United States District Court, D. South Dakota, Southern Division
ORDER DENYING DEFENDANT'S MOTION TO EXCLUDE
EXPERTS AND RENEWAL OF DEFENDANT'S MOTION FOR SUMMARY
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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
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.
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.
United States's Motion to Exclude Experts
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