Internal Medicine Expert Witnesses Barred from Testifying Due to Procedural Violations
Posted on January 2, 2025 by Expert Witness Profiler
On October 10, 2023, Kathleen Loveall (Plaintiff) initiated this wrongful death action on behalf of her husband, James Loveall, naming the Government as a defendant under the Federal Tort Claims Act. The Court established September 23, 2024, as the deadline for Loveall’s expert designations. Loveall requested extensions of this deadline three times, without opposition from the Government, and the Court granted each request. The final deadline for expert designations was set for November 13, 2024.
On that date, Loveall designated Rajesh Bhagat, M.D., and Christopher Bourean, M.D., as an expert witnesses. The Government subsequently moved to strike these expert designations, asserting noncompliance with the expert designation requirements of Federal Rule of Civil Procedure 26(a). Loveall did not file a response, and the time to do so has expired.
Internal Medicine Expert Witnesses
Rajesh Bhagat
Dr. Rajesh Bhagat graduated from University College of Medical Sciences, University of Delhi, India (1983). After two years as an intern and houseman at Safdarjang Hospital, Delhi, he joined Vallabhbhai Patel Chest Institute (VPCI), University of Delhi. As a PGY 1-3, he graduated with a Diploma and an MD in Respiratory Diseases with honors. He served another three years as a Registrar at the same institution, where his research interests included ABPA and Asthma. This research led him to Dr. Cockcroft at the Royal University Hospital in Saskatoon, Canada. As a Research Fellow of the Saskatchewan Lung Association, he worked on the detrimental effects of regular use of beta-2 agonists (1993-1995). These studies were cited in the NIH National Asthma Education and Prevention Program-2.
After three years of residency in Internal Medicine at the University of Missouri-Columbia (1995-1998), he worked as a fellow in Pulmonary & Critical Care Medicine at Duke University Medical Center, NC (1998-2002). At Duke, he conducted research on lung injury and fibrosis. Since 2002, at UMMC and the VA in Jackson, he has enjoyed being a clinician, administrator, teacher, and researcher. His current focus is paraquat-induced lung injury, as well as mentoring and advising fellows and faculty.
Christopher Bourean
Dr. Christopher Michael Bourean specializes in hospital-based internal medicine. In April 2019, Bourean served as a resident at the G.V. (Sonny) Montgomery VA Medical Center (“VAMC”) in Jackson, Mississippi, where he gained valuable clinical experience.
Discussion by the Court
i. Defendant’s Arguments
The Government asked this Court to strike Loveall’s expert designations of Bhagat and Bourean as inadequate under both Rule 26(a)(2)(B) and Rule 26(a)(2)(C). Loveall’s designations state that Bhagat and Bourean’s expected testimony will be based on, among other things, their “treatment of the plaintiff and review of the medical records.” However, no written reports have been submitted for either physician, precluding compliance with Rule 26(a)(2)(B). Additionally, both Bhagat and Bourean executed declarations contradicting the opinions Loveall attributed to them, further undermining her designations. That Loveall’s designated experts are treating physicians does not excuse her from the obligation to properly disclose their opinions and the facts and data that form the bases of those opinions.
ii. Analysis
Even if a report were not required, Loveall’s designations fail to meet the standards of Rule 26(a)(2)(C). While Loveall sufficiently identified the subject matter of the witnesses’ testimony—critical care medicine for Bhagat and hospital-based internal medicine for Bourean—her disclosures do not satisfy the second prong of Rule 26(a)(2)(C). Specifically, Loveall expects both physicians to testify that the cause of death was acute respiratory failure likely due to pulmonary embolism, but she has provided no explanation of facts to support these opinions. Proper disclosure requires a clear and detailed explanation of the facts, data, and opinions to allow the opposing party to prepare rebuttal testimony. Instead, Loveall’s designations merely restate allegations from her complaint, rendering them insufficient under Rule 26(a)(2)(C).
The Court also found that striking the expert designations was an appropriate remedy. While Loveall identified the witnesses, her deficient disclosures and failure to properly comply with applicable rules warrant enforcement of local rules and scheduling orders. The testimony of Bhagat and Bourean is crucial to Loveall’s case, underscoring the importance of compliance with deadlines. The Government has demonstrated prejudice arising from continued delays, which impedes its ability to prepare for trial. Furthermore, the Court finds no reason to believe that a continuance would cure the deficient designations due to Loveall’s repeated extensions and her failure to respond to the Government’s motion. Because at least three of the four factors weigh in the Government’s favor, the Court finds striking Loveall’s designations is an appropriate remedy.
Held
The Court held that Loveall failed to comply with Federal Rule of Civil Procedure 26(a) and Local Uniform Civil Rule 26(a). It granted the Government’s motion to strike Loveall’s expert designations as unopposed under Local Rule 7(b)(3)(E) and found the Government’s arguments independently persuasive. Accordingly, the Government’s motion against Rajesh Bhagat and Christopher Bourean was granted.
Key Takeaway:
When deciding whether striking an expert witness is appropriate for such a failure, the Court considers four factors to determine if the failure was substantially justified or harmless: (1) the explanation for the failure to identify the witness, (2) the importance of the testimony, (3) the potential prejudice in allowing the testimony, and (4) the availability of a continuance to cure that prejudice.
Applying these factors, the Court found that Loveall failed to identify the witnesses properly. The Government demonstrated potential prejudice in its ability to prepare for trial if the testimony were allowed. The Court also determined that a continuance would not cure the deficiencies. This was especially true given Loveall’s repeated extensions and failure to act.
Case Details:
| Case Caption: | Kathleen Loveall V. United States Of America |
| Docket Number: | 3:23cv2998 |
| Court: | United States District Court for the Southern District of Mississippi, Northern Division |
| Order Date: | December 31, 2024 |
