Shipp v. Arnold

          ORDER

          Susan O. Hickey Chief United States District Judge

         Before the Court is an Expedited Motion to Exclude Expert filed by Separate Defendants Dr. Mimo Lemdja; Lenora Turner; Kindall Smith; and Correct Care Solutions, LLC (the “Medical Defendants”). (ECF No. 89). Separate Defendant Steven Arnold has filed a response in support of the motion. (ECF No. 90). Plaintiff Craig Shipp has filed a response in opposition to the motion. (ECF No. 91). The Medical Defendants have filed a reply. (ECF No. 93). The Court finds the matter ripe for consideration.

         I. BACKGROUND

         On March 26, 2018, Plaintiff, filed an amended complaint in this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights when he was incarcerated in the Southwest Arkansas Community Correction Center in Texarkana, Arkansas. Plaintiff, a diabetic, alleges that Defendants deprived him of his orthotic shoes and inserts for several weeks, which caused injury that ultimately required the amputation of his foot. Plaintiff asserts a federal claim of Eighth Amendment deliberate indifference and a state-law claim of negligence.

         Plaintiff initially retained Dr. Joseph William Wright as his “jail and medical” expert. (ECF No. 80). Dr. Wright was a licensed physician, board certified in otolaryngology, ^[1] who spent eleven years practicing in the field of correctional medicine, serving as the medical director of the El Paso County Criminal Justice Center in Colorado Springs, Colorado. (ECF No. 89-1, p. 2). On June 7, 2019, the parties deposed Dr. Wright. On July 25, 2019, Plaintiff learned that Dr. Wright passed away.

         On August 1, 2019, Plaintiff filed a motion seeking leave to designate and substitute one or more expert witnesses to replace Dr. Wright. The Court granted that motion with the caveat that any new expert must hold substantively similar opinions that are not contrary to or inconsistent with Dr. Wright's opinions. (ECF No. 86, p. 5). The Court stated that Defendants could file a motion to exclude any portion of the replacement expert's testimony that concerned new opinions, theories, or subject matter.

         On October 3, 2019, the Medical Defendants filed the instant motion, indicating that Plaintiff retained a nursing expert, Lori Roscoe. Roscoe's expert report reveals that she is an Advanced Practice Registered Nurse and is a Certified Healthcare Professional-Registered Nurse. She has worked in various roles in correctional healthcare since 1995 and is currently the principal of Correctional HealthCare Consultants LLC.

         The Medical Defendants state that a review of Roscoe's expert report reveals multiple opinions that are either inconsistent with those of Dr. Wright's or concern subject matters that she is not qualified to opine on. Accordingly, they ask the Court to prohibit Roscoe from offering these opinions, effectively excluding her entirely as an expert. Separate Defendant Arnold joins in the motion, arguing for the same relief. Plaintiff opposes the motion.^[2]

         II. DISCUSSION

         The Medical Defendants state that Dr. Wright's expert report offered standard-of-care opinions only as to Separate Defendants Dr. Lemdja and Arnold. The Medical Defendants also state that at Dr. Wright's deposition, he offered a breach-of-standard-of-care opinion only as to Defendant Dr. Lemdja; that he specifically testified that Defendant Smith acted properly on February 5, 2016; that he testified that Defendant Turner was not at fault; and that he declined to opine as to the conduct of Correct Care Solutions, LLC because he had not been asked to evaluate that.

         The Medical Defendants ask the Court to exclude Roscoe's opinions, for various reasons. First, they state that Roscoe is a nurse, not a doctor, and accordingly, she cannot opine on the standard of care for physicians.^[3] Thus, they ask that the Court bar Roscoe from offering opinions related to Defendant Dr. Lemdja's medical judgment and treatment. Second, the Medical Defendants ask that the Court prevent Roscoe from offering nursing opinions as to any Defendant because those opinions either were not previously offered by Dr. Wright or otherwise conflict with Dr. Wright's opinions. Third, they ask the Court to prohibit Roscoe from offering “administrative” opinions as to Defendant Turner because those opinions either were not offered by Dr. Wright or otherwise conflict with his opinions. Fourth, they ask that the Court keep Roscoe from offering opinions as to Defendant Correct Care Solutions, LLC (“CCS”) because Dr. Wright offered no opinion as to CCS and because Roscoe's opinion is that CCS failed to properly train its employees, which is not a claim in this case. Finally, the Medical Defendants ask the Court to exclude Roscoe as an expert witness entirely because exclusion of all the above-listed opinions would effectively bar her from offering any of the opinions in her expert report.

         Separate Defendant Arnold has joined in the Medical Defendants' motion. He states that Roscoe's opinions as to him are inconsistent with those expressed by Dr. Wright and, thus, she should not be allowed to offer those opinions. Accordingly, Separate Defendant Arnold likewise asks that the Court exclude Roscoe as an expert witness.

         Plaintiff argues in response that Roscoe's opinions are substantially similar to those of Dr. Wright's. Specifically, Plaintiff argues that Dr. Wright specifically testified that his medical opinions were not limited to Defendant Dr. Lemdja. Plaintiff argues that Defendants' motion should be denied because they have time to cross-examine Roscoe on her opinions and obtain a rebuttal expert.

         As the Court explained in its August 27, 2019, order, the purpose of allowing substitution of another expert was to put Plaintiff in the same position he would have been in but for Dr. Wright's death. It was not an opportunity to designate a “better” expert who holds differing or more advantageous opinions than Dr. Wright. To that end, the Court held that any new expert must hold substantially the same ...