United States District Court, E.D. Michigan, Southern Division
DAVID L. RHINEHART and LEWIS RHINEHART, Joint Personal Representatives of the Estate of KENNETH A. RHINEHART, Deceased, Plaintiffs,
DEBRA SCUTT, et al., Defendants.
OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR
SANCTIONS  AND ORDERING THE PARTIES TO MEDIATE
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
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.
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.
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 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.
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.
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.
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. See Id. at 7314-15.
Whether Kosierowski should be permitted to testify as a
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).
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.
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).
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
Whether Kosierowski satisfies the ...