Hill v. Century Arms, Inc. (TV1)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

LOUIS EDWARD HILL, )

)

Plaintiff, )

)

v. ) No. 3:21-CV-31-TAV-DCP

)

CENTURY ARMS, INC., and CENTURY )

INTERNATIONAL ARMS, INC., )

)

Defendants. )

MEMORANDUM AND ORDER

This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,

and Standing Order 13-02.

Now before the Court is Defendants’ Motion to Preclude the Records and Opinions of

Plaintiff’s Undisclosed Expert, Dr. William L. Tontz, and Any Testimony and Opinions Relying

on those Records and Opinions (“Motion to Exclude Dr. Tontz”) [Doc. 76] and Defendants’

Motion to Exclude the Testimony of Plaintiff’s Expert Robert P. Tremp and Supporting

Memorandum of Law (“Motion to Exclude Tremp”) [Doc. 82]. These motions are ripe for

adjudication. See E.D. Tenn. L.R. 7.1(a). For the reasons explained below, the Court GRANTS

Defendants’ Motion to Exclude Dr. Tontz [Doc. 76] and GRANTS IN PART AND DENIES IN

PART Defendants’ Motion to Exclude Tremp [Doc. 82].

I. BACKGROUND

On November 28, 2017, Plaintiff purchased a 9mm Canik TP9SF Elite model pistol

(“Pistol”) [Doc. 18 ¶ 34]. According to the allegations in the Amended Complaint, on February

25, 2019, Plaintiff was injured when the Pistol fell while in the holster, struck the ground, and fired

[Id. ¶¶ 1, 35]. He claims that the Pistol “unintentionally discharged due to a safety defect which

rendered [it] unreasonably dangerous and unfit for its intended use” [Id. ¶ 2]. The Amended

Complaint alleges that Defendants “designed, manufactured, imported, marketed, distributed,

and/or sold” the Pistol [Id. ¶ 1].1 According to the allegations in the Amended Complaint, “on

September 1, 2017, Defendants announced a ‘Product Safety Warning and Severe Duty Upgrade

Notice[,]’” which was not a recall but instead a “voluntary upgrade” [Id. ¶ 7 (emphasis omitted)].

The notice applied to Plaintiff’s Pistol [Id. (emphasis omitted)]. The notice acknowledged that the

“dropping of pistols may result in damage to safety features and unintentional discharge” [Id.

(emphasis omitted)]. Based on the above, Plaintiff alleges negligence; strict liability for

manufacturing and design defect; negligence and strict liability for failure to warn; and he includes

allegations relating to vicarious liability [Id. ¶¶ 38–165].

Plaintiff sustained a knee injury from the accident and treated with Konstantinos

Triantafillou, M.D. (“Dr. Triantafillou”), who is a board-certified, orthopedic surgeon [Doc. 76-1

p. 3]. On September 8, 2022, the parties deposed Dr. Triantafillou, wherein he was asked about

Plaintiff’s prognosis [Id. at 13]. Dr. Triantafillou testified:

A. Well, that’s tough. That’s looking into a crystal ball. He had

a big hole in his joint, and I know that that is now filled with

pothole materials, not the same road layer that you had

originally that was paved but a big pothole now. It’s filled

with substandard materials. So I would say it’s difficult, but

the size of this hole in his joint is pretty significant. I don’t

think there’s enough – there are a lot of case reports that do

describe late destruction of the joint from these injuries.

They’re just not that common. My assumption is that he will

develop arthritis or a roughness of the joint with time. It

might not happen—it might not even happen for a decade or

two, but if I had to say, he’s probably more likely than not to

develop arthritis. The question is, is it going to be just on

[an] X-ray or clinically? And I would not be surprised if he

needed, let’s say, a knee replacement prematurely in the

future based on the size of the pothole in this joint surface.

1 Defendants deny that they manufacture pistols and claim that they import and distribute

them [Doc. 33 ¶¶ 16, 23].

[Id.]. In short, he testified that a total knee replacement is “more likely than not” [Id.]. When

Plaintiff’s counsel inquired again about Plaintiff’s need for a knee replacement in the future, Dr.

Triantafillou testified, “I do think so in the future. It’s just that the damage to the joint was too

big. The size of the joint is this big and the hole is this big (indicating). It’s hard not to think that

will cause arthritis in the future that’s painful” [Id.].

Plaintiff retained Robert P. Tremp, Jr., MA, CRC, CLCP (“Tremp”), a life care expert, who

conducted an evaluation “to assess future care needs, rehabilitation planning, the extent to which

conditions impede his ability to live independently, to handle all activities of daily living, and if

applicable, to assess the impact on his vocational development” [Doc. 76-5 p. 3]. In a report

finalized on September 26, 2022 (“Tremp’s First Report”), Tremp opined that Plaintiff’s future

medical needs would cost $76,861.50 and would include MRIs, X-rays, physical therapy,

orthopedic appointments, and a total knee replacement [Id. at 10–17].2 This list of future medical

care, however, states “pending physician recommendation[,]” except the total knee replacement,

which he cited to Dr. Triantafillou’s deposition [Id.]. In rendering his opinions, Tremp reviewed

Plaintiff’s medical records and Dr. Triantafillou’s deposition testimony [Id. at 7–8].

On October 25, 2022, Tremp requested that Dr. Triantafillou complete a questionnaire

regarding Plaintiff’s future medical needs [Doc. 76-2 p. 3]. The questionnaire directs Dr.

Triantafillou to only provide opinions within “a reasonable degree of medical probability/medical

certainty to occur/50.1% chance or greater of occurring” [Id. at 4]. Dr. Triantafillou completed

the report on November 3, 2022, and stated that Plaintiff will need to be seen one time per year for

the rest of his life [Id. at 4, 5]. He opined that Plaintiff does not need medication, pathologic

2 Tremp explains that a “Life Care Plan estimates future costs for the patient” [Doc. 76-2 p.

3].

laboratory studies, therapeutic modalities, assistive devices or therapeutic aids [Id. at 4, 5]. The

questionnaire asks, “Is there a greater than 50% probability [Plaintiff] will require additional

surgical intervention” [Id. at 4]. Dr. Triantafillou checked, “yes” and explains, “if/when he

develops post traumatic arthritis” [Id. at 4]. He opines that injections are recommended on an as

needed basis [Id. at 5]. The questionaries asks whether Dr. Triantafillou recommends joint

replacement surgery, and he responds, “not now” and “only/if [he] develops arthritis” [Id.]. Dr.

Triantafillou also recommended a referral to a joint surgeon if Plaintiff requires a total knee

arthroplasty [Id.].3

At the request of Tremp, Dr. Triantafillou completed a second questionnaire on November

17, 2022 [Doc. 76-3]. The second questionnaire is the same as the first questionnaire, except that

it states, “Please do not indicate treatments that are ‘possible’, ‘prn’ or ‘if’ as they cannot be

quantified” [Id. at 4 (emphasis omitted)]. On the first question, regarding the frequency of which

Plaintiff should be seen, Dr. Triantafillou states, “PRN[,] if experiencing pain” [Id.]. On whether

there is a greater than 50% probability that Plaintiff will require additional surgical intervention,

Dr. Triantafillou checked “yes” and explained the procedure and timing thereof as, “Unknown

following for evaluation of post traumatic arthritis and future need for [total knee arthroplasty]”

[Id.]. With respect to whether Plaintiff needs therapeutic modalities, Dr. Triantafillou opined,

“probably[,] PRN” [Id.]. He stated that Plaintiff will “possibly” need joint replacement surgery,

but it was “unknown at this time” [Id. at 5].4 In addition, he recommended injections, periodic

diagnostics, assistive devices and therapeutic aids as “PRN for aggravating symptoms” [Id.].

3 The Court construes “TKA” to mean a “total knee arthroplasty.”

4 Dr. Triantafillou included another comment regarding therapeutic medicine, but it is not

legible [Doc. 76-3 p. 4].

On February 9, 2023, Plaintiff’s expert disclosure deadline expired [Doc. 47].5 According

to Defendants, Plaintiff disclosed the following witnesses: Charles Powell, Michael J. Whitley,

Rick Harper, and Tremp [Doc. 76 p. 3]. Subsequently, on September 15, 2023, Defendants

deposed Tremp [Doc. 76-8 p. 2]. Defendants state that on the day of the deposition, Plaintiff

produced Tremp’s expert file, which included a one-page telemedicine independent medical

examination (“IME”) report prepared by William Tontz, M.D. (“Dr. Tontz”), dated March 11,

2023 [Doc. 76-9 p. 2].6 Dr. Tontz concludes:

The patient should be afforded the ability to see an orthopedic

surgeon on an annual basis for the rest of his life secondary to

ongoing left knee pain. In addition, an MRI and CT scan should be

afforded on an annual basis for the rest of his life to follow his knee

complaints by MRI and radiographically.

Viscosupplementation should be afforded the patient on a biannual

basis for the remainder of his life. With reasonable medical

certainty, the patient will require a total knee arthroplasty and

removal of hardware for ongoing complaints of pain and

posttraumatic arthritis. All opinions are to a reasonable degree of

medical certainty.

[Id.]. During his deposition, when Tremp was asked whether there seemed to be an inconsistency

between the recommendations of Dr. Triantafillou and Dr. Tontz, Tremp testified that “Dr.

Triantafillou didn’t have much feedback in terms of recommendations based on the input he gave”

[Doc. 76-4 p. 6].7 According to Defendants, in addition to disclosing the IME with Dr. Tontz,

5 On February 1, 2023, the Court entered a notice relating to the Scheduling Order that

Plaintiff’s expert disclosures were due 180 days before the trial date of August 8, 2023 (i.e.,

February 9, 2023).

6 While dated March 11, 2023, Dr. Tontz electronically signed it on July 24, 2023 [Doc. 76-

9 p. 3]

7 Defendants submitted an “united[,] uncertified dirty transcript” of Tremp’s deposition

[Doc. 76-4]. The parties do not appear to dispute the contents thereof.

Tremp also disclosed his Second Life Care Plan (“Tremp’s Second Report”) on the date of his

deposition [Doc. 76 p. 8]. Dated July 26, 2023, Tremp’s Second Report states that pursuant to Dr.

Tontz’s recommendations, Plaintiff will need orthopedic surgery appointments,

viscosupplementation injunctions for the knee, total knee replacement with hardware removal,

MRI of the left knee, and CT scan of the knee [Doc. 76-9 pp. 10–12]. Tremp testified that he is

withdrawing the September 27, 2022 plan because “[t]he 2023 plan completely supplants the

preliminary life care plan of 9/22” [Doc. 76-4 p. 12]. Tremp stated that the new information from

the IME with Dr. Tontz resulted in his supplementation [Id.].8 Subsequently, the following

exchange occurred:

Q. Now, if for whatever reason the Court says, hey, you know

what? This Dr. Tontz report is—is not going to be admissible

in this case, then will you be back to your September 27,

2022, evaluation?

A. Well, in the eyes of the Court, yes, but just, you know, in --

in clinical terms though, I still have -- because the Court

doesn’t recognize the report, you know, the report of mine

as a life care planner still stands, right? But obviously, if the

Court doesn’t admit it, then that would impact the life care

plan as well.

[Id. at 13].

II. PROCEDURAL HISTORY

Based on the above, Defendants seek to exclude Plaintiff’s undisclosed witness, Dr. Tontz,

and they request that the Court preclude any evidence or testimony that relies on his opinions [Doc.

76]. Arguing that Plaintiff failed to comply with Rule 26(a)(2) of the Federal Rules of Civil

Procedure, Defendants state that the Court must exclude Dr. Tontz’s opinions pursuant to Rule 37.

8 With respect to Tremp’s Second Report, Defendants state that “[t]he support for these

entries roughly total[] $122,191.50 to $140,430.50” [Doc. 76 p. 8 (emphasis omitted)].

And here, Defendants contend, Plaintiff cannot show that his non-compliance with Rule 26(a)(2)

was harmless or substantially justified. In arguing that Dr. Tontz’s opinions should be excluded,

Defendants also assert that his expert report is deficient and without a proper foundation.

Plaintiff responds that he “does not intend to call Dr. William Tontz as a witness at trial[,]”

and therefore, was not required to disclose him as an expert witness. [Doc. 86 p. 1]. In addition,

relying on Rule 35, Plaintiff argues that a Court order is not needed to have himself examined by

Dr. Tontz or to speak with him “for whatever reason” [Id.]. Instead, Plaintiff contends that

Defendants were supposed to request any IMEs during discovery, and they failed to do so. Plaintiff

states that “[a]ny argument in the motion to strike Dr. Tontz’s opinion referring to whether Robert

Tremp[,] the Plaintiff’s life care plan expert[,] should be allowed to use Dr. Tontz’s information

in Tremp’s life care plan for [Plaintiff] has been superseded by the motion to preclude Robert

Tremp’s testimony under Daubert filed on September 29, 2023, [Doc. 82], which raises the same

arguments regarding Tremp’s testimony as set out in the current motion” [Doc. 86 p. 2]. Plaintiff

states that he will address Defendants’ arguments against Tremp in his response to that specific

motion. Plaintiff concludes that Dr. Tontz is not an undisclosed expert witness [Id.].

Defendants reply that “Dr. Tontz is a testifying witness shielded from cross examination

for all practical purposes and his opinions are inadmissible hearsay” [Doc. 91 p. 2 (emphasis

omitted)]. Pointing to the Advisory Committee’s notes on Rule 35, Defendants submit Plaintiff’s

argument that they were required to request the IME report during discovery is incorrect as

disclosure by Plaintiff was otherwise required. But regardless, Defendants argue, they sought

information and documentation evidencing or relating to medical treatment Plaintiff received

because of the injuries sustained in the incident during discovery to which this IME report would

be responsive. Further, Defendants argue Plaintiff has waived any argument that the untimely

disclosure of Dr. Tontz’s IME was harmless or substantially justified. In addition, Defendants

state that Plaintiff failed to respond to their arguments that Dr. Tontz’s report is unreliable, thereby

waiving that argument as well.

Defendants also move to exclude Tremp from testifying in this matter, relying on Federal

Rules of Evidence 401, 402, 403, 407, 702, and Daubert v. Merrell Dow Pharm. Inc., 509 U.S.

579 (1993) [Doc. 82]. Defendants assert that “[b]ecause Tremp’s only support for his present

opinions is Dr. Tontz’s sham report, and given his unreliable-first methods, his testimony should

be excluded” [Id. at 2]. Defendants argue that Tremp’s First Report is flawed, and therefore, the

Court should preclude any testimony from him.

Plaintiff responds that Tremp is permitted to rely on other sources of information, such as

Dr. Tontz’s IME, and those sources do not have to be admissible [Doc. 93]. Plaintiff contends that

case law supports his argument. But even if the Court strikes Dr. Tontz’s report, Plaintiff argues

that there is a sufficient basis for Tremp’s life care plan, which includes Dr. Triantafillou’s

opinions.

Defendants reply that Plaintiff does not defend the reliability of Dr. Tontz’s opinions , and

therefore, has waived this argument [Doc. 97]. Given that Dr. Tontz’s opinions are unreliable,

Defendants assert that Tremp cannot rely on them. With respect to Tremp’s First Report,

Defendants state that Dr. Triantafillou did not opine that Plaintiff would need the medical treatment

as Plaintiff has alleged.

III. STANDARD OF REVIEW

In summary, Defendants seek to exclude Dr. Tontz’s opinions as a sanction pursuant to

Rule 37(c). In addition, they argue that Dr. Tontz’s opinions are unreliable. Defendants also seek

to exclude any evidence that relied on Dr. Tontz’s opinions (i.e., Tremp’s Second Report).

Defendants further request that the Court exclude all Tremp’s opinions arguing that there is no

factual basis to support them.

A. Excluding Evidence as a Sanction

Rule 26(a)(2) of the Federal Rules of Civil Procedure governs expert disclosures, which

provides that “a party must disclose to the other parties the identity of any witness it may use at

trial to present evidence under Federal Rules of Evidence 702, 703, or 705.” Fed. R. Civ. P.

26(a)(2). “[I]f the witness is one retained or specially employed to provide expert testimony in the

case[,]” then the expert “disclosure must be accompanied by a written report—prepared and signed

by the witness[.]” Fed. R. Civ. P. 26(a)(2)(B). If the witness is not required to provide a written

report, the offering party must submit a disclosure containing “(i) the subject matter on which the

witness is expected to present evidence under Federal Rules of Evidence 702, 703, or 705; and (ii)

a summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P.

26(a)(2)(C).

“If 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); see also Roberts ex rel. Johnson v. Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003)

(noting that this sanction “is automatic and mandatory unless the sanctioned party can show that

its violation of Rule 26(a) was either justified or harmless[.]” (citation omitted)). The burden to

show substantial justification or harmlessness is on the potentially sanctioned party. Roberts, 325

F.3d at 782.

B. Daubert Standard

“Federal Rule of Evidence 702 obligates judges to ensure that any scientific testimony or

evidence admitted is relevant and reliable.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,

147 (1999) (quoting Daubert, 509 U.S. at 589). Rule 702 provides:

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.

Fed. R. Evid. 702.

The Supreme Court of the United States stated in Daubert that a district court, when

evaluating evidence proffered under Rule 702, must act as a gatekeeper, ensuring “that any and all

scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. at 589. This

standard “attempts to strike a balance between a liberal admissibility standard for relevant evidence

on the one hand and the need to exclude misleading ‘junk science’ on the other.” Best v. Lowe’s

Home Ctrs., Inc., 563 F.3d 171, 176–77 (6th Cir. 2009).

The factors relevant in evaluating the reliability of the testimony include: “whether a

method is testable, whether it has been subjected to peer review, the rate of error associated with

the methodology, and whether the method is generally accepted within the scientific community.”

Coffey v. Dowley Mfg., Inc., 187 F. Supp. 2d 958, 970–71 (M.D. Tenn. 2002) (citing Daubert,

509 U.S. at 593–94). The inquiry is “a flexible one,” and these factors do not constitute a definitive

checklist or test. Kumho Tire Co., 526 U.S. at 138–39 (citing Daubert, 509 U.S. at 593); see also

Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d Cir. 1999) (explaining that these factors “are

simply useful signposts, not dispositive hurdles that a party must overcome in order to have expert

testimony admitted”).

“Although Daubert centered around the admissibility of scientific expert opinions, the trial

court’s gatekeeping function applies to all expert testimony, including that based upon specialized

or technical, as opposed to scientific, knowledge.” Rose v. Sevier Cnty., No. 3:08-CV-25, 2012

WL 6140991, at *4 (E.D. Tenn. Dec. 11, 2012) (citing Kumho Tire Co., 526 U.S. at 138–39). “[A]

party must show, by a ‘preponderance of proof,’ that the witness will testify in a manner that will

ultimately assist the trier of fact in understanding and resolving the factual issues involved in the

case.” Coffey, 187 F. Supp. 2d at 70–71 (quoting Daubert, 509 U.S. at 593–94). The party offering

the expert has the burden of proving admissibility. Daubert, 509 U.S. at 592 n.10.

The Court will not “exclude expert testimony merely because the factual bases for an

expert’s opinion are weak.” Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 729 (6th Cir.

2012) (quotation marks and citations omitted). Exclusion is the exception, not the rule, and “the

gatekeeping function established by Daubert was never ‘intended to serve as a replacement for the

adversary system.’” Daniels v. Erie Ins. Grp., 291 F. Supp. 3d 835, 840 (M.D. Tenn. Dec. 4, 2017)

(quoting Rose v. Matrixx Initiatives, Inc., No. 07–2404–JPM/tmp, 2009 WL 902311, at *7

(W.D. Tenn. Mar. 31, 2009)) (other quotations omitted). Rather, “[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof are the traditional

and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.

Rule 702 does not “require anything approaching absolute certainty.” Daniels, 291 F. Supp. 3d

at 840 (quoting Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671–72 (6th Cir. 2010)).

District courts generally have “considerable leeway in deciding in a particular case how to

go about determining whether particular expert testimony is reliable.” Id. at 375 (quoting Kumho

Tire, 526 U.S. at 152). Decisions by the district court are thus reviewed for an abuse of discretion.

See id. (citing Nelson v. Tenn. Gas Pipeline Co., 234 F.3d 244, 248 (6th Cir. 2001). “This

deferential standard makes sense because Daubert establishes a ‘flexible’ test that considers many

indicia of reliability[,]” and relevance will depend “on the particular science and the particular

scientist before the court.” Id. (citing Kumho Tire, 526 U.S. at 150).

IV. ANALYSIS

The Court has considered the parties’ filings and the evidence submitted in support thereof.

The Court finds that Plaintiff was under an obligation to disclose Dr. Tontz by the expert disclosure

deadline and that his failure to do so is not substantially justified or harmless. The Court therefore

finds that Plaintiff cannot rely on Dr. Tontz’s opinions at trial. In light of this finding, the Court

finds that Plaintiff is precluded from offering Tremp’s opinions contained in the Second Report at

trial. The Court, however, will allow Tremp to testify as to the matters contained in his First Report

to the extent that there is a medical basis to support them as further explained below.9

A. Defendants’ Request to Exclude Dr. Tontz’s Opinions and the Evidence that

Relies on Them

Defendants seek to exclude Dr. Tontz’s opinion because Plaintiff failed to disclose him as

an expert witness by the February 9, 2023 deadline to do so. Plaintiff responds that he was not

required to disclose Dr. Tontz because he does not intend to call him at trial. In addition, relying

on Rule 35, Plaintiff asserts that it “does not require a court order for a party to have [himself]

examined by a physician” and that “no court order was required to allow [him] to speak to Dr.

Tontz for whatever reason” [Doc. 86 p. 1 (emphasis omitted)]. Plaintiff states that Defendants

were required to request Dr. Tontz’s IME, and they failed to do so.

The Court finds Plaintiff’s arguments are contrary to the Rules. Rule 26(b)(3)(D) shields

consulting experts from discovery, except as provided in Rule 35(b) or on a showing of exceptional

9 Defendants request a Daubert hearing with respect to their request to preclude Tremp from

testifying, but they do not explain why a Daubert hearing is necessary. “A hearing is required

only if the record is inadequate to decide the motion.” Alder v. Elk Glenn, LLC, 986 F. Supp. 2d

851 (E.D. Ky. Dec. 6, 2013) (citation omitted). Defendants submitted Tremp’s deposition

testimony and Tremp’s First and Second Reports.

circumstances. Fed. R. Civ. P. 26(b)(4)(D). But Dr. Tontz is more than a consulting expert. Rule

26(b)(4) “distinguishes between experts whose opinions will be presented at trial, referred to as

‘testifying experts,’ and experts employed solely for trial preparation, referred to as ‘non-testifying

experts’ or ‘consulting experts.’” United States ex rel. Scott v. Humana Inc., No.

318CV00061GNSCHL, 2021 WL 3909906, at *3 (W.D. Ky. Aug. 31, 2021) (citation omitted).

Although Plaintiff states that he is not calling Dr. Tontz at trial, he is presenting Dr. Tontz’s

opinions through Tremp. The Court agrees with Plaintiff that he is not required to seek a Court

order allowing him to be seen by or speak with Dr. Tontz. But the Rules do require, to the extent

Plaintiff intends to rely on Dr. Tontz’s opinions at trial, to timely disclose them. See Fed. R. Civ.

P. 26(a)(2). The Court finds that Plaintiff was under an obligation to disclose Dr. Tontz by the

expert disclosure deadline.

Plaintiff relies on Rule 35, stating “by its plain language,” it “requires the party asking for

the IME . . . to request ‘like reports of all earlier or later examinations of the same condition’”

[Doc. 86 p. 2 (quoting Fed. R. Civ. P. 35(b)(3))]. And here, Defendants sought and received an

IME with Dr. Koenig [See Docs. 48, 50]. Plaintiff therefore argues that Defendants were required

to request the later IME by Dr. Tontz and that they failed to do so. Rule 35 provides as follows:

(3) Request by the Moving Party. After delivering the reports, the

party who moved for the examination may request--and is entitled

to receive--from the party against whom the examination order was

issued like reports of all earlier or later examinations of the same

condition. But those reports need not be delivered by the party with

custody or control of the person examined if the party shows that it

could not obtain them.

Fed. R. Civ. P. 35(b)(3). The Advisory Committee note explains as follows:

[Subdivision (b)(3)] also makes clear that reports of examining

physicians are discoverable not only under Rule 35(b), but under

other rules as well. To be sure, if the report is privileged, then

discovery is not permissible under any rule other than Rule 35(b)

and it is permissible under Rule 35(b) only if the party requests a

copy of the report of examination made by the other party’s doctor.

Sher v. De Haven, 199 F.2d 777 (D.C. Cir. 1952), cert. denied 345

U.S. 936 (1953). But if the report is unprivileged and is subject to

discovery under the provisions of rules other than Rule 35(b)--such

as Rules 34 or 26(b)(3) or (4)--discovery should not depend upon

whether the person examined demands a copy of the report.

Although a few cases have suggested the contrary, e.g., Galloway v.

National Dairy Products Corp., 24 F.R.D. 362 (E.D.Pa.1959), the

better considered district court decisions hold that Rule 35(b) is not

preemptive. E.g., Leszynski v. Russ, 29 F.R.D. 10, 12 (D. Md.1961)

and cases cited. The question was recently given full consideration

in Buffington v. Wood, 351 F.2d 292 (3d Cir. 1965), holding that

Rule 35(b) is not preemptive.

Fed. R. Civ. P. 35(b)(3) advisory committee’s note to 1987 amendment. In other words, Plaintiff

cannot rely on Rule 35 as a back door to utilize Dr. Tontz’s untimely disclosure. Buffington, 351

F.2d at 297 (“The directive of the Federal Rules to eliminate surprise from litigation demands that

we construe them reasonably to facilitate this goal and maximize pre-trial exchange of

materials.”).10 But even if this were permissible, Defendants submit, and Plaintiff does not

sufficiently rebut, that they requested such information during discovery, and Plaintiff never

10 In support of his position, Plaintiff relies on Waggoner v. Ohio Cent. R.R., 242 F.R.D. 413,

414 (S.D. Ohio 2007), wherein the court held “that Rule 35 examinations, and the issuance of

reports following those examinations, proceed independently of Rule 26(a)(2).” The court

reasoned, “At the time a party requests a Rule 35 examination, it is not necessarily the case that

the examining physician will be called to testify at trial. Often, the results of the examination

simply confirm what the injured party’s doctors have reported, and the Rule 35 examiner therefore

services only as a consultant to the defending party and not as a trial witness.” Id. The court

concluded “that the deadline which it set in this case for the disclosure of expert reports under Rule

26(a)(2) does not apply to the issuance of a Rule 35.” Id. The Court finds Waggoner inapposite.

As Plaintiff acknowledges, he was not required to seek an order under Rule 35 to be examined by

or speak with Dr. Tontz and did not do so. But even if the Court granted an IME with Dr. Tontz,

as one court explained, “[C]ourts following the Waggoner decision have noted that its

‘independent operation’ rationale is limited to Rule 35 examiner who has not been designated as a

testifying witness.” Larson v. Davidson Trucking, Inc., No. 2:20-CV-250-PPS-JPK, 2023 WL

4362484, at *6 (N.D. Ind. July 5, 2023). Thus, even if Plaintiff sought an order under Rule 35, he

would still need to disclose Dr. Tontz. While Plaintiff claims that he has not designated Dr. Tontz’s

as a trial witness, he cannot genuinely dispute that he is attempting to present Dr. Tontz’s opinions

to the jury by way of Tremp.

supplemented his responses as required under Rule 26(e) to identify Dr. Tontz or disclose his IME

as requested [See Doc. 91 p. 6 (Interrogatory No. 4 and Request for Production Nos. 34 and 35)].

The Court finds Plaintiff’s argument not well taken.

In light of the Court’s finding that Plaintiff was required to disclose Dr. Tontz on February

9, 2023, and failed to do so, the Court turns to Rule 37. As mentioned above, Rule 37(c) requires

exclusion unless the harm is substantially justified or harmless. Plaintiff has not argued that his

failure to timely disclose Dr. Tontz is harmless or substantially justified, which alone is grounds

for granting Defendants’ motion. Eiben v. Gorilla Ladder Co., No. 11-CV-10298, 2013 WL

1721677, at *4 (E.D. Mich. Apr. 22, 2013) (“Where a plaintiff does not make any argument of

harmlessness or justification, a district court does not abuse its discretion in excluding the expert’s

report.” (citation omitted)); Atia v. Delta Airlines, Inc., No. CV 08-150-DLB, 2010 WL 11646916,

at *2 (E.D. Ky. July 2, 2010) (explaining that the plaintiff failed to meet the discovery deadline

and did “not attempt[] to explain why her failure to comply was substantially justified or

harmless[,]” and therefore “exclusion of any previously undisclosed evidence is mandatory”

(citation omitted)). In any event, the Court has considered the circumstances of this matter. The

Sixth Circuit has identified five factors to consider when assessing whether a party’s omitted or

late disclosure is “substantially justified” or “harmless” as follows: “‘(1) the surprise to the party

against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3)

the extent to which allowing the evidence would disrupt the trial; (4) the importance of the

evidence; and (5) the nondisclosing party’s explanation for its failure to disclose the evidence.’”

Howe v. City of Akron, 801 F.3d 718, 747–48 (6th Cir. 2015) (quoting Russell v. Abs. Collection

Servs., Inc., 763 F.3d 385, 396–97 (4th Cir. 2014)).

As to the first Howe factor—Defendants’ surprise—the Court finds it weighs in favor of

excluding Dr. Tontz’s opinions. To be sure, in an email dated August 24, 2023, Plaintiff’s

counsel’s paralegal wrote to defense counsel, “Through error, I included Dr. William Tontz as one

of Plaintiff’s experts to be deposed” [Doc. 86-1 p. 3]. A day later, on August 25, 2023, Plaintiff’s

counsel confirmed that “Dr. Tontz will be not called as a witness” [Id. at 2]. 11 Plaintiff saw Dr.

Tontz on March 11, 2023, but Plaintiff did not disclose him until Tremp’s deposition on September

15, 2023. Exacerbating Defendants’ surprise is the fact that Tremp relied on Dr. Tontz’s opinions

to issue a new report, which was also disclosed on the day of Tremp’s deposition, despite it being

finalized in July 2023. Defendants were surprised by the late disclosure.

With respect to Defendants’ ability to cure the surprise, the Court finds this factor weighs

in favor of excluding Dr. Tontz. Plaintiff did not disclose Dr. Tontz’s IME until September 15,

2023, approximately seven months after the expert disclosure deadline.12 While the deadline for

discovery does not expire until November 10, 2023, [see Doc. 47], this is not sufficient time for

Defendants to take discovery from Dr. Tontz and obtain any rebuttal to Dr. Tontz’s opinions.

With respect to the third Howe factor—disruption to the trial date—the Court finds this

factor weighs in favor of exclusion. As Defendants note, Plaintiff’s expert disclosures were due

11 Notably, this was not the first reference to Dr. Tontz. On February 13, 2023, the Court

granted Defendants’ motion to compel an IME with Dr. Thomas M. Koenig but ordered the parties

to meet and confer regarding the “time, manner, conditions, and scope of the IME” [Doc. 76]. On

February 14, 2023, defense counsel wrote to Chambers that the parties had agreed to the time,

manner, conditions, and scope of the IME with Dr. Koenig but that Plaintiff wanted to add another

IME with Dr. Tontz [Doc. 76-6]. Defendants stated that they did not object to a second IME, but

they were concerned that this request was made after Plaintiff’s expert disclosure deadline and that

Plaintiff needed to seek relief with respect to the deadlines [Id.]. The Court responded, “Any

additional requests not related to the IME with Dr. Koenig need to be made by separate motion”

[Doc. 76-7 p. 2]. Plaintiff did not file a motion.

12 It also appears Dr. Tontz is subject to the requirements of Rule 26(a)(2)(B) given that there

is no evidence that he was or is treating Plaintiff. And here, Dr. Tontz’s IME does not comply

with the requirements listed in Rule 26(a)(2)(B). This also supports Defendants’ inability to cure

the surprise.

on February 9, 2023, and Plaintiff was approximately seven months late in disclosing Dr. Tontz.

Trial is set for January 9, 2024, and adding another expert would affect this setting.

The fourth Howe factor—the importance of the evidence—weighs slightly against

exclusion. Defendants argue that “Dr. Tontz is not a treating physician” and that “[h]e only

communicated with Plaintiff once” [Doc. 76 p. 12]. Defendants characterize Dr. Tontz’s report as

“deficient . . . without proper foundation” [Id.]. Although Plaintiff did not sufficiently respond to

these arguments, the Court notes that Tremp relies on Dr. Tontz’s medical opinion to provide an

opinion on Plaintiff’s future medical needs.

With respect to the fifth Howe factor, the reason for the late disclosure, it weighs in favor

of exclusion. Plaintiff does not explain why he did not provide Defendants with Dr. Tontz’s IME

until September 15, 2023—the day of Tremp’s deposition. Instead, Plaintiff argues that he was

not required to disclose Dr. Tontz. For the reasons explained above, the Court finds Plaintiff’s

argument not well taken.13

Based on the analysis above, the Court finds that Dr. Tontz’s opinions should be excluded

in this matter. Atia, 2010 WL 11646916, at *2 (“‘The test is very simple: the sanction is mandatory

unless there is a reasonable explanation of why Rule 26 was not complied with or the mistake was

harmless.’” (quoting Vance ex rel. Hammons v. United States, 182 F.3d 920 (6th Cir. 1999)). In

13 As the Sixth Circuit Court of Appeals has noted, “The advisory committee’s note to Rule

37(c) ‘strongly suggests that “harmless” involves an honest mistake on the party of a party coupled

with sufficient knowledge on the part of the other party.’” Sommer v. Davis, 317 F.3d 686, 692

(6th Cir. 2003) (quoting Vance v. United States, No. 98–5488, 1999 WL 455435, at *5 (6th Cir.

June 25, 1999) (unpublished table decision)); see also Fed. R. Civ. P. 37(c)(1) advisory

committee’s note (1993) (giving as an example of a harmless violation the “inadvertent omission

from a Rule 26(a)(1)(A) disclosure of the name of a potential witness known to all parties”). But

even if Plaintiff could establish that the untimely disclosure was an honest mistake, Defendants

did not have sufficient knowledge that Plaintiff intended to present Dr. Tontz’s opinions at trial.

In fact, on August 25, 2023, Plaintiff’s counsel stated that Dr. Tontz would not be called as a

witness [Doc. 86-1 p. 2].

light of this finding, the Court does not find it necessary to address Defendants’ arguments that

Dr. Tontz’s opinions are unreliable.

Defendants also seek to exclude all evidence that relies on Dr. Tontz’s opinions, i.e.

Tremp’s Second Report. Plaintiff responds that pursuant to Rule 703, Tremp “may base an opinion

on facts or data in the case that the expert has been made aware of or personally observed. If

experts in the particular field would reasonably rely on those kinds of facts or data in forming an

opinion on the subject, they need not be admissible for the opinion to be admitted” [Doc. 93 p. 8

(quoting Rule 703)]. Plaintiff includes an affidavit from Tremp, explaining his methodology and

that in his practice, “it is customary and reasonable among life care planners to consult with

medical experts of a similar specialty to that of a treating physician to obtain their input on the

types and frequency of medical treatment a subject will require in the future” [Doc. 93-1 p. 2].

But “[t]his argument misses the mark. The issue before this Court is not whether an expert may

rely upon the work of others in formulating his or her opinions. The issue is whether, after the

deadlines to disclose experts [have] passed, commissioning an undisclosed expert to provide an

opinion based upon previously available and existing evidence is properly considered an untimely

expert report from an undisclosed expert.” In re E. I. du Pont de Nemours & Co. C-8 Pers. Inj.

Litig., No. 2:17-CV-998, 2020 WL 8920991, at *4, *10 (S.D. Ohio Jan. 15, 2020) (striking expert

report as an untimely report from an undisclosed expert). And here, Dr. Tontz provided an opinion

on Plaintiff’s future medical needs, which Tremp utilized to issue his Second Report. Given that

Dr. Tontz’s opinions are not admissible, Tremp has no basis to support his opinions in his Second

Report.14

14 Plaintiff does not argue that Tremp’s Second Report is a supplementation under Rule 26(e).

But even if Tremp’s Second Report is a proper supplementation, such a finding does not result in

Plaintiff using Rule 26(e) as a back door to disclose Dr. Tontz’s untimely opinion. See generally

Gilbane Bldg. Co. v. Downers Grove Community High School District No. 99, 2005 WL 838679,

B. Defendants’ Request to Preclude Tremp’s Testimony

Citing to Dr. Triantafillou’s deposition testimony, Plaintiff asserts that “even if Dr. Tontz’s

report were stricken, there is a sufficient basis to support the life care plan’s findings regarding the

need for future surgery, and that portion of the life care plan should remain in place” [Doc. 93 p.

6]. In addition, Plaintiff states that there is also medical support for future monitoring of his

condition. For instance, Plaintiff states that Dr. Triantafillou testified that Plaintiff would more

likely than not develop post-traumatic arthritis, but Dr. Triantafillou simply differs in how he

monitors the prognosis. Plaintiff states, “Where Dr. Triantafillou’s approach differs from Dr.

Tontz’s is that Dr. Triantafillou takes a more ‘hands-off’ approach to monitoring” [Id. at 7].

Plaintiff relies on Dr. Triantafillou’s testimony that he releases patients but tells them to come back

if they have pain. “[O]n the other hand,” however, Plaintiff states that Dr. Tontz “recommend[s]

yearly monitoring” [Id.].

Defendants respond that Dr. Triantafillou did not indicate that Plaintiff would need knee

replacement surgery. Defendants urge the Court to disregard Plaintiff’s arguments regarding

future monitoring, stating that “Dr. Triantafillou was able to give a reason why he doesn’t

recommend expensive ongoing monitoring: because it doesn’t change treatment and the patient

should be able to ‘live life’” [Doc. 97 p. 4]. Defendants state that “Plaintiff is unable to explain

[Dr.] Tontz’s reasoning for suggesting ongoing monitoring and treatment[]” [Id.].

For the reasons explained above, Plaintiff is not allowed to present or rely on Dr. Tontz’s

opinions, even his opinions about future monitoring. But there is evidence in the record to support

limited future monitoring, such as an X-ray, and a total knee replacement. Dr. Triantafillou

at *9 (N.D. Ill. 2005) (“[T]he concept of a supplemental report suggests that the supplemental

opinions will be the opinions of the expert who prepared the original report, not the opinions of a

different expert.”)

explained that unlike the bone, Plaintiff’s “joint surface will never heal” [Doc. 76-1 p. 12]. He

further testified:

Q. Okay. And so if you were to offer an opinion about his

progress from his recovery or prognosis, you believe you

would need to physically evaluate him or at least ask him

how he was doing in the last several years?

A. No. Once you’ve reached what I would consider maximum

medical improvement for that acute phase, the issues with

posttraumatic arthritis can develop over decades. It could be

2 years. It could be—and we’re extrapolating data from

other joint surfaces, but it could be in 10 years, 20 years. At

this point, what I tell patients typically is “Lead your life,

work. Don’t let this hold you back, but if you start

experiencing pain, we’ll re-X-ray you” because I don’t find

value in serial X-rays over the course of a lifetime if it’s not

causing someone discomfort. It doesn’t change

management. I’d rather release someone and then have then

come back when they’re having pain because I’m always

available for that patient.

[Id. at 20]. Later, during his deposition, counsel asked how Dr. Triantafillou would medically

assess whether Plaintiff is a candidate for a knee replacement, and Dr. Triantafillou explained:

A. What I would have to see is that he has narrowing of his

joint; thickening of the bone between the joints; bone spurs;

which are called osteophytes, and correlating that with

generalized knee pain because arthritis can be generalized.

It can either be in the front, the side. It can be throughout

the knee, the back of the knee that responds or doesn’t

respond to nonsurgical means. So the process would be anti-

inflammatories, if he’s describing knee pain with X-ray

evidence of arthritis, steroid injection. If that doesn’t work,

physical therapy, and after a process of failing nonoperative

means, then you would progress to knee replacement as a

last resort.

[Id. at 21]. Dr. Triantafillou agreed that he would need radiographic images and would go through

nonsurgical options prior to a knee replacement [Id.]. He opined that he “cannot say with

certainty” Plaintiff will need a total knee replacement but noted “if [he] had to bet,” he would bet

that Plaintiff will “have problems in the future” [Id.]. Earlier in his deposition, he testified that

Plaintiff would likely develop arthritis and “more likely than not” need a knee replacement [/d. at

13].

Defendants argue that Dr. Triantafillou testified that he was uncertain whether Plaintiff

would need a total knee replacement, but regardless, if he suggested that it was certain in his

deposition, Defendants contend that Dr. Triantafillou “disavowed that certainty with his

subsequent reports” [Doc. 82 p. 5 n.2]. But in reviewing the two questionnaires, Dr. Triantafillou

checked “‘yes” both times when asked if there was a greater than 50% probability that Plaintiff will

require additional surgical intervention [Doc. 76-2 p. 4; Doc. 76-3 p. 4].° To the extent that Tremp

relies on Dr. Triantafillou’s opinions for his life care plan, the Court finds such testimony

admissible, and the weight to be afforded to such testimony is for the jury to consider.

V. CONCLUSION

For the reasons explained above, the Court GRANTS Defendants’ Motion to Preclude the

Records and Opinions of Plaintiff's Undisclosed Expert, Dr. William L. Tontz, and Any Testimony

and Opinions Relying on those Records and Opinions [Doc. 76] and GRANTS IN PART AND

DENIES IN PART Defendants’ Motion to Exclude the Testimony of Plaintiff's Expert Robert P.

Tremp and Supporting Memorandum of Law [Doc. 82].

IT IS SO ORDERED.

ENTER:

□□ Fy

Ns / ieAa: ©. Tol LA

Debra C. Poplin hed

United States Magistrate Judge

1S The Sixth Circuit has stated that a physician is not required to testify “to a reasonable

degree of medical certainty,” and including that phrase “does not make a causation opinion

admissible.” Johnson v. Memphis Light Gas & Water Div., 695 F. App’x 131, 136-37 (6th Cir.

2017). Instead, most courts “require an expert opinion express a probability, which is more than

a mere possibility,” and “‘probability’ means more likely than not.” Jd. at 137 (other citation

omitted).

21