United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
Merck (“Plaintiff”) alleges she was inside the
cab of her parked semi-truck when Defendant Robert Gary
Parker (“Parker”), a truck driver employed by
Defendant Swift Transportation (“Swift”), crashed
into Plaintiff's truck, thereby causing injury to
Plaintiff's back. (Doc. 1). The case is set for a jury
trial, and Swift now moves in limine to exclude Dr.
Alexander from testifying at trial because Plaintiff
improperly disclosed him as rebuttal witness, and because,
even when she disclosed Dr. Alexander, Plaintiff failed to
disclose his opinion regarding the reasonableness of
Plaintiff's medical charges and industry billing customs.
the propriety of disclosing Dr. Alexander as a rebuttal
witness, Plaintiff explains she saw the issue of damages-the
only remaining issue in this case-as being very
“straightforward.” That is because
“Plaintiff was asymptomatic prior to the accident,
” “[t]hen, the accident happened, and back pain
immediately arose, ” which was followed by
“medical treatment” and “surgeries.”
Due to this understanding, Plaintiff's initial
designations included a physical medicine doctor, a life care
planner/vocational rehabilitation expert, and treating
physicians who could establish Plaintiff's damages. In
response, however, Swift retained a biomechanical expert,
Josesph Manning, a billing expert, Mary Rossi, and an
orthopedic surgeon, Dr. Hartzler. In doing so, Plaintiff
argues Swift “put accident reconstruction, medical
causation, and past billing at issue for the first
time.” (Doc. 191). Thus, in rebuttal, Plaintiff
designated Dr. Alexander, also an orthopedic surgeon, who
Plaintiff argues she intended to use to rebut Swift's
orthopedic surgeon and billing expert. (Id.). Due to
this timing, Dr. Alexander is a true rebuttal expert, and
will not be excluded on this basis.
next argues that, even if Dr. Alexander is permitted to
testify on the topic of orthopedic surgery, he should not be
permitted to testify regarding the reasonableness of the
charges related to Plaintiff's medical charges and
whether those charges are customary in the industry. Swift
argues that, to have him testify on these topics,
“Plaintiff would have needed to disclose this opinion
in [Dr. Alexander's] written expert report[, ] which was
not done, ” and that Dr. Alexander “is not
qualified under Rule 702 to opine on the medical
bills.” (Doc. 175 at 4). Whether Plaintiff's
properly disclosed Dr. Alexander's opinion regarding the
reasonableness of Plaintiff's medical charges and
industry billing customs will be addressed first.
Plaintiff disclosed Dr. Alexander as “an expert in
Orthopedic Spinal Surgery, ” and stated he would
testify regarding “Orthopedic/Spinal Surgery.”
Plaintiff's disclosure does not indicate Dr. Alexander
would opine on billing or the reasonableness of any medical
charges. Likewise, Plaintiff acknowledges Dr. Alexander's
“report did not expressly opine on the reasonable and
customary nature of the medical bills.” (Doc. 191 at
5). Clearly, Plaintiff did not disclose Dr. Alexander as an
expert on the reasonableness of Plaintiff's medical
charges and industry billing customs.
Plaintiff argues this inadequate disclosure has been cured.
For one, Plaintiff argues it has been cured because the
parties subsequently discussed Plaintiff's disclosure.
Specifically, shortly after Plaintiff's disclosure, Swift
sent Plaintiff a letter expressing its opinion that Dr.
Alexander was not “a true rebuttal expert” and
that “his opinions were duplicative of Plaintiff's
other retained expert, Dr. Mann, ” an expert in
physical medicine/rehabilitation. (Docs. 191; 191-4).
Plaintiff further argues that, following further
correspondence between the parties, Plaintiff's counsel
“clarified Dr. Alexander's role, being rebuttal to
Dr. Hartzler.” (Doc. 191). Plaintiff argues that, after
this correspondence, she believed “the issue was
resolved, ” and that if Swift needed further
clarification, Swift should have requested it.
none of the cited correspondence shows Plaintiff
communicated, or that Swift in any way understood, that Dr.
Alexander would also be providing testimony regarding
subjects other than orthopedic surgery. Indeed,
Plaintiff's clarification-that Dr. Alexander would rebut
Swift's orthopedic surgeon, Dr. Hartzler-only confirms
Plaintiff's original disclosure: that Dr. Alexander would
be a rebuttal expert on the topic of orthopedic surgery.
Swift cannot be faulted for failing to realize that Plaintiff
also intended to offer Dr. Alexander as an expert on
reasonableness of billing, and for failing to request further
clarification from Plaintiff in this respect.
next argues Dr. Alexander should not be excluded from
testifying regarding the reasonableness of Plaintiff's
medical charges and industry billing customs because Swift
later received Dr. Alexander's “complete file,
which included all billing records, ” and then deposed
Dr. Alexander on November 17, 2017, during which Dr.
Alexander “opine[d]” on the billing records.
(Doc. 191). A short colloquy on the topic of billing
transpired during Dr. Alexander's deposition. Dr.
Alexander was asked whether, based on “the treatment
and the records that [he] reviewed, ” he
“determine[d] all that to be reasonable and
necessary?” to which he responded “yes.”
(Doc. 191-3). Dr. Alexander was also asked whether the
medical treatment was “reasonable and customary,
” to which he likewise responded, “yes.”
that Dr. Alexander was asked two questions related to the
reasonableness of medical treatment during a
deposition is not sufficient to cure the inadequacy in
Plaintiff's disclosures regarding the reasonableness of
the charges for that medical treatment. Further, the case
cited by Plaintiff in support, SMD Software, Inc. v.
EMove, Inc., 945 F.Supp.2d 628, 648 (E.D. N.C. 2013), is
easily distinguishable on the facts. For one, in SMD
Software, the court concluded the opposing party's
late-disclosed expert opinions did not cause surprise because
“all of the opinions had either been expressed by [the
opposing party's other experts] or were of a similar sort
as [the late-disclosed expert] had expressed before.”
Plaintiff does not contend the same is true here. Indeed,
Plaintiff acknowledges that Dr. Alexander's
“initial report did not expressly opine on the
reasonable and customary nature of the medical bills.”
(Doc. 191 at 5). Dr. Alexander confirmed as much in his
deposition. (Doc. 191-3, acknowledging there was
“nothing in [his] August 10, 2017, report related to
whether or not the charges in this case were reasonable and
necessary”). Thus, unlike in SMD Software,
here it is not clear that Dr. Alexander's brief
statements during his deposition were sufficient to cure any
surprise to Swift. Further, in SMD Software, the
Court in part concluded that allowing evidence from the
opposing party's late-disclosed would not disrupt trial
because “no trial date [was] set” and “a
motion for partial summary judgment [was] currently
pending.” Id. Obviously, that is not the case
final argument is that Dr. Alexander should be permitted to
testify regarding billing and the reasonableness of any
medical charges because Plaintiff has “spent a
significant amount of money” paying Dr. Alexander and
because Swift, who did retain a billing expert, will not be
prejudiced by permitting Dr. Alexander's testimony,
whereas Plaintiff's case will be
“destroy[ed].” Neither is sufficient to overcome
Plaintiff's untimely disclosure of Dr. Alexander's
opinion on billing and the medical charges'
reasonableness. Plaintiff is reminded of the scheduling
order, which states: “[t]he Court views compliance with
the provisions of this Order as critical to its case
management responsibilities and the responsibilities of the
parties under FRCP 1.”
IT IS ORDERED
Motion in Limine to Exclude Dr. Alexander, (Doc.
175), is GRANTED IN PART AND DENIED IN PART.
Plaintiff may call Dr. Alexander as a rebuttal witness, but
he may not testify regarding the reasonableness of the