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Rhinehart v. Scutt

United States District Court, E.D. Michigan, Southern Division

April 19, 2017

DAVID L. RHINEHART and LEWIS RHINEHART, Joint Personal Representatives of the Estate of KENNETH A. RHINEHART, Deceased, Plaintiffs,
DEBRA SCUTT, et al., Defendants.



         Trial in the case is quickly approaching, and Plaintiffs recently moved the Court to bar the testimony of one of Defendants' witnesses, permit Plaintiffs to redepose one of the Defendants, and to sanction Defendants. For the reasons stated below, the Court will deny the motion and order the parties to mediate one last time.


         The case arises out of the medical treatments that the late Kenneth Rhinehart did and did not receive while incarcerated. Although now prosecuted by the executors of his estate, Rhinehart initiated the case pro se prior to his death. The instant motion concerns an affidavit sworn to and submitted to the Court in the early days of the litigation.

         Rhinehart filed the complaint on March 29, 2011. He also filed two pro se motions for temporary restraining orders (TROs) - along with other motions - before his current counsel filed an appearance on July 27, 2011. Counsel then filed a third motion for a TRO on August 17, 2011. ECF 79. In this third motion, Rhinehart asked the Court to enter an injunction ordering Defendants[1] to "schedule [Rhinehart] to be seen by a qualified liver specialist/oncologist/heptatologist so that he can receive a qualified treatment plan to prevent a more rapid onset of his advanced liver disease" and also order Defendants to schedule Rhinehart "for an appointment to see a liver specialist[.]" Id. at PgID 905.

         In their response to the motion, Defendants argued that Rhinehart failed to make the showing necessary to justify entry of an injunction, and further explained that Rhinehart was both "an unlikely candidate for a liver transplant, " and that it was not "medically necessary" to schedule Rhinehart to be seen by a "liver specialist/oncologist/hepatologist" because "a qualified treatment plan" was already in place and his medical needs were being met. ECF 83, PgID 959. Defendants supplemented their response with an affidavit from Dr. Richard Kosierowski, an oncologist who had been consulted in the care of Rhinehart. Kosierowski stated that he did not believe Rhinehart needed a consultation with an outside oncologist or liver specialist. ECF 89-1, PgID 1204.

         Following the briefing, Magistrate Paul J. Komives issued a Report and Recommendation, suggesting the Court deny the motion. The magistrate judge emphasized that Rhinehart was receiving medical attention and had "at best, established a difference of opinion with respect to [his] medical treatment." ECF 121, PgID 1691-92. In explaining his conclusion, the magistrate judge mentioned that "[p]erhaps the most persuasive piece of evidence is Dr. Kosierowski's affidavit." Id. at 1691. The Court adopted the Report over Rhinehart's objections and denied the motion for a TRO. ECF 127. Rhinehart filed an interlocutory appeal of the Court's denial order, ECF 128, but the Court of Appeals for the Sixth Circuit affirmed the Court's denial, ECF 135.

         Four years later, Plaintiffs attack Kosierowski's affidavit. Plaintiffs recently deposed Kosierowski and now claim that certain statements within the 2011 Affidavit "were not true at the time the Affidavit was submitted, and that Dr. Kosierowski knew these statements not to be true when he executed the Affidavit[.]" ECF 308, PgID 7296 (emphasis omitted). According to Plaintiffs, Kosierowski, in writing the affidavit, erred in three ways:

(1) He misrepresented his relationship to Corizon,
(2) He misrepresented the basis for his conclusion and his familiarity with Rhinehart's medical records, and
(3) He did not draft the 2011 Affidavit himself.

See Id. at 7296-03. For relief, Plaintiffs ask the Court to (1) bar all testimony from Kosierowski "except testimony elicited by Plaintiffs", (2) instruct the jury "regarding the evidentiary effect of Defendants' knowing submission Kosierowski called as an adverse witness and questioned before the jury" concerning the Affidavit of false evidence", (3) allow Plaintiffs to redepose Defendant Edelman, and (4) award to Plaintiffs all the attorneys fees and expenses related to the Affidavit.[2] See Id. at 7314-15.


         I. Whether Kosierowski should be permitted to testify as a non-retained expert

         Rule 26 of the Federal Rules of Civil Procedure governs witness disclosures, while Rule 37 establishes the consequences for failure to comply with the rules. A party intending to introduce expert witness testimony at trial must disclose to the other parties the identity of the witness, and if the witness is "retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony, " then the party offering the witness's testimony must accompany the disclosure with a written report "prepared and signed by the witness" Fed.R.Civ.P. 26(a)(2)(A), (B). If a party fails to comply with this requirement, "the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1).

         Plaintiffs argue that under Rule 26(a)(2)(B), Defendants were required to provide a signed, written report from Kosierowski. They claim that at the time he signed the Affidavit, he was employed by Corizon, and they further argue that his duties "regularly involve providing expert testimony, since he admitted providing such testimony was a 'somewhat routine' part of his job." ECF 308, PgID 7297-98 (quoting Kosierowski's deposition testimony). Plaintiffs argue that, because Defendants' disclosures did not include a report from Kosierowski, he may not be called as an expert witness at trial. Id. at 7313.

         Kosierowski is not automatically a "retained expert" merely because he was (or is) an employee of Corizon - even if part of his duties involve giving expert testimony. As the Sixth Circuit has emphasized, "[a] treating physician . . . can be deposed or called to testify at trial without any requirement for a written report." Fielden v. CSX Transp., Inc., 482 F.3d 866, 869 (6th Cir. 2007), as amended on denial of reh'g and reh'g en banc (July 2, 2007) (quoting Fed.R.Civ.P. 26(a), cmt. 1993 Amendments, subdivision (a), para. (2)). This is so even if the physician's job incidentally requires him to participate in litigation with some frequency, because the purpose of the rule is to distinguish between experts who form their opinions in anticipation of litigation and those who form opinions in the regular course of treatment. See Ulbrick v. UPR Prod., Inc., No. CIV. 08-13764, 2011 WL 500034, at *4 (E.D. Mich. Feb. 8, 2011) (making the distinction and collecting cases).

         Kosierowski testified that he was involved with Rhinehart's treatment in February 2010, more than a year before Rhinehart had even filed suit. See Kosierowski Dep., ECF 308-3, 19:6-21. He testified that he has prepared "three or four" affidavits a year and that he does not get paid to prepare the affidavits. Id. at 52:5. In sum, Kosierowski is not the "retained expert" whose testimony is governed under Rule 26(a)(2)(B) - he is a treating physician who may be called upon to testify to discussions he had during Rhinehart's treatment and the opinions he formed at that time. See Expert Disclosures, ECF 308-2, PgID 7324. Accordingly, the Court will not bar his testimony at trial for failure to submit a report.

         II. Whether Kosierowski satisfies the ...

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