Redmond v. United States
194 F. Supp. 3d 606
E.D. Mich.2016Background
- Herbert Redmond died in 2013 of metastatic hepatocellular carcinoma after prior VA visits dating back to 2001–2002; December 2006 VA labs recorded Hepatitis B but he was not informed or referred for follow-up until 2013.
- Nurse Sheila Behler told Redmond in 2006 his labs were “normal,” later admitted she failed to follow up or inform him; she made a clinical disclosure in March 2013 apologizing and acknowledging the 2006 positive test.
- Plaintiff (Redmond’s widow) alleges VA negligence under the FTCA: failure to notify, treat, or monitor Hepatitis B caused late detection of liver cancer and death.
- Plaintiff disclosed three experts (Dr. Bruce Bacon—hepatologist causation, Nurse Susan Cass—nursing standard of care, economist Michael Thompson); two expert reports were disclosed late and the government moved to exclude them under Rule 37 and Daubert.
- The United States moved for summary judgment arguing (1) FTCA statute of limitations, (2) lack of admissible expert causation/standard-of-care evidence, and (3) comparative fault by the decedent; court held discovery/expert issues did not warrant exclusion and denied summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Late expert disclosures under Fed. R. Civ. P. 37 | Late reports were harmless because identity/summary and supplemental materials were provided before deposition; full reports followed and defendant had opportunity to depose | Reports were untimely and prejudicial; exclusion appropriate because defendant lacked time to prepare and consult experts | Court: Late disclosure was harmless overall; denied exclusion but ordered plaintiff to pay costs and allow a second deposition of Dr. Bacon at plaintiff’s expense |
| Admissibility of causation expert (Daubert/Rule 702) | Dr. Bacon is a qualified hepatologist whose experience and opinions tie Hepatitis B, monitoring, and treatment to earlier detection and better prognosis | Dr. Bacon failed to review AASLD guidelines before forming opinions and is not an oncologist; opinions unreliable | Court: Dr. Bacon qualified; methodological criticisms go to weight, not admissibility; testimony admissible |
| Admissibility of nursing standard-of-care expert | Nurse Cass has decades of clinical experience and opines the duty to notify and refer is uniform nationally | Cass lacks Michigan/Detroit VA experience and state licensure; not qualified to opine on local standard | Court: Cass may testify; expert can establish that the standard is the same nationally; defendant may challenge weight at trial |
| Statute of limitations under FTCA (accrual) | Claim accrued when metastatic cancer and causal facts manifested (2013); administrative claim timely filed in 2014 | Claim accrued in 2002 when decedent knew of Hepatitis B; FTCA administrative claim filed in 2014 is untimely | Court: Fact disputes exist about earlier knowledge and injury manifestation; summary judgment denied on statute of limitations ground |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial courts gatekeep expert reliability and relevance)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to all expert testimony)
- Kubrick v. United States, 444 U.S. 111 (1979) (FTCA accrual: claim accrues when plaintiff knows both existence and cause of injury)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard—genuine dispute for trial requires sufficient evidence)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (movant’s initial burden in summary judgment; nonmoving party must show specific facts)
- Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776 (6th Cir. 2003) (Rule 37(c)(1) exclusion standards and harmless/substantial justification inquiry)
- Howe v. City of Akron, 801 F.3d 718 (6th Cir. 2015) (factors for assessing harmlessness under Rule 37)
- In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008) (expert testimony generally admissible; exclusion is the exception)
- Pluck v. BP Oil Pipeline Co., 640 F.3d 671 (6th Cir. 2011) (Daubert factors relevant in reliability assessment)
- Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521 (6th Cir. 2012) (application of Daubert in complex technical disputes)