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Reber v. Laboratory Corporation of America

United States District Court, S.D. Ohio, Eastern Division

September 6, 2017

BRYAN D. REBER, Plaintiff,

          OPINION & ORDER


         This matter is before the Court on several matters: (1) Defendants Laboratory Corporation of America and Laboratory Corporation of America Holdings' (collectively, “LabCorp” or “Defendants”) Motion to Exclude Plaintiff's Experts (Doc. 61); (2) Defendants' Motion to Strike Portions of Plaintiff's Recent Filings (“Motion to Strike”) (Doc. 78); (3) Plaintiff's Motion for Leave to File Surreply in Opposition to Defendants' Motion to Strike (“Motion for Surreply”) (Doc. 89); (4) Defendants' Motion for Summary Judgment (Doc. 62); and (5) Plaintiff's Motion for Partial Summary Judgment as to Defendants' Comparative Fault/Third Party Liability Affirmative Defenses (“Motion for Partial Summary Judgment”) (Doc. 73).

         For the reasons that follow, the Court: (1) GRANTS in part and DENIES in part Defendants' Motion to Exclude Plaintiff's Experts (Doc. 61); (2) GRANTS in part and DENIES in part Defendants' Motion to Strike (Doc. 78); (3) GRANTS Plaintiff's Motion for Surreply (Doc. 89); (4) GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment (Doc. 62); and (5) DENIES Plaintiff's Motion for Partial Summary Judgment (Doc. 73).

         I. BACKGROUND

         A. Factual Background

         Plaintiff Bryan D. Reber commenced this personal injury, medical negligence, and wrongful death action against Defendant LabCorp and one of LabCorp's cytotechnologists, Jessica Queen, after the death of his wife, Lisa Kay Reber. On April 11, 2011, Mrs. Reber's gynecologist, Dr. Shelley Thompson, performed a Pap smear on her in Fairfield County, Ohio and sent the specimen on a slide to Defendant LabCorp for testing and interpretation. Defendant Queen tested the Pap smear slide at LabCorp's Charleston, West Virginia facility and signed the Pap Smear Report, indicating that it tested “negative for intraepithelial lesion and malignancy, ” which indicates a normal result. No physician reviewed the slide. In fact, the April 2011 slide revealed abnormalities. Defendant LabCorp sent the results to Dr. Thompson, who instructed her to return for a follow-up visit and Pap test in April 2012.

         Mrs. Reber got her next Pap test on December 10, 2012. Two days later, she was diagnosed with an aggressive form of cervical cancer. Over the next several months, Mrs. Reber underwent a radical hysterectomy and received chemotherapy and radiation. She and her sister discussed hiring a lawyer in July 2013. She died on December 25, 2013.

         B. Procedural Background

         Plaintiff, Mrs. Reber's husband, brought this lawsuit against LabCorp on December 20, 2014, alleging alternative claims for negligence (Count I) and medical negligence (Count II) for misinterpreting and reporting the results of the April 2011 slide, which caused the delay in diagnosing and treating Mrs. Reber's cervical cancer. He also brought a wrongful death claim (Count III) from the “significant delay in diagnosing her cervical cancer.” (Doc. 1 at ¶¶ 22-37.)

         Plaintiff further alleges, in paragraphs 37 to 48 of the complaint in a section titled “Claims for Relief of Plaintiff Against LabCorp, ” that he is entitled to punitive damages because LabCorp's failure to exercise reasonable care in interpreting Mrs. Reber's Pap smear slide was “a product of LabCorp's systemic and intentional business practice that places LabCorp's interest before the welfare of the patients.” (Id. ¶ 39.) Plaintiff alleges that LabCorp fails to provide sufficient educational instruction to its cytotechnologists and to make downward adjustments in the number of slides each cytotechnologist is required to screen even when the cytotechnologists' error rates are high. (Id. ¶¶ 41-43.) The Court granted LabCorp's Motion to Dismiss Plaintiff's allusion to a fraud claim in paragraph 46, but otherwise denied LabCorp's Motion to Dismiss Plaintiff's punitive damages claim. (Doc. 31 at 9-12.)

         This Opinion & Order addresses the following motions, which are ripe for review: (1) Defendants' Motion to Exclude Plaintiff's Experts (Doc. 61); (2) Defendants' Motion to Strike (Doc. 78); (3) Plaintiff's Motion for Leave to File Surreply (Doc. 89); (4) Defendants' Motion for Summary Judgment (Doc. 62); and (5) Plaintiff's Motion for Partial Summary Judgment (Doc. 73). Before the Court addresses those issues, however, the Court must resolve whether the Plaintiff's claim is a “medical claim” under Ohio law.

         II. ANALYSIS

         A. Plaintiff's Claim for Negligence Is Not a “medical claim” under Ohio Statute

         A threshold matter to both Defendants' Motion to Exclude Plaintiff's Experts and Defendants' Motion for Summary Judgment is whether Plaintiff's claims for negligence in Count I and medical negligence in Count II are “medical claims” under Ohio Revised Code § 2305.113(E)(3).

Under Ohio Revised Code § 2305.113(E)(3), a “medical claim” is any claim that is asserted in any civil action against a physician, podiatrist, hospital, home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home, or residential facility, or against a licensed practical nurse, registered nurse, advanced practice registered nurse, physical therapist, physician assistant, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical technician-paramedic, and that arises out of the medical diagnosis, care, or treatment of any person[.]

Ohio Rev. Code § 2305.113(E)(3). The Ohio Supreme Court has held that this statute is “plain and unambiguous” in requiring the claim to be “asserted against one or more of the specifically enumerated medical providers” listed in § 2305.113(E)(3), as well as requiring the claim to “arise[] out of medical diagnosis, care, or treatment.” Estate of Stevic v. Bio-Medical Application of Ohio, Inc., 121 Ohio St.3d 488, 491 (Ohio 2009). Because the “medical claim” definition is “plain and unambiguous, ” the Court “must give full meaning to all of the express statutory language.” Id. And the statute “specifically lists and defines the types of claims included within its ambit.” Id. at 490.

         Plaintiff points out that cytotechnologists are not specifically enumerated in the statute; on this basis, he argues that his lawsuit is not a “medical claim.” (Doc. 70 at 9.) In addition to Stevic, Reber cites two Ohio trial court cases finding that § 2305.113(E)(3) excludes pharmacists because they are not specifically enumerated in the statute. Moore v. Covenant Care Ohio, Inc., No. CI 201202706, 2013 Ohio Misc. LEXIS 159, at *6 (Ohio Ct. Com. Pl. Oct. 29, 2013) (“However, the Court does not find that pharmacists are expressly included in the statute's definition of medical professionals. Accordingly, the application of R.C. 2305.113 to the present claims would, improperly expand the legislature's, [sic] intent and constitute an unsupported interpretation of the same.”); Yerkey v. Spectrum Orthopaeducs, Inc., Ohio Ct. Pleas No. 2016-cv-00794, Doc. 70 at 22 (“The Court finds that the General Assembly went to great lengths in specifically listing the medical providers to whom the term ‘medical claim' applied, and had the General Assembly intended to include claims against a pharmacist it would have done so.”).

         Reber also cites a series of cases interpreting Ohio Revised Code § 2305.11(A), which sets a one-year statute of limitations for “malpractice other than an action upon a medical, dental, optometric, or chiropractic claim[.]” Ohio Rev. Code § 2305.11(A). These cases show that the Ohio Supreme Court, and other Ohio courts, refuse to interpret § 2305.11(A) to include related but non-enumerated disciplines to the list “malpractice . . ., medical, dental, optometric, or chiropractic claim.” Thompson v. Cmty Mental Health Ctrs. of Warren Cty., Inc., 642 N.E.2d 1102, 1104 (Ohio 1994) (“Having expressly included some disciplines heretofore excluded, it is not logical to assume that other disciplines are to be joined by silent implication. We conclude that a cause of action arising from the claimed negligence of a licensed independent social worker, a licensed psychologist or a licensed mental health care facility is not a claim for malpractice and is therefore not governed by R.C. 2305.11.”); Whitt v. Columbus Co-op. Enters, 415 N.E.2d 985, 987 (Ohio 1980) (“If the General Assembly had wished to protect groups which are not traditionally associated with malpractice, such as optometrists and dentists, it would have listed them under R.C. 2305.11(A), as it did by amendment for podiatrists and hospitals, or included them in an expanded definition of ‘physician' under R.C. 2305.11(D). . . . Accordingly, we find that negligence by an optometrist is not within the meaning of malpractice under R.C. 2305.11(A).”); Hocking Conservancy Dist. v. Dodson-Lindblom Assocs, Inc., 404 N.E.2d 164, 166-67 (Ohio 1980) (holding that 2305.11(A) includes “malpractice, ” which is limited to the acts of physicians or lawyers, plus the specifically statutorily-enumerated categories, but not engineers); Richardson v. Doe, 199 N.E.2d 878, 880 (Ohio 1964) (negligence of a nurse falls outside 2305.11(A)); Campbell v. Beliscus, No. C-880605, 1989 Ohio App. LEXIS 3706, at *5-6 (Ct. App. 1st Dist. Sep. 27, 1989) “Whether the appellee . . . was a jeweler, a laboratory technician, a pseudo-dentist, an immigrant or a gypsy, it is clear from the record that her occupation was not one enumerated by [2305.11(A)] or falling within the common-law definition of malpractice so as to be given the special protection of a one-year statute of limitations.”); Reese v. K-Mart Corp., 443 N.E.2d 1391, 1392 (Ohio Ct. App. 10th Dist. 1981) (same for pharmacists).

         Defendants attempt to distinguish the cases interpreting Ohio Revised Code § 2305.11(A) on the grounds that “medical malpractice” is different from a “medical claim.” (Doc. 81 at 9.) While the Court agrees that the concepts are not the same, the Ohio Supreme Court's interpretation of a similar list of specifically-enumerated providers has some persuasive value regarding how the Ohio Supreme Court would interpret Ohio Revised Code § 2305.113. Defendants also argue: (1) Ohio courts have found claims outside the enumerated medical providers to be “medical claims;” (2) Plaintiff's “pharmacist” cases are unpersuasive; and (3) the facts of this case militate in favor of considering Plaintiff's claim to be a “medical claim.” (Doc. 81 at 4-8.)

         Defendants are mistaken in arguing that Ohio courts have gone outside the enumerated categories of Ohio Revised Code § 2305.113(E)(3). For this position, Defendants cite Schumacher v. Corrections Corporation of America, No. 4:15-CV-01919, 2016 WL 3629015, at *3 (N.D. Ohio July 7, 2016), St. John v. Bosley, Inc., 481 F. App'x 988, 990 (6th Cir. 2012), Bartley v. Hearth & Care of Greenfield, L.L.C., 2013-Ohio-279, ¶ 8 (Ohio App. 4 Dist. 2013), Tisdale v. Toledo Hosp., 967 N.E.2d 280, 291 (Ohio App. 6 Dist. 2012), and York v. Hutchins, 2014-Ohio-988, ¶¶ 12-14 (Ohio Ct. App. 12th Dist. 2014). Each of these cases, however, lead back to the enumerated categories. Defendants cite Schumacher for the proposition that “the requirements of Civ. R. 10(D)(2) and R.C. 2305.113 apply in prison inmate medical claims.” Schumacher, 2016 WL 3629015, at *3. Tracing Schumacher back, however, leads right back to the enumerated category “hospital.” Schumacher relies on Foster v. Department of Rehabilitation & Correction, 2013-Ohio-912, ¶ 33 (Ohio App. 10 Dist. 2013), which in turn relies on Franks v. Department of Rehabilitation & Correction, 958 N.E.2d 1253, 1256-57 (Ohio App. 10 Dist. 2011). Franks, citing another Ohio Appellate court, found the Ohio Department of Rehabilitation and Correction to be a “hospital under the statutory definition.” Franks, 958 N.E.2d 1253, 1256-57 (Ohio App. 10 Dist. 2011) (emphasis added). St. John, too, finds defendants to be in an “expressly covered” category-doctors. 481 F. App'x at 990. And Bartley cites Tisdale, which holds that “medical employees, such as nurses, technicians or other assistants . . . are amenable to ‘medical claims.'” Bartley, 2013-Ohio-279, ¶ 8 (emphasis in original). The statute expressly covers an “employee or agent of a physician, podiatrist, hospital, home, or residential facility, ” and Defendants do not argue that the cytotechnologist is such an employee.[1] Rather, they argue that courts go outside the statutory categories. As the cases Defendants cite make clear, courts do not. Finally, York deals with a claim against doctors involved in performing unnecessary surgery on her-again, a specifically-enumerated category. 2014-Ohio-988 at ¶ 4.

         These cases do not convince the Court to deviate from the list of medical providers specifically enumerated in the statute. The Ohio legislature chose to include a specific list of medical providers in the definition of “medical claim, ” including three distinct types of emergency medical technician. While drafting the statute, the legislature undoubtedly was aware of the existence of cytotechnologists (especially given their role, as related by defense counsel at oral argument, in Pap tests, the most effective means of reducing cancer risks), just as it was aware of the existence of pharmacists. Expressio unis est exclusio alterius, the mention of one excludes the other. Had the legislature intended to include cytotechnologists or non-hospital-affiliated laboratories in the definition of “medical claim, ” it would have. Because a cytotechnologist does not fall within the statutorily-enumerated categories, a claim of negligence against the cytotechnologist in this case is not a “medical claim” under Ohio statutory law.[2]

         B. Defendants' Motion to Exclude Plaintiff's Experts

         LabCorp argues that two of Plaintiff's experts, Dr. Rosenthal and Ms. Tan, must be excluded because: (a) a nine-page portion of their opinions (which LabCorp terms the “Lab Deficiency Opinions”) was ghostwritten by Plaintiff's counsel; (b) the experts are not qualified to issue their opinions; and (c) the opinions are devoid of any reliable methodology.

         1. Standard of Review

         Federal Rule of Evidence 702 governs the testimony of expert witnesses as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

This rule reflects the Supreme Court's decisions in Daubert and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528 (6th Cir. 2008).

         Together, Rule 702, Daubert, and Kumho Tire establish that district courts may admit expert testimony if it satisfies three requirements. Id. at 528-29 (describing the district courts' responsibility “of acting as gatekeepers to exclude unreliable expert testimony”). First, “the witness must be qualified by ‘knowledge, skill, experience, training, or education.'” Id. at 529 (quoting Fed.R.Evid. 702). Second, the testimony “must be relevant, meaning that it will assist the trier of fact to understand the evidence or to determine a fact in issue.” Id. (quotation omitted). Third, “the testimony must be reliable.” Id. To be relevant, expert testimony must “fit” with the issues to be resolved at trial. Greenwell v. Boatwright, 184 F.3d 492, 496 (6th Cir. 1999). The reliability requirement, in turn, focuses on the methodology and principles underlying the testimony. Id. at 496-97. The proponent of the testimony-in this case, Plaintiff-must establish admissibility by a preponderance of the evidence. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001) (citing Daubert, 509 U.S. at 592 n.10).

         2. Ghostwriting

         Defendants argue that the reports of Dr. Rosenthal and Ms. Tan must be stricken for failure to comply with Federal Rule of Civil Procedure 26(a)(2)(B), which requires an expert report to be “prepared and signed by the witness.” Fed.R.Civ.P. 26(a)(2)(B). The 1993 Advisory Notes to Rule 26(a)(2)(B) provide that the rule “does not preclude counsel from providing assistance to experts in preparing the reports. . . . Nevertheless, the report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness.” Fed.R.Civ.P. 26(a)(2)(B).

         Because Plaintiff's counsel “ghostwrote” the Lab Deficiency Opinions, which comprise nine pages of the reports, Defendants claim that the reports were not “prepared” by the witnesses. Defendants argue that the Lab Deficiency Opinions were “ghostwritten” by Plaintiff's counsel because: (a) the nine pages in each report are identical, even though they purportedly come from separate experts; (b) the reports are “stuffed” with legal rhetoric; (c) Plaintiff's counsel withdrew parts of Ms. Tan's report without consulting her; and (d) Plaintiff's experts could not explain parts of their Lab Deficiency Opinions during their depositions.

         This violation of Rule 26(a)(2)(B), Defendants argue, requires exclusion under Rule 37(c)(1), which provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) . . . 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). Further, Defendants maintain that this failure irretrievably taints the experts' credibility such that the Court should strike their entire reports.

         Plaintiff responds by withdrawing one of the three opinions contained in the Lab Deficiency Opinions, [3] and by arguing that the remaining opinions conformed with the federal rules even if counsel was involved in their creation. He argues that the remaining opinions “were developed through independent analysis, ” though tellingly he does not attribute this analysis to the experts. (Doc. 69 at 10-12.) Instead, he uses the term “we” while describing the calculations. (Id.)[4] Plaintiff also argues that the “fundamental opinions, ” the opinions regarding Ms. Queen's negligence, should not be excluded even if the Court excludes the Lab Deficiency Opinions. (Doc. 60 at 2-10.)

         Defendants argue that Plaintiff's counsel's wholesale crafting and drafting the Lab Deficiency Opinions precludes their use at trial. Indeed, the question of “[w]hether an expert report was prepared in a manner consistent with the mandates of Rule 26, usually turns on whether counsel's participation so exceeds the bounds of legitimate assistance as to negate the possibility that the expert actually prepared his own report[.]” Bekaert Corp. v. City of Dyersburg, 256 F.R.D. 573, 578 (W.D. Tenn. 2009) (excluding declaration that was initially prepared by counsel, and of which expert could not identify any portion that “could be said to have been his testimony.”). In other words, “the expert must substantially participate in the preparation of his report.” Id. And “substantial participation” means that an attorney may help fine-tune a report, but may not “prepar[e] the expert's opinion from whole cloth and then ask[] the expert to sign it if he or she wishes to adopt it[.]” Id. See also James T. Scatuorchio Racing Stable, LLC v. Walmac Stud Management, LLC, 2014 WL 1744848, at *6 (E.D. Ky. 2014) (excluding under Rule 37(c)(1) expert report that was 90% prepared by defense counsel, because “‘preparation' means involvement in the creation rather than ‘perusing a report drafted by someone else and signing one's name at the bottom to signify agreement.'”); In re Jackson Nat. Life Ins. Co. Premium Litigation, No. 96-MD-1122, 2000 WL 33654070, at *2 (W.D. Mich. Feb. 8, 2000) (affirming magistrate judge decision excluding under Rule 37(c) expert whose entire report was written by Plaintiff's counsel, and who testified untruthfully during his deposition regarding this authorship).

         Plaintiff cites United States v. Kalymon, 541 F.3d 624 (6th Cir. 2008) to argue that his counsel's involvement in the Lab Deficiency Opinions comported with the federal rules. In Kalymon, the experts “told government counsel their substantive opinions, and then counsel reduced those opinions to writing for the experts' review and signature.” Id. at 637. According to the Sixth Circuit, “there is nothing inherently nefarious in this . . . . A party's attorney can reduce an expert's oral opinion to writing so long as the report reflects the actual views of the expert.” Id. at 638. See also Tindall v. H & S Homes, LLC, No. 5:10-CV-044, 2012 WL 3241885, at *1 (M.D. Ga. Aug. 7, 2012) (“The Court is not convinced, however, that counsel's assistance and involvement in drafting the report is completely prohibited-even if the assistance involves preparing the entire first draft-so long as there is ‘prior, substantive input' [(here, multiple, lengthy telephone conversations and evidence that the expert modified the draft)] from the expert witness.); Manning v. Crockett, No. 95 C 3117, 1999 WL 342715, at *2 (N.D. Ill. May 18, 1999) (denying without prejudice the plaintiffs' motion to exclude expert report that is substantially similar to the complaint for lack of evidence supporting the conclusion that the expert “lacked significant personal involvement in the preparation of his report.”); Keystone Mfg. Co., Inc. v. Jaccard Corp., 394 F.Supp.2d 543, 568 (W.D.N.Y. 2005) (declining to disqualify expert who swore that he “was substantially involved in the preparation of his expert report and the opinions contained therein are his”).

         In Reber's case, however, there is no evidence that Plaintiff's counsel simply took down the experts' oral opinions or that the experts had substantial involvement in the preparation of the Lab Deficiency Opinions. On the contrary, the following evidence supports the idea that Plaintiff's counsel “prepar[ed] the expert[s'] opinion[s] from whole cloth and then ask[ed] the expert[s] to sign it if [they] wishe[d] to adopt it, ” Bekaert, 256 F.R.D. at 578:

(a) Dr. Rosenthal's and Ms. Tan's Lab Deficiency opinions are word-for-word identical;
(b) Dr. Rosenthal stated in her deposition that she would not have calculated error rates in the way that her Lab Deficiency Opinion appears to have calculated them (Rosenthal Dep., Doc. 61-12, at 420:22-421:14);
(c) Dr. Rosenthal stated in her deposition that, looking at a wider breadth of data, the Lab Deficiency Opinion on discrepancy rates does not necessarily hold (id. at 446:8-14);
(d) Ms. Tan testified in her deposition that she did not write or edit any draft of her report; rather, she went over the report after Plaintiff's counsel drafted it, and that she “verified all the calculations and understood the bases for all of the opinions” (Tan Dep., Doc. 62-9, at 312:13-21, 316:5-317:15.);
(e) Ms. Tan was “blindly told” by Plaintiff's counsel that Plaintiff was withdrawing some of her opinions (id. at 319:21-24); and
(f) Ms. Tan did not ask why Plaintiff's counsel decided to withdraw some of her opinions (id. at 320:1-2).

         Based on the foregoing, the Court cannot find that Dr. Rosenthal or Ms. Tan had “involvement in the creation rather than ‘perusing a report drafted by someone else and signing one's name at the bottom to signify agreement.'” Scatuorchio, 2014 WL 1744848, at *6. As such, the Lab Deficiency Opinions violate Rule 26, and must be ...

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