Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Oskar v. United States

United States District Court, D. South Dakota, Southern Division

July 10, 2017

JOHN RAYMOND OSKAR, III, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO EXCLUDE EXPERTS AND RENEWAL OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Defendant, United States of America, moves for the exclusion of experts and renews its motion for summary judgment on all claims asserted by plaintiff, John Raymond Oskar, III. Docket 32. Oskar resists the motion. For the following reasons, the court denies the motion.

         FACTUAL BACKGROUND

         On September 11, 2014, Oskar filed a medical malpractice suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)(1). Docket 1. In late March and early April of 2008, Oskar was treated at the Veterans Administration Medical Center (VAMC) in Sioux Falls, South Dakota, for pancreatitis and was diagnosed with an intestinal perforation. Id. On April 9, 2008, Oskar's doctor at the VAMC, Dr. Jagdish Gill, recommended that Oskar be sent to a hospital that was better equipped to deal with pancreatitis patients. Id. at 2. Instead, on April 10, 2008, Oskar was released from the VAMC. Docket 15 ¶ 2. From September 13, 2009, to September 28, 2009, Oskar was back at the VAMC for further treatment for his pancreatitis. Id. ¶ 3. On September 28, 2009, Oskar needed emergency surgery because of his necrotizing pancreas. Id. ¶ 4. Because the VAMC was not equipped to handle Oskar's pancreas surgery, he was sent from the VAMC to Sanford Health Hospital in Sioux Falls, South Dakota. Docket 1 at 3. The surgery was necessary in order to debride Oskar's pancreas and repair his intestinal perforation. Id. Although Oskar survived surgery, he was in a coma for more than ten days and required a lengthy recovery. Docket 22 ¶¶ 28, 55.

         Oskar claims that a medication prescribed to him by the VAMC, Seroquel, was the cause of his pancreatitis. Docket 15 ¶ 6. After the surgery for his pancreatitis, Oskar claims his illness intensified because the VAMC failed to ascertain whether his intestinal perforation was resolved surgically at Sanford Health. Id. ¶ 5. Oskar's intestinal perforation persisted until he was treated for it in October 2011. Docket 1 at 5. Oskar also claims that the VAMC's failure to treat his pancreatitis caused him to develop insulin dependent diabetes. Id. at 1.

         On August 18, 2010, Oskar filed a tort claim against the VAMC. Docket 4. On March 12, 2012, the Veterans Administration (VA) denied Oskar's claim. Id. Oskar applied for reconsideration of his tort claim, and the VA denied his claim again on March 26, 2014. Id.

         PROCEDURAL BACKGROUND

         Having properly exhausted his administrative remedies, Oskar, acting pro se, filed suit against the United States on September 11, 2014. Docket 1. The court's first scheduling order set the deadline for disclosure of Oskar's expert witnesses as June 12, 2015, but the deadline passed without Oskar disclosing any expert witnesses. Docket 14 at 2. On August 6, 2015, the United States moved for summary judgment or in the alternative for the partial dismissal of Oskar's claims from March and April 2008. Docket 13. On November 24, 2015, attorney Wanda Howey-Fox filed a notice of appearance on behalf of Oskar. Docket 17. Due to the appearance of counsel, Oskar was granted an extension to respond to the United States's motion for summary judgment or partial dismissal. Docket 20. Oskar filed his response in opposition to the United States's motion on January 8, 2016. Docket 21. On February 26, 2016, the court denied the United States's motion for summary judgment or partial dismissal and granted Oskar additional time to obtain an expert witness. Docket 26 at 9. Thus, the court entered a second amended scheduling order, giving Oskar until June 24, 2016, to disclose the identity and reports from his retained experts under Rule 26(a)(2) of the Federal Rules of Civil Procedure. Docket 27 ¶ 2.

         On June 24, 2016, Oskar disclosed a list of four physicians he planned to use as expert witnesses, which consisted of Dr. Gill from the VAMC, and Dr. Matthew Sorrell, Dr. Eric S. Rolfsmeyer, and Dr. Ashraf Elshami from Sanford Health. Docket 28. None of Oskar's disclosures were accompanied by the physician's curriculum vitae or by an expert report. Id. Each disclosure contained a paragraph covering the events about which Oskar anticipated the physician would testify. Id. On July 19, 2016, the United States advised Oskar by letter that his one physician from the VAMC, Dr. Gill, could not act as an expert witness for Oskar under 38 C.F.R. § 14.808, which prohibits VA personnel from providing opinion or expert testimony against the United States. Docket 34-2.

         On April 21, 2017, the United States moved to exclude Oskar's disclosed experts and renewed its motion for summary judgment. Docket 32. On May 10, 2017, Oskar filed his response in opposition to the United States's motion. Docket 35.

         DISCUSSION

         I. United States's Motion to Exclude Experts

         A. Legal Standard

         Federal Rule of Evidence 702 governs the admissibility of expert testimony in this court. Fed.R.Evid. 702. Under Rule 702, the trial court acts as a “gatekeeper” by screening a party's proffered expert testimony for its reliability and relevance. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (“The objective of [the gatekeeping] requirement is to ensure the reliability and relevancy of expert testimony.”). “The rule clearly ‘is one of admissibility rather than exclusion.' ” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (quoting Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir. 1991)). Thus, “[t]he exclusion of an expert's opinion is proper only if it is ‘so fundamentally ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.