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Tholen v. Assist America, Inc.

United States District Court, D. Minnesota

April 18, 2019

Richard H. Tholen, M.D., Plaintiff,
v.
Assist America, Inc., Defendant.

          Patrick M. Arenz and Emily E. Niles, Robins Kaplan LLP, (for Plaintiff)

          Mark T. Berhow, Hinshaw & Culbertson LLP, Joanna Lee Storey and Robert J. Romero, Hinshaw & Culbertson LLP, (for Defendant).

          ORDER

          Steven E. Rau United States Magistrate Judge

         This 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.

         I. BACKGROUND

         The 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.

         Assist 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).

         Dr. Tholen's counsel deposed Dr. Harris on November 14, 2018. At the end of the deposition, the following exchange occurred:

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 opening report?
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 ...

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