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Rupp v. United States

September 16, 2008

AMBER R. RUPP AND RYAN W. RUPP, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge,

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO DISQUALIFY DEFENDANTS' EXPERT DR. STEVEN PLAXE

I. INTRODUCTION

On July 11, 2008, counsel for the parties in the above-entitled matter contacted the Court to request a telephonic Discovery Conference in accordance with Civil Local Rule 26.1(e) and this Court's Chamber's Rules regarding discovery disputes. The Court set a schedule for lodgment of a Joint Statement of Dispute and held the requested teleconference on July 28, 2008. [Doc. Nos. 60, 63.] The Court held a further teleconference with counsel on July 31, 2008 and August 15, 2008. [Doc. Nos. 66, 69.] Following the August 15, 2008 teleconference, the Court ordered further information regarding a proposed firewall procedure with respect to defense expert, Dr. Steven Plaxe. [Doc. No. 69.] On August 21, 2008, the Court held a further discovery teleconference. [Doc. No. 71.] Following the August 21, 2008 teleconference, the parties lodged a chronology of dates relevant to the retention of Dr. Plaxe. The Court held an additional discovery teleconference on September 12, 2008. [Doc. No. 74.]

II. BACKGROUND

This case arises from the medical treatment of Plaintiff Amber Rupp at the Naval Medical Center San Diego ("NMCSD") on June 16, 2003, where she underwent tumor removal surgery. [Complaint, para.8, Plaintiff's Responses to Defendant's First Set of Interrogatories, 2:20-3:4.] During the surgery, Plaintiff's left external iliac artery was inadvertently severed and then repaired.

Plaintiff alleges severe circulatory problems as a result of the complications of surgery and seeks non-economic damages for pain and suffering, loss of enjoyment of life, grief, anxiety and emotional distress. [Complaint, para.17; Plaintiff's Responses to Defendant's First Set of Interrogatories, 4:14-16.] Plaintiff also seeks economic damages from Defendant including past, present and future wage loss. [Complaint, para.17; Plaintiff's Responses to Defendant's First Set of Interrogatories, 4:10-12, 13:1-7.]

Substantial discovery has occurred in this case. Plaintiff has already been examined by: (1) Robert B. Hall Ph.D., her Vocational Rehabilitation Consultant, and (2) her vascular surgery expert, David Cossman, M.D., Medical Director of Vasular Trauma at Cedars-Sinai Medical Center. Plaintiff has also undergone independent medical examinations with Defendant's experts: (1) Charles Jablecki, M.D., a Board Certified Neurologist and Diplomate of the American Board of Psychiatry and Neurology; (2) Walter Strauser, M.D., a Board Certified Physiatrist and Psychiatrist and Diplomate of the American Board of Pain Medicine; and (3) Ralph Dilley, M.D., Chief of Surgery at Scripps Green Hospital. In addition, Plaintiff has been examined by Defendant's vocational rehabilitation expert.

Both sides have designated multiple experts. Defendant has retained Dr. Steven Plaxe ("Plaxe"), a gynecologic oncologist at UCSD Medical Center ("UCSD"), to testify on its behalf. All the experts have been deposed, including Plaxe.

III. ARGUMENTS

A. Key Chronology

Following is a chronology relevant to the issue of whether Dr. Steven Plaxe, M.D. ("Plaxe") should be excluded as an expert witness.

DATE EVENT

July 23, 2004 CT scan of abdomen and pelvis at NMCSD reveal possible right ovarian cyst.

December 20, 2004 Dr. O'Neill at NMCSD notes right ovarian cyst.*fn1

February-March, 2006 Plaintiff's care is transferred from NMCSD to UCSD.

August 1, 2007 Defendant designated Plaxe as an Expert witness.

October 27, 2007 Dr. O'Neill refers Plaintiff for another interventional procedure to drain her cyst.

November-December, 2007 Dr. Hall, interventional radiologist at NMCSD, tells Plaintiff that the right ...


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