The opinion of the court was delivered by: J. Leon Holmes United States District Judge
Molly M. Jones is the mother of Cody Kelley, who died on July 23, 2002, allegedly because of a brain abscess that resulted from a severe ear infection. Cody was eleven years of age. Jones brings this action individually, as administrator of Cody's estate, and on behalf of his estate and wrongful death beneficiaries against William C. Young, M.D.; David M. Lewis, M.D.; Otolaryngology & Facial Surgery Centre of Northeast Arkansas, P.A.; Jonathan C. Welsh, M.D.; Associated Radiologists, Ltd.; St. Bernards Healthcare; and John Does 1-10.
On July 22, 2002, Jones took Cody to the Otolaryngology & Facial Surgery Centre ("Otolaryngology Centre") where he was seen by Dr. Lewis, who ordered a CT scan. Lewis sent Cody to St. Bernards Healthcare where the CT scan was performed by Dr. Welsh, a radiologist. The CT scan showed an abscess formation in the left cerebellar hemisphere of Cody's brain. According to the complaint, that condition needed immediate surgical intervention to prevent Cody's death. Dr. Welsh reviewed the CT scan and attempted to talk to Dr. Lewis but was unable to do so because the CT scan was not performed until 5:56 p.m., by which time Dr. Lewis had left his office. Dr. Young was on-call for the Otolaryngology Centre, so Dr. Welsh contacted Dr. Young and discussed the results of the CT scan with him. Dr. Young allegedly instructed Dr. Welsh to send Cody home and have him visit the Otolaryngology Centre at 8:30 a.m. the next morning, July 23. Cody was released and sent home. He died in the early morning hours of July 23.
Jones has filed a motion for partial summary judgment and a related motion to strike and exclude the testimony of defendants' expert, Dr. Michael Radetsky. St. Bernards Healthcare has filed a motion for summary judgment. Jones has filed a motion to amend her complaint. For the reasons stated hereinafter, Jones's motion for partial summary judgment and the related motion to strike and exclude the testimony of Dr. Radetsky will both be denied; the motion for summary judgment filed by St. Bernards Healthcare will be denied; and the motion to amend complaint will be granted in part and denied in part.
A court should enter summary judgment if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202 (1986); Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 850 (8th Cir. 2005). A genuine issue of material fact exists only if there is sufficient evidence to allow a jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.
On February 14, 2007, Jones filed her motion for partial summary judgment on the issue of liability as to defendants Young, Lewis, the Otolaryngology Centre, Welsh, and Associated Radiologists, Ltd., arguing that the defendants had failed to designate any nonparty expert witness as required by Rule 26(a)(2) of the Federal Rules of Civil Procedure and therefore were unable to meet proof with proof on the issues of liability. Thereafter, the defendants identified Dr. Radetsky, who submitted an affidavit and, after the trial was continued, was deposed. His testimony creates a genuine issue of material fact on the issues of liability.
In her motion to strike, Jones argues that Dr. Radetsky should be excluded from trial because he refused to answer a question regarding the amount of income that he earns doing work as a trial consultant. The parties have cited cases ruling both ways on the issue of whether an expert's income can be discovered. In Behler v. Hanlon, 199 F.R.D. 553 (D. Md. 2001), the court explained:
The importance of credibility of witnesses to the trial of cases cannot be overstated, and this is especially true with respect to expert witnesses. The rules of evidence provide frequent reminders of the importance of credibility issues in trials. Rule 611(b) defines the scope of cross-examination to include the subject matter of testimony developed during direct examination, as well as matters affecting the credibility of the witness. Rule 104(e) teaches that the mere fact that the court has admitted evidence at trial does not mean that it must be given any particular weight by the fact finder, and preserves the right of opposing parties to attack the credibility of witnesses.
Although not directly covered by a specific rule of evidence, a witness may be impeached by showing that he or she is biased, has an interest in the outcome of the litigation, is prejudiced in some relevant way, or has a motive to testify in a particular way. . . . [T]he fact that an expert witness may have a 20 year history of earning significant income testifying primarily as a witness for defendants, and an ongoing economic relationship with certain insurance companies, certainly fits within the recognized examples of bias/prejudice impeachment, making such facts relevant both to the subject matter of the litigation, and the claims and defenses raised . . . .
Id. at 556-57 (citations and footnotes omitted). Eighth Circuit Model Jury Instruction (Civil) No. 3.03 states that in deciding what testimony to believe, the jury may consider "any motives a witness may have for testifying a certain way . . . ." (Emphasis added.) The income that an expert derives from litigation-related activities and whether that income is predominantly earned from plaintiffs or defendants relates to the motives that a witness may have for testifying a certain way. As the Supreme Court of Kentucky has stated, "the jury should be able to assess possible bias on the part of an expert witness if it is made aware of the amount and percentage of gross income attributable to providing expert witness services." Primm v. Isaac, 127 S.W.3d 630, 637 (Ky. 2004). Jones is entitled to inquire of Dr. Radetsky regarding the extent of the income that he earns in litigation-related matters.
However, the fact that Dr. Radetsky failed to provide that information during his deposition does not justify striking his testimony at trial. The appropriate response to Dr. Radetsky's refusal to answer a question would have been for Jones to file a motion to compel discovery pursuant to Rule 37(a)(2)(B) of the Federal Rules of Civil Procedure. No such motion was filed. Dr. Radetsky was deposed on April 24, 2007, nearly three months before the discovery deadline, so there was ample time to file a motion to compel. Had a motion to compel been filed, had an order been entered compelling Dr. Radetsky to answer, and then had Dr. Radetsky refused to answer, the Court might have imposed sanctions pursuant to Rule 37(b). Such potential sanctions could have included barring Dr. Radetsky's testimony at trial. However, as noted, no motion to compel was filed, so Dr. Radetsky has never been ordered to answer the question regarding how much of his income is derived from litigation-related activities. The Court will not strike and exclude the testimony of Dr. Radetsky.
Because Dr. Radetsky's testimony is sufficient to create a genuine issue of material fact, and because the Court will not strike or exclude the testimony of Dr. Radetsky, Jones's ...