Sambois v. United States

          ORDER

          H. Russel Holland United States District Judge

         Motion to Strike

         Defendant moves to strike plaintiffs’ third supplemental expert witness disclosure.^[1]This motion is opposed.^[2] Oral argument was requested^[3] but is not deemed necessary.

         Background

         Plaintiffs Niurka and Argenis Sambois bring this Federal Tort Claims Act action in which they allege medical malpractice and other claims arising out of Mrs. Sambois’ tubal ligation which was performed on July 30, 2014 by Dr. Sheridan. Plaintiffs allege that on May 11, 2014, Mrs. Sambois “presented to Bassett [Army Hospital] to undergo delivery of her second child by cesarean section surgery. [She] requested a tubal ligation be performed during the cesarean and the surgeon, Dr. Sheridan agreed to the request.”^[4] Plaintiffs allege however that “Dr. Sheridan failed to perform the tubal ligation as agreed[, ]” thus requiring a separate procedure, during which “Dr. Sheridan nicked, perforated, or otherwise injured [Mrs. Sambois’] urinary bladder and/or tract[.]”^[5]

         The scheduling and planning order in this case provided that plaintiffs’ expert disclosures were due on or before October 19, 2018; defendant’s were due on or before December 7, 2018; and any rebuttal expert reports were due on or before January 12, 2019.^[6]These deadlines were subsequently extended to March 5, 2019; April 23, 2019; and May 29, 2019.^[7]

         On March 5, 2019, plaintiffs disclosed the expert report of Dr. Charles Ascher-Walsh.^[8] In his report, Dr. Ascher-Walsh reviewed Mrs. Sambois’ post-operative care and in this review, he mentioned that she suffered from urinary incontinence and eventually had an InterStim device implanted.^[9] After reviewing Mrs. Sambois’ post-operative care, Dr. Ascher-Walsh set out Mrs. Sambois’ “Claimed Injuries” as follows:

Ms. Sambois continues to suffer from chronic abdominal and pelvic pain with intractable nausea and vomiting. She also has recurrent rectal bleeding. In addition she suffers from persistent insomnia, anxiety and depression. All of these complaints are believed to have originated from the surgical complications of the laparoscopic BTL on July 30, 2014 performed by Dr. Sheridan.^[10]

Dr. Ascher-Walsh then opined that

Dr. Sheridan’s care of Ms. Sambois demonstrates a reckless deviation from the standard of care. Dr. Sheridan should have performed the tubal ligation while performing the cesarean section and therefore avoiding a further need for surgery. When performing the surgery she did not take the appropriate care to avoid injury to the bladder which she documented as prominent only 8 weeks before. She also did not take the appropriate steps to diagnose the bladder defect subsequent to causing the injury.^[11]

         Defendant disclosed its expert report on April 23, 2019; and on May 30, 2019, plaintiffs disclosed Dr. Ascher-Walsh’s rebuttal report, in which he “completely disagree[d] with Dr. Berry’s assessment of the care provided to Ms. Sambois by Dr. Sheridan.”^[12] And, at his June 28, 2019 deposition, Dr. Ascher-Walsh testified that he did not have any opinions other than those in his expert report.^[13]

         On July 16, 2019, plaintiffs disclosed an “Addendum Expert Report” from Dr. Ascher-Walsh. In the Addendum Expert Report, Dr. Ascher-Walsh stated that he was

asked to further discuss the placement of the Interstim device and the reported ovarian cysts. The Interstim was placed because of [Mrs. Sambois’] worsening urinary urgency and frequency after the complicated tubal ligation. The direct injury to the bladder and subsequent repair and the inevitable scarring that resulted would have significantly increased her risks for urinary urgency and frequency. When this occurred after the injury, it is clear that it was the injury that was the most likely cause of her urinary problems. The placement of an Interstim device is an invasive procedure that is typically left to the most severe cases of urinary urgency and frequency. It is likely that Ms. Sambois’ condition would never have progressed to this degree if it were not for the bladder injury.^[14]

         Defendant now moves to strike Dr. ...