# Hill v. Century Arms, Inc. (TV1)

> District Court, E.D. Tennessee · November 9, 2023

URL: https://www.frixlaw.com/law-library/cases/10435623

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** November 9, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10435623

## How later opinions describe it (automated extraction)

- explaining that these factors “are simply useful signposts, not dispositive hurdles that a party must overcome in order to have expert testimony admitted”
- 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)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10435623. Public record. Not legal advice.