Anderson v. United States of America, The

Background

Carl Anderson underwent paraesophageal hernia-repair surgery at a Department of Veterans Affairs Center in 2018 and later experienced medical complications. Anderson and Tammy Anderson brought claims against the United States under the Federal Tort Claims Act. They identified Daniel Tseng, M.D., as their medical expert and timely provided his reports.

The United States later learned that Tseng had been subject to disciplinary action at a hospital where he had privileges. The United States sought information about that matter, but Tseng and the hospital asserted peer-review privilege. The parties disputed the issue. Tseng ultimately withdrew from serving as the plaintiffs’ expert, and the plaintiffs promptly told the United States and moved to amend the scheduling order to designate a replacement expert.

Magistrate Judge Brisbois granted the motion subject to conditions intended to reduce prejudice to the United States. The United States objected, arguing that the magistrate judge had incorrectly applied the requirement of “good cause” under Federal Rule of Civil Procedure 16(b)(4) and should also have applied the “excusable neglect” standard under Rule 6(b)(1)(B).

Court’s analysis

The court explained that it could overturn the magistrate judge’s ruling on this non-dispositive pretrial matter only if the ruling was clearly erroneous or contrary to law.

Regarding good cause, the court upheld the finding that the plaintiffs acted diligently. The record showed that the plaintiffs did not know about Tseng’s disciplinary matter until the United States disclosed it, did not want Tseng to withdraw, informed the United States of his withdrawal on the day they learned of it, and filed their motion two days later. The court found no clear error in concluding that the plaintiffs were not responsible for Tseng’s withdrawal or attempting to gain a tactical advantage.

The court also upheld the conditions imposed to limit prejudice. The replacement expert could not offer new theories of breach of duty or causation beyond Tseng’s theories, had to form an independent opinion, and could not rely on or possess the prior expert reports while preparing the opinion. The plaintiffs also had to pay specified deposition-related expenses and reimburse the United States for 25 percent of the costs paid to its rebuttal expert, an amount totaling $8,812.50.

The court did not decide whether Rule 6(b)(1)(B)’s excusable-neglect standard was required in this situation. Instead, assuming without deciding that the standard applied, it found excusable neglect. The court determined that the possible prejudice could be reduced by the imposed conditions, the delay was limited and justified, Tseng’s withdrawal was outside the plaintiffs’ control, and the plaintiffs acted in good faith.

Disposition

Judge Jeffrey M. Bryan affirmed the magistrate judge’s October 8, 2024 order and overruled the United States of America’s objection. The ruling allowed the plaintiffs to designate a replacement expert subject to the stated conditions.