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Escalante v. Lifepoint Hospital Inc.

United States District Court, D. Kansas

July 1, 2019

RAQUEL ESCALANTE, individually and on behalf of her daughter minor B.E., Plaintiffs,
v.
LIFEPOINT HOSPITAL INC., d/b/a WESTERN PLAINS MEDICAL COMPLEX, et al., Defendants.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER UNITED STATES DISTRICT JUDGE.

         This is a medical malpractice action brought by Plaintiff Raquel Escalante, individually and on behalf of her minor child, B.E., seeking recovery for injuries sustained by B.E. during birth. Before the Court are several motions filed by Plaintiffs and the remaining Defendant (physician Tanya Williams)[1]: Defendant's motion for partial summary judgment (Doc. 131), Plaintiffs' motion for extension of time to file an opposition to Defendant's motion for partial summary judgment (Doc. 141), Defendant's motion to exclude testimony from vocational expert Michael Dreiling (Doc. 119), and Plaintiffs' motion to exclude certain defense expert testimony regarding the cause of B.E.'s injuries (Doc. 133).

         After a detailed review, the Court grants in part and denies in part Defendant's motion for partial summary judgment. The Court grants Defendant's motion with respect to Plaintiffs' claim for out-of-pocket expenses, including medical-related travel expenses. The Court, however, finds summary judgment is inappropriate on Plaintiffs' claim for past medical expenses. The Court further grants Plaintiffs' request for additional time to respond to the motion for partial summary judgment. Finally, the Court grants in part and denies in part Defendant's motion to exclude Mr. Dreiling's testimony and denies Plaintiffs' motion to exclude the defense expert causation testimony.

         I. BACKGROUND[2]

         Plaintiff Raquel Escalante gave birth to her minor daughter B.E. in May 2010. Doc. 1. Plaintiffs contend the medical facilities and physicians involved in Plaintiffs' prenatal care and the subsequent birth of B.E. provided negligent medical care and treatment, causing B.E. to suffer a permanent brachial plexus injury. Id.

         In 2017, Plaintiffs sued: the medical practices who treated them (Dodge City Medical Center, Chtd. and Family Practice Associates of Western Kansas LLC); the hospital where B.E. was delivered (LifePoint Hospital Inc. d/b/a Western Plains Medical Complex); and the physicians who provided prenatal and postnatal care and treatment to Plaintiffs (Dr. Samir Shaath and Dr. Tanya Williams). Id. In this action, Plaintiffs assert a single count of medical negligence. Id. Plaintiffs seek compensatory damages, including-pertinent for purposes of the disposition of these motions-lost wages for B.E., compensation for past medical expenses, and certain out-of-pocket expenses (which include travel for medical care). Doc. 128 at 9. The medical practices, the hospital, and Dr. Shaath have since been dismissed. Docs. 63, 80, 89, 107. Only Plaintiffs' claims against Dr. Williams (hereinafter referred to simply as “Defendant”) remain for disposition.

         The Court previously entered a scheduling order[3] establishing deadlines for, among other things, fact and expert discovery, motions to exclude expert testimony, and dispositive motions. On January 28, 2019, pursuant to the deadline established in the scheduling order, Defendant moved to exclude testimony from Plaintiffs' vocational expert (Michael Dreiling). Doc. 119. Plaintiffs oppose this motion and also move to exclude Defendant's designated OB/GYN expert (Dr. Margaret O'Hara) and pediatric neurologist expert (Dr. Arthur Mandel) from testifying as to a certain theory of causation-that B.E.'s injuries occurred spontaneously “in utero” by natural “maternal forces.” Doc. 133. Defendant has also moved for partial summary judgment on certain damage claims. Doc. 131.

         II. ANALYSIS

         A. Defendant's Motion for Partial Summary Judgment (Doc. 131)

         Defendant seeks summary judgment on Plaintiffs' demands for (1) past medical expenses and (2) out-of-pocket expenses (including expenses related to travel for medical care). Doc. 131.[4] Defendant contends summary judgment must be granted because Plaintiffs cannot meet their burden of proof on these claims of damages due to their alleged failure to provide any evidence to support these claims-and, specifically, their failure to tender a computation of damages as required by Federal Rule of Civil Procedure 26. Doc. 132 at 2. For the following reasons, the Court grants Defendant's motion as it pertains to Plaintiffs' alleged out-of-pocket expenses. But the Court denies Defendant's request for summary judgment on Plaintiffs' claim for past medical expenses.

         1. Standard

         Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In applying this standard, courts must view the facts and any reasonable inferences that might be drawn therefrom in the light most favorable to the non-moving party. Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.” Bones v. Honeywell Int l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         2. Past Medical Expenses

         The Court first addresses the parties' arguments with respect to Plaintiffs' claim for past medical expenses. As set forth above, Defendant's motion for summary judgment focuses on alleged discovery violations by Plaintiffs for not disclosing computations of their damages, including their damages for past medical expenses. Doc. 132 at 2.

         Rule 26(a)(1)(A)(iii) requires any party claiming damages or other monetary relief, without awaiting a discovery request, to disclose “a computation of each category of damages . . . [and] the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based.” Fed.R.Civ.P. 26(a)(1)(A)(iii). This rule, by its terms, “requires more than providing-without any explanation-undifferentiated financial statements; it requires a ‘computation,' supported by documents.” 8A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2053 (3d ed. 2018) (quoting Design Strategy, Inc. v. Davis, 469 F.3d 284, 295 (2d Cir. 2006)). Where a party fails to provide information required by Rule 26(a), Rule 37(c)(1) provides that the party is not allowed to use that information in a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. Fed.R.Civ.P. 37(c)(1).

         Plaintiffs therefore had an obligation to provide a computation of each category of their damages along with supporting documentation. In their Rule 26 disclosures, served April 13, 2017, Plaintiffs identified their damages, in pertinent part, as follows:

Plaintiffs damages include economic and non-economic damages. Plaintiff is currently requesting specific documents from various third party entities to substantiate and provide an itemized computation of damages. These damages will also likely be the source of expert opinion testimony. As soon as appropriate documentation is received, Plaintiff will produce a supplemental computation of damages for distribution to Defendants itemizing damages.

Doc. 132-1 at 5. As indicated by their response, Plaintiffs did not provide a computation or supporting documents with their Rule 26 disclosures. During discovery, Defendant propounded interrogatories requesting (among other things) that Plaintiffs (1) itemize each medical expense they claim in this case, and (2) set forth all damages they claim and, further, itemize those damages and provide a total damages figure. Doc. 132-2 at 23, 25. In response, Plaintiffs directed Defendant to the billing records and stated that they had not yet calculated their damages but would supplement. Doc. 132-3 at 6-7. But, despite serving supplemental interrogatory responses, Plaintiffs still did not provide such a calculation. Doc. 132-4 at 2. Plaintiffs did provide a medical release authorizing Defendant to obtain Plaintiffs' billing records but did not provide copies of the bills themselves, claiming the bills were lost in a house fire. Doc. 132-5 at 1. In ...


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