Nutrition Expert Was Allowed to Opine on the Use of Statutes and Regulations
Posted on December 16, 2025 by Expert Witness Profiler
Plaintiffs are the estates of three decedents, Robert W. Petersen (“Mr. Petersen”), Mary Ann Simons, (“Ms. Simons”) and Charlotte Elaine Guilford (“Ms. Guilford”) (collectively, “Plaintiffs”). Plaintiffs were residents of Canyon Creek, an assisted living facility in Billings, Montana specializing in memory care, during the height of the COVID-19 pandemic in 2020. Plaintiffs alleged that Canyon Creek was negligent in the care of Mr. Petersen, Ms. Simons, and Ms. Guilford and that its negligent care caused their deaths.
One of Plaintiffs’ allegations in this case is that Canyon Creek failed to ensure that Petersen and Simons maintained acceptable parameters of nutrition and hydration as required by state statute and federal regulation.
Plaintiffs retained Janet McKee, a registered dietician, as their expert on the standard of care regarding how assisted living facilities monitor residents’ nutritional status and needs.
However, Defendants filed a motion to exclude McKee’s testimony under Federal Rule of Evidence 702, arguing that her opinions exceed the scope of her qualifications, are based on insufficient facts and data, and are not supported by a reliable assessment of the applicable standard of care. Defendants next filed a motion in the alternative to limit McKee’s testimony. They first argued that she lacked the qualifications to offer medical causation opinions or to use statutes or regulations to establish a duty and should therefore be prohibited from proffering such opinions. Second, they argued that any testimony about, reliance upon, or reference to opinions and information first disclosed during McKee’s deposition should be excluded from trial pursuant to Federal Rules of Civil Procedure 26 and 37.
Nutrition Expert Witness
Janet Sutton McKee holds a Master of Science in Food, Nutrition, and Institutional Management and a Bachelor of Science in Home Economics Education. She is a registered dietician and nutritionist and holds licenses in nine states.
Also, she is board certified as a specialist in gerontological nutrition and currently, she is the owner and manager of a nutrition and foodservice consulting company that services healthcare facilities, including acute care, skilled nursing and long-term care, residential psychiatric and behavioral treatment, and assisted living centers throughout the United States.
Discussion by the Court
A. Motion to Exclude Testimony of Plaintiffs’ Expert Janet McKee
1. Qualifications
McKee has delivered extensive educational programs and presentations nationwide for healthcare associations, industry conventions, and professional groups, covering topics including nutrition’s role in fall prevention, geriatric care, quality assurance, pandemic response, and liability reduction.
Also, she has developed and taught nutrition courses at the university level and for healthcare professionals. Further, she has conducted and published clinical research and authored/co-authored numerous articles and chapters on clinical nutrition topics, liability risk management, and speciality dietetics.
In other words, the Court held that McKee’s knowledge, skill, experience, and education are relevant to the opinions she offers regarding Canyon Creek’s dietary standard of care duties.
2. Reliability
The Court determined that McKee’s opinions satisfy the preponderance standard for admissibility, albeit marginally. First, McKee’s opinions are based on sufficient facts and data.
Although McKee did not cite specific documents and conceded that she would have preferred to review additional material, the Court nonetheless acknowledges that her testimony appears grounded in record evidence, as shown by the “thousands of pages” she produced at her deposition.
Moreover, McKee’s opinions reflected a reliable application of her experience, training, and education to the facts of the case.
For example, McKee opined that Canyon Creek failed to weigh Mr. Petersen on admission and that its negligence caused his weight loss, malnutrition, falls, dehydration, and pressure wounds, as well as a decreased quality and length of life. At deposition, however, she acknowledged not knowing when Petersen was admitted, not possessing his pre-admission records, and not being aware of his prior quality of life or whether he had preexisting pressure injuries. Absent this information, Defendants argued that her opinions are unreliable.
However, McKee did offer opinions relevant to her experience and supported by the record regarding Petersen’s condition and treatment at Canyon Creek.
Because McKee’s opinions rest on sufficient facts and data and reliably apply her expertise to the facts of this case, the Court denied Defendants’ motion to exclude.
B. Alternative Motion to Limit Testimony
1. Causation Opinions and Establishing a Duty
In the alternative, Defendants next moved to limit, in limine, McKee’s testimony by prohibiting her from offering causation opinions or using statutes or regulations to establish a duty.
a. Causation Opinions
Defendants first argued that McKee should be prohibited from opining that Canyon Creek caused Plaintiffs’ medical diagnoses or that Canyon Creek “promoted” Plaintiffs’ medical outcomes.
Plaintiffs did not intend to elicit a causation opinion from McKee. Therefore, the Court granted the alternative motion to limit testimony as to eliciting causation opinions.
However, the Court agreed with Plaintiffs that McKee “is uniquely positioned to render an opinion on the risks attendant to poor nutrition.”
b. Establishing a Duty
Defendants next argued that McKee cannot use statutes or regulations to evidence a standard of dietary care because she only opined that Canyon Creek violated the cited statutes and regulations, not that the statutes and regulations embodied an applicable standard of care.
Because McKee failed to identify laws embodying the standard of care, Defendants argued that she is not qualified to determine which statutes and regulations establish a duty applicable to Canyon Creek.
Based on McKee’s testimony and qualifications discussed above, the Court allowed her to opine on how the regulations and statutes she identified inform the standard of care and create a duty in this case. Plaintiffs did not intend to elicit ultimate issue opinions from McKee.
The Court denied the alternative motion to limit testimony as to McKee’s use of statutes and regulations to identify a standard of care and establish a duty.
2. Federal Rules of Civil Procedure 26 and 37
a. Rule 26
The Court found that McKee introduced new opinions in her Violations Report and throughout her deposition that were neither adequately disclosed nor supplemented by Plaintiffs.
After reviewing McKee’s Initial Report alongside her Violations Report, the Court found that though the documents are fundamentally aligned, they differ in breadth and scope, in their regulatory and legal framing, and in their identification of infection control and systemic failures.
Disclosures by experts are not living documents that can be added to on a continuing basis. If the Court were to treat McKee’s disclosures in this fashion, then “the full disclosure requirement implicit in Rule 26 … would interfere with the Court’s ability to set case management deadlines, because new reports and opinions would warrant further consultation with one’s own expert and virtually require new rounds of depositions.”
In addition to improper disclosure, Plaintiffs failed to adequately supplement McKee’s Initial Report under Rule 26(e). It is obvious that the additional material McKee relied on and the new opinions she formed after her disclosure far exceed the scope of Rule 26(e), that is—”correcting inaccuracies or filling the interstices of an incomplete report.”
Accordingly, Plaintiffs violated Rule 26 when they failed to adequately disclose or supplement McKee’s Initial Report with the numerous new opinions from her Violations Report and the detailed analysis she provided at her deposition.
b. Rule 37
The Court found that the late disclosure was neither substantially justified nor harmless. Initially, the late disclosure deprived Defendants of a meaningful opportunity to prepare for, examine, and respond to McKee’s new opinions at her deposition. True, Plaintiffs complied with Defendants’ subpoena. However, had Defendants not subpoenaed McKee, they may not have learned about the new materials she relied on or her new opinions until trial. Plaintiffs offer no reason why the additional materials or new opinions were not properly supplemented under Rule 26(e) before McKee’s deposition, and therefore, the late disclosure was not justified.
The Court next rejected Plaintiffs’ contention that the late disclosure was harmless because Defendants violated the parties’ agreement not to produce expert notes.
McKee’s “notes” advanced her opinions far beyond the scope of her summary analysis in her Initial Report. And even though Defendants have known the totality of McKee’s opinions for over a year, it was Plaintiffs’ duty to adequately disclose and supplement under Rule 26.
Here, the Court ultimately concluded that the risk of any prejudice to Defendants at trial is mitigated by two factors. First, despite Plaintiffs’ procedural infraction, Defendants have had adequate time to prepare for trial since they learned of McKee’s late disclosure 15 months ago. Second, expert testimony is an essential component to litigating the parties’ case; as such, there are less drastic sanctions available than striking portions of McKee’s opinions that would promote a fair trial. The jury should be allowed to weigh the entirety of Plaintiffs’ experts’ opinions.
Therefore, the Court elects to impose the lesser sanction of allowing Plaintiffs to file McKee’s supplemental expert report and allowing Defendants to reopen McKee’s deposition.
Held
(1) The Court denied the Defendants’ motion to exclude the testimony of Plaintiffs’ expert Janet McKee.
(2) The Court granted in part and denied in part the Defendants’ alternative motion to limit testimony.
Key Takeaway
Although certain aspects of McKee’s testimony may lack foundation in pre-admission records or prior medical history, her analysis of Canyon Creek’s care practices are nonetheless grounded in her professional experience and supported by the record. Therefore, her opinions are reliable.
Please refer to the blogs previously published about this case:
Palliative Care Expert’s New and Expanded Opinions on Facility Neglect Admitted
Economics Expert Was Allowed to Opine on Assisted Living Facility Administration Issues
Case Details:
| Case Caption: | Estate Of Robert W. Petersen Et Al V. Koelsch Senior Communities LLC |
| Docket Number: | 1:22cv11 |
| Court Name: | United States District Court, Montana |
| Order Date: | December 12, 2025 |
