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Guldenstein v. Merit Energy Company, L.L.C.

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

June 19, 2017

ROBERT GULDENSTEIN and KAREN GULDENSTEIN, Plaintiffs,
v.
MERIT ENERGY COMPANY, L.L.C., Defendant.

          District Judge Linda V. Parker Magistrate Judge Anthony P. Patti

          ORDER GRANTING IN PART AND DENYING WITHOUT PREJUDICE IN PART DEFENDANT / THIRD PARTY MERIT ENERGY COMPANY, L.L.C.'S RENEWED MOTION TO STRIKE EXPERT WITNESSES (DE 68)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

         The Court has reviewed Defendant Merit Energy Company, L.L.C.'s (Merit's) renewed motion, in which Defendant Douglas Hart has concurred and joined, Plaintiff's response and Merit's reply. The Court shares Merit's frustration at what appears to be Plaintiff's shenanigans regarding the ongoing mislabeling of non-treating expert witnesses as treating physicians. It appears that Plaintiff's attorneys have not taken the opportunity given in this Court's previous order to “have a candid discussion with Dr. Harbut” to determine if he “actually [has] a treatment relationship with Plaintiff Robert Guldenstein[, ]” and, if not, “to withdraw him as a witness.” (DE 62 at 5.) It also appears that Plaintiff's attorneys have not exercised the opportunity afforded them “to make the same evaluation and analysis [at least] with respect to Dr[]. Williams….” (Id.) It is clear to the Court, based upon the record provided in support of the motion and response, that Drs. Harbut and Williams should be stricken from Plaintiff's witness list and precluded from testifying for the reasons which follow. The true role of Dr. Silverman is less clear, however, and a fuller record is necessary before the Court can determine whether he should likewise be stricken and precluded from testifying. The Court's reasoning as to each of the three physicians at issue is addressed in the subsections which follow.

         Dr. Michael Harbut

         The Court's suspicions as to the true role of Dr. Michael Harbut should have been obvious to anyone who took the time to read its previous order on this subject. (DE 62.) As then noted, Dr. Harbut's 2014 deposition testimony in a Kalamazoo County Circuit Court case (No. 11-0492-NO) suggests that he ceased practicing medicine some time ago and that he now only serves as a paid expert witness, notwithstanding Plaintiff's counsel's repeated representation that he is Mr. Guldenstein's new-found treating physician. The records now produced pursuant to my prior order, and which I have reviewed in deciding this motion, convince the Court that Dr. Harbut has no treatment relationship with Plaintiff and that a ruse may again be in play. (See DE 63, 67.) In particular, I note that the December 23, 2016 correspondence between the Padilla Law Group and Dr. Harbut, produced in compliance with my order, gives every indication of a legal client being sent to a potential expert, rather than a patient reaching out for medical treatment so as to alleviate his ailments. The letter from the Padilla Law Group starts with a reference line containing the name of this court case, and substantively begins with the salutation, “I represent Robert Guldenstein regarding an industrial exposure to hydrogen sulfide (H2S)[, ]” and then “attach[es] for your review the following records[, ]” including but not limited to Plaintiff's deposition transcript. (DE 73 at 17 (emphasis added).)[1]

         Dr. Harbut's one-time record, in turn, freely admits that “Mr. Guldenstein is here with his wife for a medicolegal evaluation and treatment[, ]” although there appears to have been no “treatment.” (DE 68-9 at 2.) Merit correctly points out that the term medicolegal is defined by Merriam-Webster's dictionary as “of or relating to both medicine and law[, ]” and is used in legal literature interchangeably with the terms “Independent Medical Examination” and “IME.” (DE 68 at 16; DE 68-13.) Of even greater weight to the Court is the fact that Black's Law Dictionary (10th ed.) defines medicolegal as: “Involving the application of medical science to law.” Id. at 1131. Tellingly, Black's then prompts the reader to also “See FORENSIC MEDICINE.” Id.

         Finally, the Harbut office record itself is indicative of an evaluation at the behest of an attorney, consistent with the Padilla Law Group letter, not of a physician offering actual treatment to a patient. Notably, the sections designated for “Assessment & Plan” and “Current Plans” are left completely blank. As Merit accurately observes, despite Dr. Harbut running some pulmonary function analysis, referring Plaintiff to Drs. Williams and Silverman for further testing, and his vague recommendation of “cardiopulmonary exercise[, ]” there is no evidence of Dr. Harbut actually providing any treatment or making any further appointments to see Mr. Guldenstein in the future. Connecting all of these dots, the Court concludes that Dr. Harbut is a late-found expert, not a late-found treater, and that he should not be permitted to testify, especially in light of the manner in which his role has been mischaracterized.

         Gerard Williams, Ph.D.

         Similarly, the two page, single visit record obtained from Dr. Gerard Williams make clear that there is no ongoing treatment relationship between him and Mr. Guldenstein, indeed no treatment relationship at all. This is obvious from the following pertinent notations, quoted verbatim from DE 68-11 (with bolded emphasis added):

Procedure Codes: CPT 90791 PSYCH DIAGNOSTIC EVALUATION
Initial Treatment Plan: Conduct Npsych eval.
Estimated Length of Treatment: eval only
Patient Referred Out and Summary of Care Provided: ...

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