Harrison v. United States of America

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SAMANTHA R. HARRISON, )
)
Plaintiff, )
)
vs. )
)
THE UNITED STATES OF AMERICA, )
) No. 2:19-cv-0017-HRH
Defendant. )
_______________________________________)
O R D E R
Motion to Exclude Expert Testimony of Dr. Andrea Trescot
Defendant moves to exclude the testimony of Dr. Andrea Trescot.1 This motion is
opposed.2 Oral argument was not requested and is not deemed necessary.
Background
Plaintiff Samantha Harris brings this Federal Tort Claims Act medical malpractice
case in which she alleges that on November 10, 2016, she had three of her wisdom teeth
extracted by Dr. Kretzschmar, a deemed federal employee.3 Plaintiff alleges that “[d]uring
1Docket No. 19.
2Docket No. 25.
3Complaint for Medical Malpractice at 2-3, ¶¶ 6, 10-12, Docket No. 1.
-1-
Case 3:19-cv-00017-HRH Document 85 Filed 04/06/21 Page 1 of 11

the course of the extractions, Dr. Kretzschmar either resected [her] right lingual nerve or
severely and permanently impaired its function.”4 Plaintiff avers that she has “developed
what is known as chronic regional pain syndrome” as a result of the injury to her lingual
nerve.5
In January 2019, Dr. Weidner, one of plaintiff’s treating physicians, noted that he was
referring plaintiff
back to the pain management program that she was instructed to
see through the Duke healthcare system (Dr. Aurelio Alonso at
Brier Creek Pain Clinic[.]). If he provides therapeutic proce-
dures such as Botox injections for the lingual and/or trigeminal
nerve (and these are successful), and the services could be
provided here in Anchorage, I will be happy to make a referral
to those programs. Specifically Dr. Lui at Neuroversion and/or
Dr. Trescot.[6]
Jill Friedman prepared a Life Care Plan that addressed plaintiff’s “need for future
medical treatment and her vocational potential subsequent to the injury that she sustained on
11/10/16.”7 In preparing the Life Care Plan, Friedman “consulted with Andrea Trescot,
M.D., Interventional Pain Physician[.]”8 Friedman avers that the purpose of this consultation
4Id. at 3, ¶ 14.
5Declaration of Samantha Harrison at 1, ¶ 2, Docket No. 26.
6Exhibit 2 at 3, Plaintiff Harrison’s Opposition [etc.], Docket No. 25.
7Friedman Expert Report at 1, Exhibit A, Motion to Exclude any Expert Testimony
Offered by Dr. Andrea Trescot, Docket No. 19.
8Id.
-2-
Case 3:19-cv-00017-HRH Document 85 Filed 04/06/21 Page 2 of 11

“was to facilitate pain treatment for [plaintiff], and to coordinate a reasonable and necessary
treatment plan with the physician who would be administering treatment[.]”9 Friedman avers
that she consulted with Dr. Trescot because she was one of the physicians referenced in Dr.
Weidner’s notes.10
On September 30, 2019, Dr. Trescot signed a statement, which was included in
Friedman’s expert report, that she had “agreed to evaluate and treat” plaintiff, that she
“agree[d] with the contents of the medical plan as presented in” the Life Care Plan and that
“[i]t is within my expertise to opine that it is more likely than not that the quantity, frequency
and duration of services listed in this chart will be medically necessary.”11 Dr. Trescot billed
Friedman for her time.12
On September 30, 2019, Friedman requested that plaintiff be scheduled to see Dr.
Trescot.13 An appointment was scheduled for March 6, 2020,14 the day discovery in this case
9Declaration of Jill Friedman at 2, ¶ 8, Docket No. 27.
10Id. at 2, ¶ 4.
11Friedman Expert Report, Exhibit A at 12, Motion to Exclude any Expert Testimony
Offered by Dr. Andrea Trescot, Docket No. 19.
12Exhibit G at 1, Motion to Exclude any Expert Testimony Offered by Dr. Andrea
Trescot, Docket No. 19.
13Exhibit E at 1, Motion to Exclude any Expert Testimony Offered by Dr. Andrea
Trescot, Docket No. 19.
14Exhibit D at 1, Motion to Exclude any Expert Testimony Offered by Dr. Andrea
Trescot, Docket No. 19.
-3-
Case 3:19-cv-00017-HRH Document 85 Filed 04/06/21 Page 3 of 11

was set to close.15 Plaintiff avers that March 6, 2020 was when she had her “first face-to-face
meeting/appointment with” Dr. Trescot and that she saw Dr. Trescot again on March 20,
2020, at which time “Dr. Trescot administered a Botox injection, which is one of the methods
being used to remedy my pain.”16 Plaintiff also avers that she “plan[s] on continuing to treat
with Dr. Trescot four times a year for pain-management. I expect that Dr. Trescot will be
providing and prescribing medications, applying therapies and remedies, and generally
managing my pain.”17 Plaintiff testified that her lawyer and Friedman accompanied her to
the March 6, 2020 appointment.18 She also testified that prior to March 6, 2020, she did not
consider Dr. Trescot one of her treating providers.19
On October 9, 2019, plaintiff identified Dr. Trescot as an expert witness in a
document entitled “Plaintiff’s Supplemental Expert Witness Identification.”20 Dr. Trescot
was listed as an “Expert in Pain Management[.]”21
15Order from Chambers at 1, Docket No. 15.
16Declaration of Samantha Harrison at 2-3, ¶¶ 9-10, Docket No. 26.
17Id. at 3, ¶ 11.
18Deposition of Samantha R. Harrison at 24:6-10, Exhibit A, Reply in Support of
Motion to Exclude Any Expert Testimony Offered by Dr. Andrea Trescot, Docket No. 36.
19Id. at 25:6-8.
20Exhibit 5, Plaintiff Harrison’s Opposition [etc.], Docket No. 25.
21Id. at 1.
-4-
Case 3:19-cv-00017-HRH Document 85 Filed 04/06/21 Page 4 of 11

On October 28, 2019, the date on which plaintiff’s expert reports were due,22 plaintiff
disclosed Dr. Trescot as a non-retained expert witness.23 Plaintiff included the following
summary of Dr. Trescot’s testimony:
Dr. Trescot is an expert in pain management. She is a non-
retained expert who is board-certified in interventional pain
management. Dr. Trescot agreed to review records and provide
recommendations for treatment. She has agreed to treat Ms.
Harrison so she will not have to travel to Duke Medical Center
four times a year. Dr. Trescot has reviewed Ms. Friedman’s
Life Care Plan as well as reviewed relevant pain management
records of Ms. Harrison. Dr. Trescot will testify that the
treatments outlined in the Life Care Plan are reasonable and
necessary and will likely continue over the course of Ms.
Harrison’s life.[24]
In her final witness list, filed on January 21, 2020, plaintiff included Dr. Trescot as
a “non-retained expert witness.”25 Plaintiff again stated that
Dr. Trescot is an expert in pain management. She is a non-
retained expert who is board-certified in interventional pain
management. Dr. Trescot agreed to review records and provide
recommendations for treatment. She has agreed to treat Ms.
Harrison so she will not have to travel to Duke Medical Center
four times a year. Dr. Trescot has reviewed Ms. Friedman’s
Life Care Plan as well as reviewed relevant pain management
records of Ms. Harrison. Dr. Trescot will testify that the
treatments outlined in the Life Care Plan are reasonable and
22Order from Chambers at 1, Docket No. 13.
23Plaintiff’s Expert Witness Disclosure, Exhibit 6 at 2, Plaintiff Harrison’s Opposition
[etc.], Docket No. 25.
24Id.
25Plaintiff’s Final Trial Witness List at 5, Docket No. 17.
-5-
Case 3:19-cv-00017-HRH Document 85 Filed 04/06/21 Page 5 of 11

necessary and will likely continue over the course of Ms.
Harrison’s life.[26]
Defendant now moves to exclude any expert testimony from Dr. Trescot.
Discussion
Rule 26(a)(2), Federal Rules of Civil Procedure, “provides for two different types of
expert disclosure: those retained or specifically employed to give expert testimony in a case
and those who are not retained or specially employed, but who nonetheless may provide
expert testimony[.]” Laslovich v. State Farm Fire and Cas. Co., 307 F.R.D. 533, 535 (D.
Mont. 2015) (internal citations omitted). “An expert who falls into the first category is
required to prepare an expert report.” Id. “An expert who falls into the second category,
however, need only provide disclosures stating both the subject matter on which the
non-retained expert is expected to present evidence and a summary of the facts and opinions
as to which the non-retained expert is expected to testify.” Id. Treating physicians often fall
into the second category. Fed. R. Civ. P. 26(a)(2)(C), 2010 Ad. Comm. Notes. But, a
treating physician who testifies as an expert “is only exempt from Rule 26(a)(2)(B)’s written
report requirement to the extent that his opinions were formed during the course of
treatment.” Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir.
2011).27 “Opinions that were not formed during the course of treatment . . . must be
26Id. at 5-6.
27“Though Goodman interpreted a prior version of” Rule 26, “the new rule does not
alter Goodman’s holding that a treating physician is only exempt from Rule 26(a)(2)(B)’s
(continued...)
-6-
Case 3:19-cv-00017-HRH Document 85 Filed 04/06/21 Page 6 of 11

presented in a detailed Rule 26(a)(2)(B) report.” Holcomb v. Ramar, Case No.
1:13-CV-1102 AWI SKO, 2017 WL 2930854, at *1 (E.D. Cal. July 10, 2017).
The issue here is whether Dr. Trescot was a treating physician for purposes of Rule
26 at the time she offered her opinion about the Life Care Plan. “‘Treating physicians are
not retained for purposes of trial. Their testimony is based upon their personal knowledge
and the treatment of the patient and not information acquired from outside sources for the
purpose of giving an opinion in anticipation of trial.’” Piper v. Harnischfeger Corp., 170
F.R.D. 173, 175 (D. Nev. 1997) (quoting Baker v. Taco Bell Corp., 163 F.R.D. 348, 349 (D.
Colo. 1995)).
Plaintiff argues that Dr. Trescot was a treating physician. Plaintiff suggests that it is
sufficient that Dr. Trescot had reviewed plaintiff’s files and charts and agreed to treat
plaintiff at the time she offered her opinion about the Life Care Plan in September 2019.
Plaintiff argues that a treating relationship can begin prior to a face-to-face meeting if, as
happened here, a physician reviews a patient’s files and charts prior to actually seeing the
patient. Plaintiff argues that Friedman did not “recruit” Dr. Trescot or “manufacture” a
relationship with Dr. Trescot, as defendant contends. Rather, plaintiff contends that
Friedman reached out to Dr. Trescot in an attempt to find a local pain management specialist
27(...continued)
written report requirement to the extent that his opinions were formed during the course of
treatment.” Adams v. Roberts, Case No. CV 18-148-M-DLC, 2019 WL 6715604, at *1 n.3
(D. Mont. Dec. 10, 2019) (quoting Goodman, 644 F.3d at 826).
-7-
Case 3:19-cv-00017-HRH Document 85 Filed 04/06/21 Page 7 of 11

for plaintiff, based on the mention of Dr. Trescot in Dr. Weidner’s notes. Plaintiff also
argues that it is within the role of a treating physician to offer opinions about the reasonable-
ness of future treatment. See, e.g., Crimmins v. United States, Case No. 2:17-cv-3470-DCN,
2019 WL 3766475, at *3 (D.S.C. August 9, 2019) (“Dr. Highsmith’s opinions about
Crimmins’s future medical treatment do fall within the scope of a treating physician’s
permissible testimony absent an expert report”). Plaintiff also argues that the fact that
Friedman paid Dr. Trescot for her review of plaintiff’s files and charts does not mean that
Dr. Trescot is a retained expert. See Procter & Gamble Co. v. Haugen, 184 F.R.D. 410, 413
(D. Utah 1999) (“[t]he mere payment for consulting time does not make an expert per se a
‘retained’ expert”). Plaintiff also emphasizes the fact that Dr. Trescot has actually treated
her, as evidence by her declaration. Plaintiff argues that the fact that her attorney and
Friedman accompanied her to the March 6, 2020 appointment does not mean that Dr. Trescot
is not one of her treating physicians. And, plaintiff argues that it is irrelevant that Dr. Trescot
was not listed as a treating physician in her responses to defendant’s interrogatories, given
that those were served on defendant on July 3, 2019,28 which was prior to Dr. Trescot
agreeing to treat plaintiff.
What is relevant here is that Dr. Trescot’s September 2019 opinion was not an opinion
formed during the course of Dr. Trescot’s treatment of plaintiff. Dr. Trescot’s September
2019 opinion could not have been formed during the course of her treatment of plaintiff
28Declaration of Counsel at 3, ¶ 12, Docket No. 28.
-8-
Case 3:19-cv-00017-HRH Document 85 Filed 04/06/21 Page 8 of 11

because she had not yet begun to treat plaintiff. She had agreed to treat plaintiff but such
treatment did not begin until March 6, 2020. As plaintiff herself testified, she did not
consider Dr. Trescot to be a treating provider prior to March 6, 2020. In September 2019,
Dr. Trescot was engaged by Friedman to comment on the adequacy of the Life Care Plan
after reviewing the plan and plaintiff’s medical files. That is what a retained expert does; it
is not what a treating physician does. Because Dr. Trescot’s opinion about the Life Care Plan
was not formed during her treatment of plaintiff, she cannot be considered a treating
physician for purposes of Rule 26.
Because Dr. Trescot was not a treating physician at the time she offered her
September 2019 opinion, she was subject to the written report requirement that applies to
retained experts. There is no dispute that Dr. Trescot did not disclose a written expert report.
Thus, plaintiff “‘is not allowed to use’” Dr. Trescot’s opinion as “‘evidence on a motion, at
a hearing, or at a trial, unless the failure’” to provide a written report “‘was substantially
justified or harmless.’” Carrillo v. B & J Andrews Enterprises, LLC, Case No.
2:11–cv–01450–RCJ–CWH, 2013 WL 394207, at *6 (D. Nev. Jan. 29, 2013) (quoting Fed.
R. Civ. P. 37(c)(1)).
“Several factors [] guide the determination of whether substan-
tial justification and harmlessness exist, including (1) prejudice
or surprise to the party against whom the evidence is offered; (2)
the ability of that party to cure the prejudice; (3) the likelihood
of disruption of trial; and (4) bad faith or willfulness in not
timely disclosing the evidence.”
-9-
Case 3:19-cv-00017-HRH Document 85 Filed 04/06/21 Page 9 of 11

Amarin Pharma, Inc. v. West-Ward Pharmaceuticals Int’l Ltd., 407 F. Supp. 3d 1103, 1116
(D. Nev. 2019) (quoting Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 242 (D. Nev.
2017)). “[T]he court retains discretion to fashion appropriate relief in the event of a failure
to disclose.” Id.
As to the issue of prejudice or surprise, defendant was aware, prior to the close of
discovery, that plaintiff intended to rely on Dr. Trescot as an expert witness. Defendant was
also aware that Dr. Trescot intended to opine that the medical services included in the Life
Care Plan were reasonable and appropriate. Thus, defendant cannot claim any undue surprise
as to Dr. Trescot’s opinion about the Life Care Plan. But, defendant would suffer some
prejudice if plaintiff were allowed to rely on Dr. Trescot’s opinion about the Life Care Plan
because defendant does not know the basis for Dr. Trescot’s opinion. Although defendant
could have deposed Dr. Trescot prior to the close of discovery in order to learn more about
the basis for Dr. Trescot’s opinion, such a deposition likely would have been somewhat
ineffective, given that Dr. Trescot did not prepare a written report and had not yet begun to
actually treat plaintiff. Moreover, because Dr. Trescot did not prepare a written report, as
she was required to do as a retained expert, defendant did not the opportunity to have one of
its experts review and respond to Dr. Trescot’s opinion. This prejudice could, however, be
easily cured by reopening discovery as to Dr. Trescot so that she could disclose a written
report and defendant could be given opportunity to have one of its experts respond to her
report and to take her deposition.
-10-
Case 3:19-cv-00017-HRH Document 85 Filed 04/06/21 Page 10 of 11

Reopening discovery as to Dr. Trescot would not disrupt the trial in this case as no
trial date has been set and no trial date is likely to be set for several months, given the
backlog of criminal trials due to the COVID-19 pandemic. And, despite defendant’s
arguments to the contrary, there has been no bad faith or willfulness on the part of plaintiff.
While it seems somewhat obvious to the court that Dr. Trescot was not a treating provider
at the time she offered her opinion on the Life Care Plan, the court cannot conclude that
plaintiff acted willfully or in bad faith by insisting that Dr. Trescot was a non-retained expert.
Plaintiff’s counsel’s handling of plaintiff’s experts in this case has been less than ideal, but
there is no evidence of bad faith or willfulness as it pertains to Dr. Trescot.
Conclusion
Based on the foregoing, the motion to exclude Dr. Trescot’s expert testimony29 is
denied. But, discovery as to Dr. Trescot will be reopened for a period of ninety days so that
Dr. Trescot can disclose a written report, defendant can have one of its experts respond to
her report, and defendant can take Dr. Trescot’s deposition. On or before April 20, 2021, the
parties shall confer and, on or before April 27, 2020, propose to the court a schedule for this
additional discovery.
DATED at Anchorage, Alaska, this 6th day of April, 2021.
/s/ H. Russel Holland
United States District Judge
29Docket No. 19.
-11-
Case 3:19-cv-00017-HRH Document 85 Filed 04/06/21 Page 11 of 11