White v. GE Healthcare, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DONNA WHITE, Case No. 1:17-cv-212

Plaintiff, Dlott, J.

Litkovitz, M.J.

Vs.

GE HEALTHCARE, INC. et al., ORDER AND REPORT AND

Defendants. RECOMMENDATION

Proceeding pro se, plaintiff Donna White brings this action against defendant GE

Healthcare individually and as the administrator for the estate of Constance Lowe. This matter is

before the Court on plaintiffs motion for an extension of time to file expert witness disclosures

(Doc. 66) and defendant’s response in opposition (Doc. 69), as well as defendant’s motion to

strike plaintiff's expert witness disclosures (Doc. 70). This matter is also before the Court on

plaintiff's motion for leave to amend her complaint to add new party defendants (Doc. 67),

defendant’s response in opposition (Doc. 68), and interested parties Drs. John Hergenrother and

Gregory Stephens’ response in opposition (Doc. 72).

I. Motion for Extension of Time to File Expert Witness Disclosures (Doc. 65)

On August 2, 2019, plaintiff moved for an extension of time to file expert witness

disclosures, arguing that she continues to endure financial hardships and physical injuries as a

result of her accident in May 2019. (Doc. 65). That same day, plaintiff filed an expert disclosure

list naming two physician experts. (Doc. 66).

Defendant opposes plaintiff's motion for an extension of time, arguing that it would

cause further prejudice to GE as this case has been pending for two and a half years without yet

reaching the point of expert disclosures. (Doc. 69 at 4). Defendant argues that plaintiff's

repeated extensions for discovery and failure to disclose experts have inhibited GE from fully

formulating its defense and have delayed GE’s ability to pursue a dispositive motion. (/d.).

On June 4, 2019, this Court granted plaintiff an additional sixty days until August 5, 2019

to conduct the deposition of Dr. Hergenrother, the treating nephrologist, and to file expert

witness disclosures and submit expert reports in light of plaintiff's representation that she was

seriously injured in a car accident. (Doc. 61). The Court noted, in bold print, that no further

extensions of time would be granted. (/d.). Before this Order, in light of plaintiff's pro se status,

the Court extended the discovery deadline to April 4, 2019 and granted plaintiff numerous other

discovery-related extensions, including extensions to depose the treating nephrologist and

identify interrogatories that she believed were not answered in the production of documents

previously provided by GE. (Docs. 52, 56). Consistent with this Court’s June 4, 2019 Order,

plaintiff's motion is not well-taken. As defendant argues, this case has been pending for over

two years and granting plaintiff further extensions of time for discovery would be contrary to the

interests of judicial economy and fairness to defendant, and it would needlessly delay a

resolution of this matter. Plaintiff's motion for an extension of time to file expert witness

disclosures (Doc. 65) is therefore DENIED.

II. Defendant’s Motion to Strike (Doc. 70)

Defendant moves to strike plaintiff's expert witness disclosures that were filed on the

docket on August 2, 2019. (Doc. 70). Defendant argues that these disclosures fail to meet the

basic requirements of Federal Rule of Civil Procedure 26(a)(2)(B) because they simply list the

names of two purported experts with no further information. (/d.). Plaintiff has not filed a

response in opposition to this motion.

Pursuant to Rule 26, expert disclosures “must be accompanied by a written report—

prepared and signed by the witness—if the witness is one retained or specially employed to

provide expert testimony in the case. ...” Fed. R. Civ. P. 26(a)(2)(B). The report must contain

the following information: (i) a complete statement of all opinions the witness will express and

the basis and reasons for them; (ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them; (iv) the witness’s

qualifications, including a list of all publications authored in the previous 10 years; (v) a list of

all other cases in which, during the previous 4 years, the witness testified as an expert at trial or

by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in

the case. Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi). With regard to experts not retained or specially

employed to provide expert testimony in a case (i.e., treating doctors), the mere disclosure of the

expert’s identity is not enough. Ogle v. Koorsen Fire & Sec., Inc., 336 F. Supp. 3d 874, 877

(S.D. Ohio 2018). Disclosure of a non-retained expert’s identity must be accompanied by: (1)

the subject matter on which the witness is expected to present evidence under Federal Rule of

Evidence 702, 703, or 705, and (2) a summary of the facts and opinions to which the witness is

expected to testify. /d. (citing Fed. R. Civ. P. 26(a)(2)(C)).

As stated above, the deadline for plaintiff to file expert witness disclosures and submit

expert reports expired on August 5, 2019. The Court determined that no further extensions of

time would be granted. Plaintiff's timely expert disclosures filed on the Court’s docket on

August 2, 2019 provide only the names of two doctors: Dr. Catherine Patterson and Dr. Richard

Semelka. It is not clear whether these doctors are retained experts or non-retained treating

physicians. In the absence of any additional information, the expert disclosures provided by

plaintiff fall short of the requirements provided in Fed. R. Civ. P. 26(a)(2)(B) for those witnesses

“retained or specially employed to provide expert testimony in the case,” as well as the

requirements for non-retained experts outlined above. Giving plaintiff yet another opportunity to

make complete expert disclosures would “disrupt the orderly flow of litigation” and prejudice

defendant for the reasons stated above. See Ogle, 336 F. Supp. 3d at 881 (quoting Kassim v.

United Airlines, Inc., 320 F.R.D. 451, 454 (E.D. Mich. 2017)). Accordingly, defendant’s motion

to strike plaintiff's expert witness disclosures (Doc. 70) is GRANTED. The Clerk is directed to

STRIKE these disclosures (Doc. 66) from the docket.

III. Motion for Leave to Amend (Doc. 67)

Plaintiff moves to amend her complaint a second time! to add new party defendants,

including: Bracco Diagnostic, Inc., The Christ Hospital, Dr. John Hergenrother, Dr. Douglas

Collins, Dr. Gregory W. Stephens, Dr. Thomas A. Brown, and Dr. Phillip J. Munschauer. (Doc.

67). Plaintiff did not provide a memorandum arguing good cause in support of her motion and

instead filed the proposed second amended complaint on the docket. (/d.).

Defendant GE Healthcare opposes plaintiff's motion, arguing that plaintiff's motion is

extremely delayed and prejudicial. Defendant argues that discovery is closed, and it has

defended this matter and established its defenses for years based upon plaintiff's nephrogenic

systemic fibrosis (“NSF”) allegations related to a single magnetic resonance scan with Omniscan

in 2005. (Doe. 68 at 1). Defendant contends that plaintiff's motion “seeks to completely upend

the entire factual underpinnings of this suit, changing the number of MRI scans, introducing a

new gadolinium-based contrast agent (“GBCAs”) manufacturer, and bringing medical

malpractice claims.” (/d.). Defendant summarizes plaintiff's amended complaint as follows:

Plaintiff has sought leave to amend to allege (1) new products liability claims

against Bracco Diagnostics, Inc. (“Bracco”) for the use of its product in an MRA

[magnetic resonance angiography] procedure performed on Plaintiff on or around

January 9, 2007; (2) a wrongful death claim against Bracco, The Christ Hospital of

Cincinnati (“The Christ Hospital”), and various doctors [Drs. Hergenrother,

Munchauer, Brown, Stephens, and Collins] employed by The Christ Hospital; (3)

' Plaintiff was granted to leave to file an amended complaint in June 2017. (Doc. 18). Plaintiff's amended

complaint (Doc. 19) remains the operative complaint in this matter.

two medical malpractice claims against the various doctors employed by The Christ

Hospital; and (4) negligent hiring, retention, training, and supervision claims

against The Christ Hospital.

(/d. at 3). Defendant argues that these new parties and claims are unrelated to the claims pending

against GE arising out of Ms. Lowe’s March 2005 scan. (/d. at 4). Defendant also argues that

plaintiff has not exercised due diligence and has engaged in undue delay in attempting to amend

her complaint. (/d. at 7-8). Finally, defendant argues that plaintiffs proposed amended claims

are futile because they are barred by the applicable statutes of limitation. (/d. at 8-9). Interested

parties Drs. Hergenrother and Stephens likewise argue that plaintiff's medical malpractice claims

against them are barred by the one-year statute of limitations. (Doc. 72 at 1-2).

Fed. R. Civ. P. 15(a) governs amendments to the pleadings. A complaint may be

amended once as a matter of course within 21 days of service. Fed. R. Civ. P. 15(a)(1)(A). Ifa

plaintiff wishes to amend the complaint after the 21-day period has expired, it must obtain

written consent of the opposing party or leave of the Court. Fed. R. Civ. P. 15(a)(2). The

granting or denial of a motion to amend pursuant to Fed. R. Civ. P. 15(a) is within the discretion

of the trial court. Leave to amend a complaint should be liberally granted. Foman v. Davis, 371

U.S. 178 (1962). However, “[i]n deciding whether to grant a motion to amend, courts should

consider undue delay in filing, lack of notice to the opposing party, bad faith by the moving

party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the

opposing party, and futility of amendment.” Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d

996, 1001 (6th Cir. 2005). The test for futility is whether the amended complaint could survive a

Fed. R. Civ. P. 12(b)(6) motion to dismiss. Rose v. Hartford Underwriters Ins. Co., 203 F.3d

417, 421 (6th Cir. 2000).

Rule 20 governs permissive joinder. It provides that persons may be joined in one action

as defendants if “any right to relief is asserted against them jointly, severally, or in the alternative

with respect to or arising out of the same transaction, occurrence, or series of transactions or

occurrences,” and “any question of law or fact common to all defendants will arise in the

action.” Fed. R. Civ. P. 20(a)(2). Courts also consider the Rule 15(a) factors governing

amendments to pleadings when determining whether joinder of new parties is appropriate.

Dottore v. Nat'l Staffing Servs., LLC, No. 3:06-cv-01942, 2007 WL 2114668, at *3 (N.D. Ohio

July 20, 2007).

Plaintiff's motion for leave to file a second amended complaint should be denied. The

Court agrees with defendant that plaintiff's proposed amendments at this stage in the

proceedings are unduly prejudicial to defendant. As an initial matter, plaintiff has not attempted

to establish good cause for her filing of the second amended complaint after this case has been

ongoing for over two years, the discovery deadline has passed, and the deadline for expert

witness disclosures has expired. Plaintiff's proposed amendments to the complaint are far from

minimal and would alter the course of the litigation and defense. See Duggins v. Steak ‘N Shake,

Inc., 195 F.3d 828, 834 (6th Cir. 1999) (denying motion to amend where discovery would have

to be reopened and a new defense would be necessary to defeat the new claim). Plaintiff's

proposed amended claims reach far beyond the facts and claims alleged in her amended

complaint that Ms. Lowe was injected with Omniscan during a March 2005 scan and began

developing symptoms of Nephronic Systemic Fibrosis or Nephrogenic Fibrosing Dermopathy

(“NSF/NFD”) as a result. (See Amended Complaint, Doc. 19). For example, plaintiff seeks to

add claims related to Constance Lowe’s January 2007 scan where she received contrast dyes

allegedly produced by Bracco Diagnostics, Inc. and allegedly administered by radiologist Dr.

Munschauer. (Doc. 67 at { 32). Plaintiff seeks to add medical malpractice claims related to this

scan, as well as the March 2005 scan alleged in the amended complaint. Further, as defendant

argues, the proposed second amended complaint seeks to raise allegations concerning

gadolinium deposit disease (“GDD”), which is a condition that has not been brought up in the

litigation thus far and is a condition that has not been credited by the medical and scientific

communities. (Doc. 68 at 6).

Moreover, plaintiff's motion to file a second amended complaint should be denied on the

basis that the proposed amendments could not withstand a motion to dismiss and would therefore

be futile. Plaintiff's medical malpractice claims against Drs. Hergenrother, Collins, Stephens,

Brown, and Muschauer are barred by the one-year statute of limitations. Ohio Rev. Code §

2305.113(A). In addition, plaintiff's claims for negligent hiring and retention and negligent

training and supervision are barred by the two-year statute of limitations for negligence claims

contained in Ohio Rev. Code § 2305.10. See Brown y. Holiday Inn Express & Suites, 118

N.E.3d 1021, 1026 (Ohio Ct. App. 2018). As plaintiff alleges that Ms. Lowe was given a

diagnosis of NSF in April 2015 and died in May 2015, the statute of limitations for these claims

expired in May 2016 and May 2017 respectively. Accordingly, plaintiff's motion for leave to

amend the complaint (Doc. 67) should be DENIED.

IV. Issue Concerning Plaintiff’s Pro Se Representation of the Estate

The Court acknowledges the argument presented by interested parties Drs. Hergenrother

and Stephens that plaintiff may be engaged in the unauthorized practice of law by representing

the estate of Constance Lowe pro se and without a licensed attorney. (Doc. 72 at 2-3). Indeed,

the Sixth Circuit has held that “a personal representative may appear pro se on behalf of an estate

only if he or she is the sole beneficiary of the estate and the estate has no creditors.” Estate of

Bessette v. Wilmington Tr., N.A., No. 17-1199, 2017 WL 3747204, at *1 (6th Cir. May 16, 2017)

(citing Bass v. Leatherwood, 788 F.3d 228, 230 (6th Cir. 2015)) (emphasis added). The purpose

of this rule is to protect third parties. Bass, 788 F.3d at 230.

In this case, Ms. White has not yet shown that she is the sole beneficiary of the Estate of

Constance Lowe and that the Estate lacks creditors. If plaintiff is not the sole beneficiary and/or

the Estate has creditors, plaintiff cannot continue to litigate this action as a pro se litigant on

behalf of others’ interests and must proceed through an attorney. Plaintiff is therefore

ORDERED to SHOW CAUSE, in writing, within twenty (20) days demonstrating that she is

the sole beneficiary of the Estate of Constance Lowe and that the Estate lacks creditors. See

Brown vy. Stroud, No. 08-cv-02348, 2014 WL 1308342, at *8 (N.D. Cal. Mar. 31, 2014) (noting,

as background, that the plaintiff was ordered to show cause in writing whether she intended to

appear pro se or through new counsel, and, if she intended to proceed pro se, to demonstrate that

she was the sole beneficiary to the estate and that there were no other beneficiaries or creditors).

V. Conclusion

Based on the foregoing, it is RECOMMENDED that:

1. Plaintiff's motion for leave to amend the complaint (Doc. 67) be DENIED.

It is ORDERED that:

1. Plaintiff's motion for extension of time to file expert witness disclosures (Doc. 65) is

DENIED.

2. Defendant’s motion to strike (Doc. 70) is GRANTED. Accordingly, plaintiff’ s expert

witness disclosures (Doc. 66) are STRICKEN from the docket of this Court.

3. Plaintiff must SHOW CAUSE, in writing, within twenty (20) days demonstrating that

she is the sole beneficiary and there are no other beneficiaries or creditors to the Estate of

Constance Lowe.

Date: /0/ 9 P.tstee XQ

Karen L. Litkovitz

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DONNA WHITE, Case No: 1:17-cv-212

Plaintiff, Dlott, J.

Litkovitz, M.J.

vs.

GE HEALTHCARE, INC., et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report objected

to and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based in whole or in part upon matters occurring on the record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs. A party may respond to another party’s objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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