United States District Court, D. Kansas
RAQUEL ESCALANTE, individually and on behalf of her daughter minor B.E., Plaintiffs,
LIFEPOINT HOSPITAL INC., d/b/a WESTERN PLAINS MEDICAL COMPLEX, et al., Defendants.
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE.
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): 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).
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
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
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.
Court previously entered a scheduling order 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.
Defendant's Motion for Partial Summary Judgment (Doc.
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.
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
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)).
Past Medical Expenses
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.
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.
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,
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 ...