UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAMOND LEE WILLIAMS,

Plaintiff,

v. No. 16-cv-2062 (EGS) UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Damon Lee Williams (“Mr. Williams”), a veteran of

the United States Air Force, brings this medical malpractice

action against the United States Department of Veterans Affairs

(“VA”) and the United States of America (collectively, the

“Defendants”) under the Federal Tort Claims Act (“FTCA”),

(b), arising from his treatment at the Veterans

Affairs Medical Center (“VAMC”) in Washington, D.C. See

generally First Am. Compl. (“FAC”), ECF No. 48. 1 In October 2013,

Mr. Williams arrived at the VAMC with swelling in his left foot,

throat, and jaw. Asserting that the VAMC staff failed to

properly treat his left foot, Mr. Williams contends that the

VAMC staff acted negligently, and that they were negligently

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. supervised in treating his left foot.

The Defendants move for summary judgment and the preclusion

of Mr. Williams’ proposed expert opinions. Upon careful

consideration of the parties’ submissions, the applicable law,

and the entire record herein, the Court concludes that

additional discovery is warranted to allow Mr. Williams to

demonstrate an essential element of his FTCA claims—the

applicable standard of care—based on expert testimony. Because

the Court has not set a trial date in this case, the Court will

exercise its discretion to re-open discovery for the limited

purpose of permitting Mr. Williams to either file a supplemental

expert report or retain a new expert witness to present expert

testimony concerning the applicable standard of care. Therefore,

the Court GRANTS Mr. Williams’ request for leave to amend his

expert opinions or disclose a new expert, and DENIES WITHOUT

PREJUDICE Defendants’ Motion to Preclude Expert Opinions and for

Summary Judgment.

I. Background

Mr. Williams served as an aircraft fuel maintenance

engineer in the Air Force until he was honorably discharged in

1997. Defs.’ Ex. E, ECF No. 44-2 at 47-48. 2 After working for an

2 The material facts—drawn from the parties’ submissions—are undisputed, unless otherwise indicated. See, e.g., Defs.’ Statement of Material Facts Not in Dispute (“Defs.’ SOMF”), ECF No. 44-3 at 1-2; Pl.’s Resp. to Defs.’ SOMF & Pl.’s Statement of 2 aerospace company on Andrews Air Force Base, Mr. Williams

eventually became an independent, personal physical fitness

trainer. Defs.’ Ex. A, ECF No. 44-2 at 10. On October 20, 2013,

Mr. Williams participated in an athletic event, “Tough Mudder,”

which involved completing an obstacle course by “[c]limbing

rope, pulling stones, carrying logs, running up hills, running

down hills, pulling sleds, [and] climbing walls.” Pl.’s Dep.

Tr., Defs.’ Ex. B, ECF No. 44-2 at 18.

During the competition, a pebble entered Mr. Williams’

shoe, causing a scrape to his left foot.

. After

cleaning it, Mr. Williams applied a bandage to his left foot to

stop the bleeding.

A few days later, Mr. Williams

experienced “stiffness” and “swelling” in his left foot, making

it difficult for him to walk.

. On October 29, 2013,

Mr. Williams called the VAMC’s Advice Line, complaining about an

“infection in [his] right lower molar” and “swelling and pain in

[his] right jaw and [the] back of [his] throat.” Defs.’ Ex. C,

ECF No. 44-2 at 37.

A. Mr. Williams Visits the VAMC

The next day, on October 30, 2013, Mr. Williams arrived at

the VAMC without an appointment, using a cane and complaining

about, inter alia, his left foot that was “stiff” and “swollen”

Genuine Issues (“Pl.’s SOMF”), ECF No. 46-2 at 1-3; Defs.’ Reply to Pl.’s SOMF, ECF No. 47-1 at 1-2. 3 with a “reddish tint.” Pl.’s SOMF, ECF No. 46-2 at 1 ¶ 1; see

also Pl.’s Dep. Tr., Defs.’ Ex. B, ECF No. 44-2 at 21-22. First,

a nurse, Arleen Gray (“Ms. Gray”), took Mr. Williams’

temperature, Pl.’s Dep. Tr., Defs.’ Ex. B, ECF No. 44-2 at 23-

24, noting that the “Chief Complaint” of Mr. Williams was “pain

and swelling of [the] neck and jaw from [an] infected tooth [in

the] r[igh]t lower molar [for the past] 4 days,” Defs.’ Ex. C,

ECF No. 44-2 at 34-35.

Next, a nurse practitioner, Marguerite McGarrah

(“NP McGarrah”), checked Mr. Williams’ glands and looked at his

left foot. Pl.’s Dep. Tr., Defs.’ Ex. B, ECF No. 44-2 at 25

(“[NP McGarrah] took a look at my foot. She also reached forward

and touched my neck, my glands in my neck area, right here.”). 3

As NP McGarrah observed him, Mr. Williams removed his left shoe

and sock. Pl.’s SOMF, ECF No. 46-2 at 2 ¶ 3; see also Pl.’s Dep.

Tr., Defs.’ Ex. B, ECF No. 44-2 at 26 (“I know I took the left

[shoe and sock] off.”). Mr. Williams did not request any tests

of his left foot. Pl.’s Dep. Tr., Defs.’ Ex. B, ECF No. 44-2 at

28.

NP McGarrah’s medical notes from the October 30, 2013 visit

3 The parties dispute whether NP McGarrah “examined” Mr. Williams’ left foot. Compare Pl.’s SOMF, ECF No. 46-2 at 2 ¶ 4 (“A mere look with no documentation or clinical advisements does not constitute an examination.”), with Defs.’ Reply to Pl.’s SOMF, ECF No. 47-1 at 2 ¶ 7 (“[Mr. Williams] testified under oath that [NP] McGarrah examined his left foot.”). 4 do not reflect her examination of his left foot or lower

extremity. Defs.’ Reply to Pl.’s SOMF, ECF No. 47-1 at 2 ¶ 8.

NP McGarrah, however, noted that the “Clinical Observation”

involved an examination of Mr. Williams’ mouth, noting “slight

swelling [on the] r[igh]t side of [his] jaw.” Defs.’ Ex. C, ECF

No. 44-2 at 35. NP McGarrah also noted that Mr. Williams’ mouth

was “unremarkable,” the “thyroid feels puffy,” and there was

“puffiness” on the right side of his neck that “extends around

to [the] thyroid.”

. NP McGarrah prescribed

Mr. Williams with Penicillin VK with “some misgivings, in light

of past h[istory] and concern for antib[iotic] resistance.”

.

B. Mr. Williams Receives Follow-Up Medical Treatment

A few days after the October 30, 2013 visit, Mr. Williams

boarded a plane to Seattle, Washington. Pl.’s Dep. Tr., Defs.’

Ex. B, ECF No. 44-2 at 30. At that point, Mr. Williams was

“[s]till feeling bad”; there was “[n]ot really much

improvement”; and “[t]he swelling seemed to still be there.”

In November 2013, Mr. Williams received follow-up medical

treatment at two different medical centers in the State of

Washington.

. On November 3, 2013, Mr. Williams’

chief complaints were “Foot Swelling” and “Dental Pain” during

his visit at the first medical center. Pl.’s Ex. B, ECF No. 46-4

at 13 (“The patient notes that on Tuesday he developed a red

5 area with blister to the dorsum of his left foot which has

gradually expanded to involve his entire lower extremity up to

the knee with some erythema extending up the left thigh.”). The

physicians advised him that surgery might be necessary. Pl.’s

Ex. G, ECF No. 44-6 at 68.

On the same day, Mr. Williams was transferred to the second

medical center.

There, Mr. Williams was diagnosed with “Left

leg cellulitis” and “NECROTIZING FASCIITIS” on November 4, 2013.

Defs.’ Ex. D, ECF No. 44-2 at 40. 4 Under the “Physical Exam”

section in the doctor’s notes, it contains the following

“Musculoskeletal” description:

left lower leg with erythema, bullae below the knee to the foot, leg is swollen and edematous compared to right, popped blisters contained clear yellowish/orange fluid, leg superior to knee is normal in caliber, leg is nontender, normal sensation, ROM is limited by swelling but able to move toes and foot at the ankle.

. Mr. Williams underwent emergency surgery for his

skin-related infections, and he spent approximately ten days in

the hospital. Pl.’s Dep. Tr., Pl.’s Ex. I, ECF No. 46-4 at 156.

4 Cellulitis is a skin infection. Defs.’ Ex. K, ECF No. 44-2 at 103 (“‘Cellulitis’ and ‘erysipelas’ refer to diffuse, superficial, spreading skin infections.”); Pl.’s Ex. H, ECF No. 46-4 at 102 (same). Necrotizing fasciitis is a flesh-eating infection. E.g., Lois Shepherd, The End of End-of-Life Law,

, 1736 (2014); Defs.’ Ex. K, ECF No. 44-2 at 107 (“Necrotizing fasciitis is an aggressive subcutaneous infection that tracks along the superficial fascia, which comprises all the tissue between the skin and underlying muscles.”); Pl.’s Ex. H, ECF No. 46-4 at 106 (same). 6 After his condition improved, Mr. Williams was discharged from

the second medical center on or about November 14, 2013.

C. Procedural History

Based on these events, Mr. Williams submitted an

administrative claim—the Standard Form 95—to the VA’s Office of

Regional Counsel in October 2015, FAC, ECF No. 48 at 2 ¶ 7,

claiming that NP McGarrah negligently “failed to screen or test

for the bacterial infection” during his October 30, 2013 visit

to the VAMC, Defs.’ Ex. E, ECF No. 44-2 at 45 (Claim for Damage,

Injury, or Death). On October 16, 2016, Mr. Williams filed the

instant action against the VA. See generally Compl., ECF No. 1.

On February 2, 2018, the Court granted over the VA’s objection

Mr. Williams’ motion to file an amended complaint to add the

United States of America as a defendant. Min. Entry of Feb. 2,

2018. Mr. Williams asserts two counts against the Defendants

under the FTCA: (1) negligence (“Count I”), FAC, ECF No. 48 at 3

¶¶ 17-19, 4 ¶¶ 20-26, 5 ¶¶ 27-32, 6 ¶¶ 33-38, 7 ¶¶ 39-41; and

(2) negligent supervision (“Count II”),

at 7 ¶¶ 42-45, 8 ¶¶

46-48. Mr. Williams seeks, among other things, an award of

$1,750,000.00.

.

After the close of discovery on March 13, 2019, Min. Order

of Jan. 31, 2019, the Defendants moved for summary judgment and

the preclusion of Mr. Williams’ proposed medical expert

opinions, see, e.g., Defs.’ Mot. to Preclude Expert Op. & For

7 Summ. J. (“Defs.’ Mot.”), ECF No. 44 at 1-2; Defs.’ Mem. of Law

in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 44-1 at 1-31.

Mr. Williams filed his opposition brief, see Pl.’s Opp’n, ECF

No. 46 at 1-2; see also Pl.’s Mem. of Law in Opp’n to Defs.’

Mot. (“Pl.’s Mem.”), ECF No. 46-1 at 1-30, and the Defendants

filed their reply brief, see Defs.’ Reply, ECF No. 47 at 1-14.

The motion is ripe and ready for the Court’s adjudication.

II. Legal Standard

Pursuant to Federal Rule of Civil Procedure 56, “[t]he

court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The moving party must identify “those portions of the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

(1986) (internal quotation marks omitted). To defeat summary

judgment, the nonmoving party must demonstrate that there is a

genuine issue of material fact.

. A material fact is

one that is capable of affecting the outcome of the litigation.

Anderson v. Liberty Lobby, Inc.,

(1986). A

genuine dispute is one where “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

8

“The evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.”

.

III. Analysis

In moving for summary judgment, the Defendants advance

three primary arguments. First, Mr. Williams cannot meet his

burden of proving his FTCA claims based on two separate

theories—negligence and negligent supervision—because he fails

to satisfy his burden of establishing a nationally applicable

standard of care through his proffered expert testimony. Defs.’

Mem., ECF No. 44-1 at 27-28. Next, Mr. Williams fails to

demonstrate that the Defendants breached the standard of care

for cellulitis because NP McGarrah examined Mr. Williams’ left

foot. Id. at 28-30. Finally, Mr. Williams’ negligent supervision

claim fails because he cannot establish the applicable standard

of care, demonstrate that the Defendants breached that standard

of care, and that the Defendants had actual or constructive

knowledge. Id. at 30-31. The Defendants move to preclude

Mr. Williams’ expert opinions on the grounds that the proffered

testimony of his expert witness, Fernando A. Porter, M.D.

(“Dr. Porter”), is inadmissible under Federal Rule of Evidence

702. Id. at 20-27.

Mr. Williams, in contrast, argues that summary judgment is

inappropriate because there are genuine issues of material fact—

9 namely, whether NP McGarrah properly assessed, treated, and

evaluated him, whether NP McGarrah performed a clinical exam on

his left foot, whether NP McGarrah deviated from the applicable

standard of care, and whether NP McGarrah improperly provided

care without supervision. Pl.’s Mem., ECF No. 46-1 at 27-29.

Mr. Williams contends that Dr. Porter is qualified to serve as

an expert, his expert testimony will assist the trier of fact,

his proffered testimony satisfies Rule 702’s requirements, and

his expert opinions are based on reliable principles and

methods. Id. at 22-26. Alternatively, Mr. Williams urges this

Court to grant him leave to either amend Dr. Porter’s proffered

expert opinions or substitute a different medical expert. Id. at

29.

The Court first articulates the applicable legal standards

in this case, and then addresses the parties’ arguments,

concluding that additional, limited expert discovery as to the

applicable standard of care is warranted. The Defendants may

renew their motion for summary judgment and challenges to

Mr. Williams’ medical expert after the close of limited expert

discovery.

A. Negligence Claims Under the Federal Tort Claims Act

Mr. Williams asserts claims under the FTCA. See

(b); see also

et seq. The FTCA contains a

limited waiver of sovereign immunity that allows the United

10 States to be sued for the negligent acts or omissions of its

employees acting within the scope of their employment. See

(b)(1). 5 Under the FTCA, “[t]he United States

shall be liable . . . in the same manner and to the same extent

as a private individual under like circumstances.”

. The Supreme Court has “consistently held that

§ 1346(b)’s reference to the ‘law of the place’ means law of the

State—the source of substantive liability under the FTCA.” FDIC

v. Meyer,

(1994) (collecting cases).

Accordingly, “[a] federal district court addressing an FTCA

action must apply the law of the state, presumably in this case

the District of Columbia, in which the alleged tortious conduct

occurred.” Hansen v. Lappin,

(D.D.C.

2011) (footnote omitted).

Here, the parties agree that the law of the District of

Columbia applies in this case because the alleged tortious acts

occurred in the District. See, e.g., Defs.’ Mem., ECF No. 44-1

5 Section 1346(b)(1), in relevant part, provides: [T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

(b)(1). 11 at 19-20; Pl.’s Mem., ECF No. 46-1 at 22. Under District of

Columbia law, “[i]n a negligence action predicated on medical

malpractice, the plaintiff must carry a tripartite burden, and

establish: (1) the applicable standard of care; (2) a deviation

from that standard by the defendant; and (3) a causal

relationship between that deviation and the plaintiff’s injury.”

Washington v. Wash. Hosp. Ctr.,

(D.C. 1990)

(citations omitted). “Expert testimony is required to prove all

three of the required elements, including causation, except

where the proof is so obvious as to lie within the ken of the

average lay juror.” Providence Hosp., Inc. v. Willis,

, 538–39 (D.C. 2014).

“In the District of Columbia, the applicable standard of

care in a medical malpractice action is ‘a national standard,

not just a local custom.’” Nwaneri v. Sandidge,

(D.C. 2007) (quoting Travers v. District of Columbia,

(D.C. 1996)). And “the testifying expert must

establish that the relevant standard of care is followed

nationally, ‘either through reference to a published standard,

discussion of the described course of treatment with

practitioners outside the District at seminars or conventions,

or through presentation of relevant data.’” Porter v. McHugh,

(D.D.C. 2012) (quoting Strickland v.

Pinder,

(D.C. 2006)). In general, “the

12 applicable standard of care for all health care professionals

and facilities is the ‘course of action that a reasonably

prudent doctor with the defendant’s specialty would have taken

under the same or similar circumstances.’” Bederson v. United

States,

(D.D.C. 2013) (quoting

Strickland,

); see also Travers,

(“The personal opinion of the testifying expert as to what he or

she would do in a particular case . . . is insufficient to prove

the applicable standard of care.”).

B. Challenges to Dr. Porter as an Expert Witness

Before reaching the merits, the Court turns to the

Defendants’ challenge to Dr. Porter’s qualifications as a

medical expert witness and the methodology forming his expert

opinions. See Defs.’ Mem., ECF No. 44-1 at 20-27; see also Pl.’s

Mem., ECF No. 46-1 at 22-23. Federal Rule of Evidence 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. Under Rule 702, trial judges serve as

13 gatekeepers to ensure that the methodology underlying the expert

testimony is valid and the expert’s conclusion is based on “good

grounds.” Daubert v. Merrell Dow Pharms., Inc.,

(1993); see also Haarhuis v. Kunnan Enters., Ltd.,

(D.C. Cir. 1999) (“[T]he decision whether to qualify

an expert witness is within the broad latitude of the trial

court and is reviewed for abuse of discretion.”).

A party may raise challenges to experts in pre-trial

motions, which are commonly referred to as “Daubert motions”

based on the Supreme Court’s decision on the admissibility of

expert testimony in Daubert v. Merrell Dow Pharmaceuticals,

Inc.,

(1993). 6 Given that the trial court has the

discretion “to decide whether or when special briefing or other

proceedings are needed to investigate reliability,” Kumho Tire

Co. v. Carmichael,

(1999), the Court may hold

a Daubert hearing, United States v. Machado-Erazo,

(D.D.C. 2013), aff’d,

(D.C. Cir. 2018).

Here, it is undisputed that Dr. Porter graduated from

Florida State University College of Medicine, is licensed to

practice medicine in twelve states and the District of Columbia,

6 “Under Daubert, the district court is required to address two questions, first whether the expert’s testimony is based on ‘scientific knowledge,’ and second, whether the testimony ‘will assist the trier of fact to understand or determine a fact in issue.’” Meister v. Med. Eng’g Corp.,

(D.C. Cir. 2001) (quoting Daubert,

). 14 and is a physician at Medstar Health, Doctor on Demand, and

Medstar Prompt Care. Pl.’s Ex. C, ECF No. 46-4 at 34-35. It is

uncontested that Dr. Porter serves as the Medical Director of

Life Ambulance. Id. at 34. The Defendants, however, contend that

Dr. Porter is unqualified on four grounds: (1) “[he] is not

qualified to render an expert opinion on the topic of the

appropriate standard of care in connection with cellulitis or

other skin-related infections,” Defs.’ Mem., ECF No. 44-1 at 20,

given that “there is no evidence that [Mr. Williams] had cellulitis

on October 30, 2013,” id. at 21; (2) “[he] has never been

qualified as an expert by any tribunal,” id. at 20; (3) “[h]e

has not authored any publications during his nine years as a

doctor,” id.; and (4) “[h]e is not an urgent care doctor, an

emergency care doctor, an infectious diseases specialist, or a

podiatrist,” id.

Mr. Williams disagrees, arguing that Dr. Porter is

qualified because: (1) he has served in “urgent care and primary

care roles,” id.; and (2) he has “provided care for over twenty

thousand . . . patients.” Pl.’s Mem., ECF No. 46-1 at 22.

Mr. Williams goes on to argue that:

Dr. Porter’s educational credentials, licensure in twelve . . . states and the District of Columbia, volume of practice, management experience, and administrative policy experience qualify him to articulate the appropriate level of care that should be provided in the urgent and primary care

15 settings and conversely affords him the ability to outline the clinical failings of Defendants, specifically NP McGarrah.

Id. at 23. Mr. Williams points out that Dr. Porter testified in

his deposition that “he has diagnosed cellulitis too many times

to count.” Id. But the Defendants argue that Dr. Porter

testified that “cellulitis was a minuscule portion of his home

care and telemedicine practice.” Defs.’ Reply, ECF No. 47 at 9.

Here, the Defendants acknowledge that “[c]hallenges to

expert testimony are typically resolved in motions in limine

prior to trial.” Defs.’ Mem., ECF No. 44-1 at 20. Nonetheless,

the Defendants cite two cases in this District to support the

proposition that “Daubert motions may be appropriate in the

context of summary judgment.” Id. (citing Crowley v. Perdue,

(D.D.C. 2017); Carmichael v. West, Civ. A.

No. 12-1969 (BAH),

, at *7 (D.D.C. Aug. 31,

2015)). As the court explained in Carmichael, however, “[c]ourts

have expressed concern . . . about the use of the Daubert

analysis at the summary judgment stage, instructing that

‘[b]ecause the summary judgment process does not conform well to

the discipline that Daubert imposes, the Daubert regime should

be employed only with great care and circumspection at the

summary judgment stage.’”

, at *7 (quoting

Cortes–Irizarry v. Corporacion Insular de Seguros,

(1st Cir. 1997)).

16 Faced with a challenge to expert witnesses at the summary

judgment stage, a member of this Court declined to consider such

an argument and “prefer[red] to evaluate [that] argument in a

motion in limine and at a Daubert hearing, instead of while

resolving a motion for summary judgment.” Landmark Health Sols.,

LLC v. Not For Profit Hosp. Corp.,

(D.D.C. 2013); see also Sloan v. Urban Title Servs., Inc.,

, 238 (D.D.C. 2011) (“The proper vehicle for

raising such issues is a motion in limine filed in the context

of pretrial proceedings and, if necessary, the Court shall

consider a request that a Daubert hearing be held to evaluate

[the expert’s] proffered testimony.”). This Court is guided by

the well-established principle that “[t]rial courts are afforded

substantial latitude in deciding the procedure necessary to test

the sufficiency of a potential expert.” Landmark Health Sols.,

LLC, 950 F. Supp. 2d at 138 (citation and internal quotation

marks omitted). This Court will not consider the Defendants’

arguments challenging Dr. Porter as an expert at this juncture

without a Daubert hearing. See Kumho Tire Co.,

(explaining that trial judges have “latitude in deciding how to

test an expert’s reliability, and to decide whether or when

special briefing or other proceedings are needed to investigate

reliability”). The Defendants may raise its arguments

challenging Dr. Porter as an expert and his proposed expert

17 testimony “via a [motion in limine] followed by the Daubert

hearing, to be scheduled shortly thereafter.” Landmark Health

Sols., LLC, 950 F. Supp. 2d at 138.

C. Whether Mr. Williams Establishes the Applicable Standard of Care

Neither party disputes that Mr. Williams must prove the

standard of care based on expert testimony. See Defs.’ Mem., ECF

No. 44-1 at 19, 21; see also Pl.’s Mem., ECF No. 46-1 at 22. But

the parties disagree on the applicable standard of care. Compare

Pl.’s Mem., ECF No. 46-1 at 18, with Defs.’ Mem., ECF No. 44-1

at 7, 21-25. Mr. Williams argues that the Defendants failed to

meet the following standard of care identified in Dr. Porter’s

expert report:

[E]valuation and treatment for cellulitis at minimum, would have been to evaluate the extremity or area of concern with a history and physical exam consisting of, but not limited to, the appearance of the skin, observation of fluid collection, color and collection of fluid for culture if drainage was present, temperature of the skin compared to other areas, sensation and laboratory testing. In addition to not practicing within the standard of care there were no follow-up instructions given to advise Mr. Williams if or when to come back if he were to have complications, worsening symptoms or incomplete/poor response to the treatment given.

If NP McGarrah would have performed even some of the aforementioned exams or test to the lower extremity, or followed up via phone call or in person with Mr. Williams, the chances of earlier detection, treatment, and reduce

18 suffering would have been improved for Mr. Williams. It is very likely that if a lower extremity exam had been properly performed, evaluated and treated with the proper spectrum of antibiotics, that Mr. Williams would not have had to undergo lifesaving medical treatment that left him with a career ending outcome (as a personal trainer) due to significantly decreased physical capacity, overall decrease in quality of life, chronic swelling, extremity and joint pain, and neurological dysfunction.

Id. at 18 (quoting Dr. Porter’s Expert Report, Pl.’s Ex. C, 46-4

at 31-32).

The Defendants argue that Dr. Porter’s proposed standard of

care is the “wrong” one, Defs.’ Mem., ECF No. 44-1 at 22,

because “the standard of care must involve the appropriate

treatment for a patient with a puffy thyroid and a swollen left

foot,” id. at 23. In the Defendants’ view, Dr. Porter advocates

for “a standard of care for the treatment of cellulitis, which

is off the mark because there is no evidence that [Mr. Williams]

had cellulitis on October 30, 2013.” Id. at 21. The Defendants

contend that “[e]ven if [Mr. Williams] did suffer from

cellulitis on that day, Dr. Porter’s proposed standard is

inadmissible because it is not a nationally recognized standard,

but rather his own personal view of what the treatment for

cellulitis should have been.” Id. According to the Defendants,

“[a] complaint of stiffness, swelling and skin with ‘a little

bit of reddish tint’ does not necessarily mean that [Mr.

19 Williams] had, or would have, cellulitis in his left foot.” Id.

at 23. The Defendants point out that Dr. Porter “grounded his

proposed standard of care on a condition that was not apparent

when [NP] McGarrah examined [Mr. Williams].” Id.

In response, Mr. Williams argues that “[t]here is

absolutely nothing in NP McGarrah’s treatment note that supports

[the] Defendants’ [new-found] contention that [NP McGarrah] did

in fact examine [Mr. Williams’] left foot on October 30, 2013.”

Pl.’s Mem., ECF No. 46-1 at 23. According to Mr. Williams,

“Dr. Porter will assist the trier of fact in understanding the

national standard of care in a clinical setting for a healthy

active adult (in this instance a person who completed a twelve

mile obstacle course), having no known infirmities but for some

reason is ambulating with a cane due to swelling and stiffness

in a lower extremit[y].” Id. at 24.

The Defendants argue—and Mr. Williams does not dispute—that

Dr. Porter’s proposed standard of care regarding cellulitis was

the wrong standard of care. Defs.’ Reply, ECF No. 47 at 5. In

the absence of expert testimony establishing the applicable

standard of care, Mr. Williams’ negligence claims fail. See,

e.g., Burke v. Air Serv Int’l, Inc.,

, 1105–06

(D.C. Cir. 2012) (explaining that a plaintiff’s failure to

present expert testimony to establish the standard of care may

justify the grant of summary judgment in favor of the

20 defendant); Richardson v. Korson,

(D.D.C. 2012) (explaining that a plaintiff “must present

evidence on the standard of care to survive summary judgment on

his negligence claim”). For the reasons explained below,

however, the Court will re-open discovery for the limited

purpose of permitting Mr. Williams to supplement Dr. Porter’s

expert report or retain a new expert as to the applicable

standard of care.

D. Dr. Porter’s New Expert Opinions

Without addressing the issue of whether the standard of

care regarding cellulitis was the correct one, Mr. Williams

presents two new opinions in his opposition brief. See Pl.’s

Mem., ECF No. 46-1 at 23-24; see also Defs.’ Reply, ECF No. 47

at 5-6. The Defendants argue that Mr. Williams attempts to amend

or supplement his expert disclosures without filing a proper

motion to do so, and he attempts to rely on the two new opinions

that are untimely and inappropriate. Defs.’ Reply, ECF No. 47 at

6-8.

Under Federal Rule of Civil Procedure 26, the parties must

disclose their expert witnesses, see Fed. R. Civ. P.

26(a)(2)(A), and provide an expert report for each expert

containing “a complete statement of all opinions the witness

will express and the basis and reasons for them”; “the facts or

data considered by the witness in forming them”; and “any

21 exhibits that will be used to summarize or support [the

opinions],” Fed. R. Civ. P. 26(a)(2)(B) (emphasis added). Under

Rule 26(a)(2)(D), each expert report must be disclosed “at the

times and in the sequence that the court orders.” Fed. R. Civ.

P. 26(a)(2)(D). A party’s failure to disclose information as

required by Rule 26(a) triggers Rule 37.

Under Rule 37(b)(2)(A)(ii), the Court may prohibit a party

from the introduction of designated matters into evidence if the

party fails to obey a discovery order. Fed. R. Civ. P.

37(b)(2)(A)(ii). A party’s failure to make the Rule 26(a)

disclosures results in the party not being permitted to use that

information, “unless the failure was substantially justified or

is harmless.” Fed. R. Civ. P. 37(c)(1). “Rule 37(c)(1) is a

self-executing sanction.” Norden v. Samper,

(D.D.C. 2008). “The proponent of the evidence bears the

burden of showing that the failure to disclose the evidence ‘was

substantially justified or is harmless.’” Moore v. Napolitano,

, 25 n.12 (D.D.C. 2013) (quoting Fed. R. Civ.

P. 37(c)(1)).

Here, it is undisputed that the new expert opinions in

Mr. Williams’ opposition brief were disclosed after the close of

discovery. Mr. Williams’ first new opinion is that “[Dr. Porter]

will use the VA’s own guidelines, a national standard, which

clearly states ‘[m]edical documentation is required for all

22 services provided to a Veteran under the [VA].’” Pl.’s Mem., ECF

No. 46-1 at 23 (quoting Pl.’s Ex. F, ECF No. 46-4 at 60).

Dr. Porter relies on the TriWest HealthCare Alliance’s guidance—

“Medical Documentation Requirements” and “Quick Reference Guide

– All Regions”—that was not included in his expert disclosures.

See

; see also Pl.’s Ex. F, ECF No. 46-4 at 60-63.

Relying on that guidance, Mr. Williams contends that NP

McGarrah’s medical notes failed to meet the “minimum

requirements for content of medical documentation or records,

for VA staff.” Pl.’s Mem., ECF No. 46-1 at 22. Specifically,

Mr. Williams argues that NP McGarrah’s notes did not satisfy a

portion of the “Quick Reference Guide”: “an executive summary of

the encounter to include any procedures performed and

recommendations for further testing or follow-up (i.e. discharge

summary for inpatient).”

(quoting Pl.’s Ex. F, ECF No. 46-4

at 63).

The Defendants respond that the “Quick Reference Guide”

does not satisfy Rule 702. The Defendants point out that:

(1) the “Quick Reference Guide” is dated “January 4, 2019, more

than four years after [Mr. Williams’] visit to the [VAMC]”;

(2) Mr. Williams did not disclose the document in his expert

disclosures; and (3) Mr. Williams attached the document as an

exhibit to his opposition brief after Dr. Porter’s deposition.

Defs.’ Reply, ECF No. 47 at 7. The Defendants argue that

23 Mr. Williams alleges for the first time in his opposition brief

that “his injuries were due to a breach of the standard of care

relating to medical documentation, and [Mr. Williams] fails to

explain how such a breach could possibly have caused his

injuries.”

For the second new opinion identified in his opposition

brief, Mr. Williams contends that Dr. Porter will use

“nationally accepted standards” to: (1) “outline the appropriate

clinical testing and laboratory testing that should occur in

said circumstance and the appropriate manner in which to

escalate the treatment of the patient”; and (2) “assist the

trier of fact in understanding the national standard of care in

a clinical setting for a healthy active adult (in this instance

a person who completed a twelve mile obstacle course), having no

known infirmities but for some reason is ambulating with a cane

due to swelling and stiffness in a lower extremit[y].” Pl.’s

Mem., ECF No. 46-1 at 24. Dr. Porter relies on a publication,

entitled “Practice Guidelines for the Diagnosis and Management

of Skin and Soft Tissue Infections: 2014 Update by the

Infectious Diseases Society of America,” which was published in

2014. Pl.’s Ex. H, ECF No. 46-4 at 88-130. Specifically,

Mr. Williams cites to subsection IV—“What Is Appropriate for the

Evaluation and Treatment of Erysipelas and Cellulitis?”—in that

publication.

(citing Pl.’s Ex. H, ECF No. 46-4 at 93-104).

24 According to Mr. Williams, Dr. Porter “supplemented his

deposition testimony with the article [outlining] where he

received his authority.” Pl.’s Mem., ECF No. 46-1 at 26.

The Defendants disagree with Mr. Williams’ assertion that

Dr. Porter supplemented his deposition testimony, noting that “a

party may [not] ‘supplement’ an expert’s sworn deposition

testimony by subsequently producing documentation that had not

been previously disclosed.” Defs.’ Reply, ECF No. 47 at 8 n.3.

With respect to the second of the two new opinions, the

Defendants point out that the “publication, which also was

produced to [the] Defendants after Dr. Porter’s deposition,

involves a summary of recommendations to new guidelines for skin

and soft tissue infections, and was issued in July 2014, more

than eight months after Plaintiff’s visit to the [VAMC].” Id. at

7-8. The Defendants argue that “Dr. Porter must establish a

nationally applicable standard of care” and “Dr. Porter has not

done that.” Id. at 7.

Asserting that Mr. Williams attempts to “shift the standard

of care from cellulitis to ‘skin and soft tissue infections,’”

the Defendants contend that “there is no evidence that

[Mr. Williams] had cellulitis or any other skin or soft tissue

infection on October 30, 2013” because “[Mr. Williams] testified

that his left foot was stiff, swollen and had a ‘reddish’

color.” Id. at 8. The Defendants go on to argue that

25 Mr. Williams should not be allowed to offer an expert opinion

about the standard of care for skin-related infection treatment

without factual support, and that the Court should reject

Mr. Williams’ “unjustified and untimely effort to replace the

withdrawn opinions with new, undisclosed, equally inadmissible

opinions.” Id.

Although the Court agrees that Mr. Williams’ disclosure of

the expert disclosures and new opinions was untimely, the

relevant question is whether Mr. Williams’ failure to disclose

the new expert opinions and the supporting documents was

harmless. See Fed. R. Civ. P. 37(c)(1) (“If a party fails to

provide information . . . as required by Rule 26(a) or (e), 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.”).

Neither party focuses on the issue of whether the failure to

disclose was substantially justified. See Pl.’s Mem., ECF No.

46-1 at 15-26; see also Defs.’ Reply, ECF No. 47 at 6-8. The

Defendants do not argue—and the Court cannot find—that the

disclosure of the late expert disclosures was not harmless. See

Defs.’ Reply, ECF No. 6-8. While the Defendants contend that the

expert disclosures and new expert opinions were untimely, id. at

6, 8, the Defendants fail to mention the limited exception in

Rule 26(e), see id.

26 Rule 26(e) provides that “[a] party who has made a

disclosure under Rule 26(a) . . . must supplement or correct its

disclosure or response . . . in a timely manner if the party

learns that in some material respect the disclosure or response

is incomplete or incorrect, and if the additional or corrective

information has not otherwise been made known to the other

parties during the discovery process or in writing.” Fed. R.

Civ. P. 26(e)(1). “This rule ‘permits supplemental reports only

for the narrow purpose of correcting inaccuracies or adding

information that was not available at the time of the initial

report.’” Richardson,

(quoting Minebea

Co. v. Papst,

(D.D.C. 2005)). And “supplemental

reports are permitted under Rule 26(e)(1) only in the following

situations: (1) upon court order; (2) when the party learns that

the earlier information is inaccurate or incomplete; or (3) when

answers to discovery requests are inaccurate or incomplete.”

Minebea Co.,

.

It is undisputed that the “Quick Reference Guide”

supporting one of the new expert opinions was not available at

the time of Dr. Porter’s initial expert report, dated August 15,

2018, because the “Quick Reference Guide” bears the date of

January 4, 2019. See Pl.’s Ex. C, ECF No. 46-4 at 27; see also

Pl.’s Ex. F, ECF No. 46-4 at 60. Discovery, however, closed on

March 13, 2019, Min. Order of Jan. 31, 2019, and the Court

27 directed Mr. Williams to produce certain requested documents to

the Defendants by no later than April 5, 2019, Min. Order of

Apr. 1, 2019. There is no dispute that the article—“Practice

Guidelines for the Diagnosis and Management of Skin and Soft

Tissue Infections: 2014 Update by the Infectious Diseases

Society of America”—was available to Dr. Porter at the time he

submitted his expert report given that the article was published

in 2014. See Pl.’s Ex. C, ECF No. 46-4 at 27; see also Pl.’s Ex.

H, ECF No. 46-4 at 88. Nonetheless, the Court cannot find that

the article’s late disclosure “blindside[d] [the] [D]efendants

with new information” in contravention to Rule 26’s prohibition

of unfair surprises at trial. Dormu v. District of Columbia,

, 28 n.16 (D.D.C. 2011). But the “new opinions”

could have blindsided the Defendants.

That being said, “the trial court [has] wide latitude to

receive evidence as it sees fit.” United States v. Microsoft

Corp.,

(D.C. Cir. 2001). “[T]he Court may

‘exercise considerable discretion in handling discovery

matters,’ including deciding whether to reopen or extend

discovery.” United States v. Kellogg Brown & Root Servs., Inc.,

(D.D.C. 2012) (quoting Food Lion, Inc. v.

United Food & Commercial Workers Int’l Union,

(D.C. Cir. 1997)); accord Barnes v. District of Columbia,

(D.D.C. 2012) (“Deciding whether to extend

28 discovery is within the sound discretion of the trial court.”).

With these principles in mind, the Court will permit

additional, limited discovery in this case. “While it is

certainly disruptive to the efficient management of this case to

re-open discovery—especially where [Mr. Williams] and his expert

had countless opportunities to remedy deficiencies in the report

during the extended period for discovery—the Court finds that

the harm to [Mr. Williams] of precluding the [late-filed

disclosures and opinions] outweighs this disruption.”

Richardson,

. There is no question that

Mr. Williams bears the burden of establishing the nationally

applicable standard of care based on expert testimony, and the

Court cannot find that Mr. Williams has met his burden to do so.

But the Defendants do not argue that prejudice will ensue from

Mr. Williams’ request for leave to either amend Dr. Porter’s

testimony or substitute a different expert. See Defs.’ Reply,

ECF No. 47 at 14; see also Pl.’s Mem., ECF No. 46-1 at 29.

The Court discerns no harm or prejudice to the Defendants

because the Court has not set a trial date in this case. See

Richardson,

(finding no prejudice where a

party submitted untimely supplemental expert materials and no

trial date had been set by the court). The mere passage of time

is not enough to demonstrate prejudice where defendants, as

here, do “not describe any significant prejudice [that they]

29 would suffer from reopening discovery for the limited purpose of

adding [a medical] expert.” Watt v. All Clear Bus. Sols., LLC,

(D.D.C. 2012). The Court will re-open

discovery for the limited purpose of permitting Mr. Williams to

either file a supplemental expert report or retain a new expert

witness for him to present expert testimony to establish the

applicable standard of care. Accordingly, the Court GRANTS

Mr. Williams’ request for leave to amend his expert opinions or

disclose a new expert, and DENIES WITHOUT PREJUDICE the

Defendants’ motion for summary judgment. 7 The Defendants may

renew their motion after the limited discovery.

* * *

Having found that Mr. Williams did not comply with the

applicable rules governing discovery, “[i]t is within the

Court’s discretion to impose sanctions—e.g., the imposition of

costs—on a party who has failed to comply with the rules

governing discovery.” Richardson,

(ordering the plaintiff to bear costs of his expert’s deposition

7 Having decided that additional, limited discovery is warranted, the Court need not address the Defendants’ remaining arguments that: (1) the Defendants did not breach the standard of care, see Defs.’ Mem., ECF No. 44-1 at 28-30;(2) Mr. Williams’ negligent supervision claim fails “because [he] cannot establish the applicable standard of care or demonstrate that [the] Defendant[s] breached that standard of care,” id. at 30; and (3) Mr. Williams cannot demonstrate that the Defendants had actual or constructive knowledge, id. at 30-31. 30 where his expert made untimely supplemental submissions). The

Court therefore orders Mr. Williams to bear the cost of his

expert’s deposition.

IV. Conclusion

For the reasons set forth above, the Court GRANTS

Mr. Williams’ request for leave to amend his expert opinions or

disclose a new expert, and DENIES WITHOUT PREJUDICE Defendants’

Motion to Preclude Expert Opinions and for Summary Judgment.

Mr. Williams shall bear the costs of his expert’s deposition. A

separate Order accompanies this Memorandum Opinion.

SO ORDERED

Signed: Emmet G. Sullivan United States District Judge March 20, 2020

31