TRCP 16 Provides for Scheduling Orders Not Scheduling Suggestions

A recent Court of Appeals case serves as a great reminder of the importance of disclosing the correct experts in a timely fashion in a Health Care Liability Action. In Mikheil v. Nashville General Hospital, No. M2014-02301-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2016), plaintiffs filed an HCLA case against several parties related to the alleged failure to timely diagnose and treat cervical stenosis. Included as defendants were an orthopedic surgeon from Nashville General Hospital, a nurse practitioner, the hospital itself based upon a claim of vicarious liability through the orthopedic surgeon, and a neurologist.

To prove an HCLA claim, a plaintiff must present expert testimony regarding the “standard of care, a failure to act in accordance with the standard of care, and proximate cause.” Throughout the pretrial litigation, plaintiffs had multiple problems with their expert disclosures. First, plaintiffs failed to file their Rule 26 expert witness disclosure by the date set out in the agreed scheduling order, and instead filed a motion requesting an additional 120 days the day after the initial deadline. When the disclosure was eventually filed, plaintiff listed four potential expert witnesses, including Jane Colvin-Roberson who was to be called as a “life care planner expert.” The disclosure stated that “the plaintiffs would furnish a copy of the Life Care Plan when it is completed.”

Defendants moved to strike the experts because plaintiffs did not provide sufficient disclosures regarding the “facts and opinions to which the experts were expected to testify or a summary of the grounds for each opinion.” The Court gave the plaintiffs three days to serve full and complete disclosures. When the supplemental disclosure was given to defendants, rather than including the life care plan by Colvin-Roberson, the plaintiffs named a new life care planning expert, Nurse Lampton. Upon motion of the defendants, Nurse Lampton was stricken, as the plaintiffs did not disclose her in a timely fashion and did not seek leave of the court to substitute her for the life care expert originally named. As plaintiffs had at that point failed to provide full disclosures for a life care planner, the trial court ruled that plaintiffs were “prohibited from offering into evidence…any life care plan and any life care planning testimony.”

As the case moved forward, plaintiffs were relying on a neurosurgeon, Dr. Melisi, as their standard of care expert. After much difficulty scheduling the deposition, plaintiffs were eventually ordered to provide deposition dates for Dr. Melisi within two weeks. When the deposition was finally scheduled, plaintiffs’ counsel did not attend, and Dr. Melisi did not bring his case file or any of the requested documents. Plaintiffs failed to produce the requested documents for three months and failed to respond to defendants’ motion to strike Dr. Melisi as an expert, and the trial court accordingly eventually granted the motion to strike. Further, the trial court held that Dr. Melisi, who was a neurosurgeon, was not qualified to testify regarding the standard of care for a nurse practitioner in Tennessee. With the sole standard of care expert disqualified and/or excluded, the trial court granted summary judgment to all defendants, which the Court of Appeals affirmed.

On appeal, plaintiffs raised several issues. First, plaintiffs argued that the life care planning expert was improperly excluded. The Court of Appeals, though, found that the information requested by defendants was consistent with Rule 26 of the Tennessee Rules of Civil Procedure, and that plaintiffs had several time extensions within which to provide the relevant information. The Court found that it was not an abuse of discretion to exclude the initial life care planner for failure to provide the required information and to exclude the second one for being untimely disclosed.

Next, plaintiffs argued that a motion to allow the disclosure of additional expert witnesses should have been granted. At one point this case was transferred to a different circuit court, and shortly thereafter plaintiffs sought to name additional expert witnesses. The trial judge denied this motion, which the Court of Appeals upheld, noting that by that point the parties were “beyond the original deadline set by the trial court for completing depositions” and that “adding more expert witnesses would have caused delay and expense and required the defendants to engage in additional pretrial discovery.”

Third, plaintiffs asserted that the nurse practitioner should not have been granted summary judgment. As to the nurse practitioner, plaintiffs’ standard of care expert testified that he did not supervise any nurse practitioners, was not familiar with their educational background, and when asked if he considered himself “familiar with the standard of professional practice as it applies to Nurse Practitioners in Nashville, Tennessee,” he answered “I’m not an expert in that, no.” Further, the Court pointed out that plaintiffs failed to respond to the nurse practitioner’s motion for summary judgment. Based on this evidence and record, the Court affirmed the finding that this expert was not qualified to testify as to nurse practitioners, and thus affirmed summary judgment.

Fourth, plaintiffs took issue with the trial court’s exclusion of Dr. Melisi as their standard of care expert for failing to produce documents. Here, the Court of Appeals noted that trial courts have “broad authority to impose sanctions upon a party who fails to comply with court orders or permit discovery,” and that the trial court here had a “factual and legal basis for its sanctions.” The Court affirmed the exclusion, pointing to the trial court’s finding that the defendants had been prejudiced by “being unable to conduct an adequate and thorough deposition.”

Finally, plaintiffs argued that the neurosurgeon defendant should not have been granted summary judgment, but the Court of Appeals found that with the standard of care expert excluded, the plaintiffs had no way to make their case and summary judgment was appropriate.

Essentially, this is an example of poor case management by the plaintiff. In an HCLA case, expert testimony is required, so plaintiffs must make naming the correct experts and submitting the proper disclosures a priority. Here, plaintiffs missed deadlines, failed to provide documents ordered by the court, consistently drug their feet and failed to even respond to some motions. Note too that this case was filed in October 2007 and the agreed  order was entered on September 24, 2008 giving plaintiff until July 1, 2009 to submit expert disclosures.  That order was modified by agreement and the deadline extended to November 1, 2009.

We call them scheduling orders, not scheduling suggestions.   There may have been some very appropriate reasons for missing the agreed-upon deadlines but those reasons are not in the four-corners of the appellate opinion.