United States District Court, D. Minnesota
Richard H. Tholen, M.D., Plaintiff,
Assist America, Inc., Defendant.
Patrick M. Arenz and Emily E. Niles, Robins Kaplan LLP, (for
T. Berhow, Hinshaw & Culbertson LLP, Joanna Lee Storey
and Robert J. Romero, Hinshaw & Culbertson LLP, (for
E. Rau United States Magistrate Judge
matter is before the Court on Plaintiff Dr. Tholen's
Second Motion to Compel Discovery from Defendant Assist
America, Inc. and Motion to Strike an Improper Errata. (ECF
No. 155). The Court held a hearing on March 25, 2019, where
it granted the motion to compel, took under advisement the
issue of sanctions related to the motion to compel, and took
under advisement the motion to strike. (ECF No. 241).
Sanctions are contemplated in a contemporaneous Report and
Recommendation. At issue before the Court in this Order is
Plaintiffs motion to strike. That motion is granted.
facts of this case have been detailed in other orders and
will not be laboriously repeated here. Briefly, Plaintiff Dr.
Richard H. Tholen injured his leg in Mexico. Defendant Assist
America, Inc., declined to transport Dr. Tholen to the United
States for medical care, finding that his medical care in
Mexico was sufficient. Dr. Tholen transported himself back to
the United States and his leg was amputated above the knee.
America designated Dr. E. John Harris, Jr. as a vascular
surgery expert. Dr. Harris has offered two expert reports-an
opening and a rebuttal report. In the opening report, Dr.
Harris opined that "[b]y April 19, 2015, at 8:00 p.m.,
the chances of saving Dr. Tholen's right leg decreased
dramatically to the point that any opinion as to whether the
damage was irreversible would be too speculative." (Aug.
8, 2018 Expert Report of Dr. Harris, at 9, ECF No. 158-1).
The opinion continued: "By April 20, 2015, noon, more
likely than not, the vascular damage to Dr. Tholen's leg
was irreversible." (Aug. 8, 2018 Expert Report of Dr.
Harris, at 9). In Dr. Harris's rebuttal report, he opined
that "Dr. Tholen's popliteal artery did occlude
before the 5:01 p.m. exam on April 22, 2015 by Dr. Omlie. But
we simply cannot state for certain when it occluded."
(Sept. 12, 2018 Rebuttal Expert Report of Dr. Harris, at 1,
ECF No. 158-2). Dr. Harris further opined: "I agree that
the exact moment Dr. Tholen's popliteal artery became
fully occluded is unclear. . . more likely than not complete
occlusion occurred sometime after Dr. Tholen's return to
Minnesota at 2:00am April 22, 2015 . . ." (Sept. 12,
2018 Rebuttal Expert Report of Dr. Harris, at 3).
Tholen's counsel deposed Dr. Harris on November 14, 2018.
At the end of the deposition, the following exchange
Mr. Arenz: Looking at your rebuttal expert
report, do you agree that you changed your opinions in your
rebuttal expert report compared to your opinions in your
Dr. Harris: I changed my opening report. I
don't think I changed my rebuttal opinions.
Mr. Arenz: And do you think your rebuttal
report is consistent with your opening report?
Dr. Harris: No. I think my rebuttal report
is consistent with the evidence that I have.
Mr. Arenz: And do you stand behind - well,
do you have any explanation for the mistakes you made in your