description of the services rendered. On or before May 15, 2015, plaintiff may serve and file her response to defendants' affidavit. The Court will then issue an order awarding reasonable attorney's fees and costs to defendants.
(e) As further sanctions, plaintiff shall reimburse defendants for any additional time and expense charged by defendants' experts to review and respond to the expert opinion of Dr. Gabrielle deVeber disclosed at her deposition on February 23, 2015, and the supplemental expert opinions of Dr. Joseph Philips, III and Dr. Marcus Hermansen, disclosed on March 2, 2015 and March 11, 2015, respectively, and for the expenses incurred by the expert to reappear at any re-noted deposition, including travel and hotel expenses charged by the expert. Defendants shall submit those additional charges to plaintiff for reimbursement and plaintiff shall pay this amount to defendants within two weeks of submission. If plaintiff objects to the amounts charged by defendants' experts for their review and response to plaintiff's experts' opinions or the expenses associated with an expert's attendance at any re-noted deposition, plaintiff shall serve their objections on defendants within two weeks of defendants' submission of charges to plaintiff. The parties shall confer to resolve the objections. If the parties cannot resolve plaintiff's objections, then the parties shall file with the Court a letter, not to exceed three pages, single-spaced in 12-point font, explaining their respective positions on the amounts charged by defendants' experts and plaintiff's objections to these amounts.

2. Plaintiff's Motion for Sanctions [Docket No. 113] is DENIED.

3. The Court will separately issue a Fourth Amended Pretrial Scheduling Order.

MEMORANDUM

I. BACKGROUND

A. Factual Background

The facts as alleged in plaintiff's Amended Complaint were described in detail in this Court's Order dated June 9, 2014, and will not be repeated here. See Order, pp. 1-4 [Docket No. 69]. In brief, plaintiff's minor child, I.L.D., was born on May 20, 2010, with "extensive symmetric cystic encephalomalacia of the cerebral hemispheres related to global ischemia/infarct...." Id., p. 2 (quoting Affidavit of Sarah Hoffman, Ex. 1 [Docket No. 55]). I.L.D. suffers from severe and permanent injuries, including spastic quadriplegia cerebral palsy with severe developmental delays. Amended Complaint, ¶30 (a-k) [Docket No. 7]. Plaintiff's Amended Complaint alleged medical negligence and loss of consortium based on the care and treatment provided by Dr. Mary Olson, the physician who managed plaintiff's pregnancy and delivered I.L.D. Id., Counts I and II.

This Court's Third Amended Pretrial Scheduling Order required plaintiff to disclose the identity of expert witnesses under Rule 26(a)(2)(A) and the full disclosures required by Rule 26(a)(2)(B), accompanied by the written report prepared and signed by the experts by September 15, 2014, including the Minn. Stat. §145.682 report required for medical malpractice actions. Defendants' responsive disclosures were due on December 15, 2014, and plaintiff's rebuttal disclosures were due on January 15, 2015 [Docket No. 84].

Plaintiff timely disclosed the initial opinions of Dr. Joseph Philips, III, a neonatologist, Dr. Marcus C. Hermansen, a pediatrician and neonatologist, and the rebuttal opinion of Dr. Gabrielle deVeber, a pediatric neurologist. Affidavit of Sarah Hoffman ("Hoffman Aff."), Exs. A, B, C [Docket No. 111-1]. These experts opined on causation and damages. Id. In response to plaintiff's experts' opinions, defendants disclosed their experts and reports on December 15, 2014. Affidavit of Robert S. Lewis ("Lewis Aff."), Ex. B [Docket No. 120-1]. In her rebuttal disclosure, Dr. deVeber opined that I.L.D.'s injuries resulted from hypoxic-ischemic encephalopathy caused by partial prolonged and acute intrapartum asphyxia close to the time of birth, possibly contributed to by postnatal seizures. Hoffman Aff., ¶5. None of the three experts opined on the standard of care provided by Dr. Olson before or after delivery of I.L.D.

During defendants' deposition of Dr. deVeber on February 23, 2015, counsel asked Dr. deVeber and Dr. deVeber responded as follows:

Q. Was there any - did the timing of giving phenobarbital have any bearing on the child's ultimate outcome in this case, in your opinion?
A. Yes, I think it did. If it was delayed, ongoing seizures are not good for the brain, in particular when there is a problem with energy supply because the seizures create a tremendously increased demand for energy supply.
Q. What do you mean by "energy supply?"
A. I mean glucose and oxygen.
Q. How much of a role did any delay in phenobarbital being given play in the child's ...

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