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Crouch v. State Farm Mutual Automobile Insurance Co.

United States District Court, D. Kansas

October 21, 2019

BRIAN CROUCH, Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

          MEMORANDUM & ORDER GRANTING DEFENDANT'S MOTION TO STRIKE EXPERTS

          HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE

         Now before the Court is Defendant's Motion to Strike Plaintiff's Expert Disclosures. (Doc. 49.) After review of the parties' submissions, for the reasons set forth below, the undersigned Magistrate Judge GRANTS Defendant's motion.

         FACTUAL BACKGROUND

         A. Accident and Treatment.

         The present lawsuit results from an April 22, 2017, motor vehicle accident involving a taxi in which Plaintiff was a passenger which was struck by an automobile driven by a drunk driver, who is now incarcerated. Plaintiff has resolved his claims with the drunk driver, but seeks to recover underinsured motorist benefits through an insurance policy issued to him by Defendant State Farm Mutual Automobile Insurance Company.

         Plaintiff alleges that, following the accident,

[he] was taken by private vehicle to St. Luke's Hospital in Kansas City, Missouri, where he was treated and released on the same date. After this initial emergency room visit, he followed-up as instructed with his primary care physician, Dr. Neal Erickson. Dr. Erickson, as most primary care physicians are taught and trained to do, referred plaintiff for further imaging that was conducted at St. Joseph Medical Center. Upon information and belief, Dr. Erickson did not conduct any material activities other than receiving the subjective reports of pain and perhaps conducting a cursory examination of the plaintiff prior to referring the plaintiff for further evaluation. At St. Joseph Medical Center, the plaintiff underwent further imaging of his chest on May 26, 2017. Dr. Luke Wilson and Stacey Bateman were the medical providers who conducted and interpreted this chest x-ray, which depicted rib fracture deformities involving multiple right-sided anterior and posterior ribs. This includes healing fractures of the anterior second right rib, anterior and posterior third right rib posterior and anterolateral fourth right rib. A subacute to chronic appearing fracture of the distal third of the right clavicle and a subacute to chronic appearing fracture of the right T1 transverse process. The fractures discussed demonstrate mild callus formation but no complete bony ankylosis. Dr. Wilson also noted chronic-appearing lateral rib fracture deformities involving the sixth and seventh left ribs. Since this imaging and because of the nature of the multiple fractures he has sustained and the lack of surgical or other active medical intervention that can be performed, plaintiff has not received any additional, material treatment.

(Doc. 53, at 2-3.)

         Plaintiff served his expert disclosures on August 9, 2019, pursuant to Fed.R.Civ.P. 26(a)(2). Therein, he identified Kevin Witte, D.O. and Cori Ingram, BSN, RN, CNLCP as his retained experts. (Doc. 49-1.) He also identified his treating physicians as well as the investigating police officers as non-retained experts. (Id.) Supplemental designations, discussed infra, were submitted with Plaintiff's response to Defendant's motion. (See Doc. 53-3.) The supplemental designation limited Plaintiff's non-retained, treating physician experts to Dr. Neal Erickson, Dr. Luke Wilson, and Stacey Bateman. (Id., at 3.)

         B. Substance of Pending Motion.

         Defendants bring the present motion to exclude expert testimony, arguing that Plaintiff's disclosures were “deficient in the following respects: (1) Plaintiff failed to include a list of publications and a list of testimony for Dr. Witte; and (2) Plaintiff's designations for non-retained experts were too vague.”[1] (Doc. 49, at 2.) Plaintiff responds by offering supplemental disclosures and stating he will agree for Defendant to have additional time to designate its own experts and conduct discovery. (Doc. 53, at 3-4.) Plaintiff continues that

[t]here is no surprise in the proposed testimony of Dr. Erickson nor the radiologist at St. Joseph Health Center given their limited time and exposure in treating the plaintiff. In essence, Dr. Erickson would testify that the plaintiff followed-up with him after an initial emergency room visit and the radiologist would offer testimony consistent with the narrative contained in the x-ray taken of the plaintiff's chest taken a month after the accident. Any claimed deficiency has been cured by the proposed disclosures attached to this filing, which do contain the sufficient main points of the very limited subject matter involved in the plaintiff's visits to his primary care physician and for additional imaging of his chest. With respect to the Court, plaintiff fails to see how trial almost a year from now would be disrupted through any perceived issues in the testimony of these two treating medical providers and, again, it is not the plaintiff's intent to frustrate the process of discovery on the issue.

(Id., at 4.)

         Defendant replies that Plaintiff's supplementations remain “insufficient.” (Doc. 56, at 4.) According to Defendant, the supplementation “does nothing more than summarize the type of care each of the treaters provided and refer to the records and reports each of the treaters generated” and “still does not specifically describe the main points of the entirety of the healthcare providers' anticipated testimony.” (Id.) Defendant continues that Plaintiff's disclosures regarding the investigating police officers are “[e]ven more vague.” (Id.) According to Defendant,

Plaintiff's designation simply states that each of these officers ‘performed specific, identifiable tasks relating to Mr. Crouch and generated reports/documents of his investigation in the subject vehicle accident' that ‘have been produced in discovery, are attached to these disclosures and are incorporated by reference.' The designation then continues that each of these officers ‘will testify and provide opinions regarding the investigation and reconstruction of the traffic accident at issue.'

(Id.) Defendant argues that “[t]his generic designation does not provide [it] with any guidance as to what the main points of the entirety of the testimony anticipated ...


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