Court grants exclusion of physician's written testimony in Gyrus Acmi case

By Takesha Thomas | Dec 1, 2018

ST. LOUIS – A district court has granted a request to have written testimony from a treating physician not be included in an upcoming product liability case.

On Nov. 20, Judge Charles Shaw of the U.S. District Court Eastern District of Missouri Eastern Division granted plaintiff Elicia Cutsinger's request. Attorneys for Cutsinger filed a motion for leave to amend case management order and relief from treating physician expert report with respect to Dr. Brian Van Tine in her case against Gyrus Acmi Inc. According to the ruling, Van Tine was a treating physician of Cutsinger.

Attorneys for Gyrus Acmi had opposed the motion, citing that Cutsinger knew for some six months that Van Tine "would not be able to provide a written expert report, and yet she waited until after the expert disclosure deadline to file her motion," the ruling states.

Additionally, the ruling states the defendants argued that Van Tine’s "unavailability to write a written expert report does not excuse non-compliance." 

Cutsinger's attorneys provided the defendant in October the plaintiff’s Rule 26(a)(2) disclosure of expert witnesses, "which disclosed Van Tine as a non-retained witness, gave the subject matter on which he was expected to present evidence, and summarized his previous opinion testimony," the ruling states.

Attorneys for Cutsinger filed the motion requesting that Van Tine not be required to submit written expert report at that time. According to the ruling, Cutsinger claimed she had not been getting cooperation from the doctor. Her counsel claimed they were also informed by Washington University that Van Tine, who works as an oncologist there, could not be retained as an expert witness because he is Cutsinger's treating physician.

Cutsinger filed suit in January against Gyrus after undergoing a 2013 laparoscopic surgical procedure in which a surgeon used a device, the Gyrus LPM Plasma Morcellator, to cut her uterus into small fragments. 

Cutsinger alleged that subsequent to that surgery, she was diagnosed with leiomyosarcoma, "a deadly form of uterine sarcoma, and that the malignant cells were spread throughout her abdomen and pelvis by the GYRUS LPM Plasma Morcellator, worsening her condition," the ruling states.

As a result, Cutsinger has since undergone cancer treatment, one of the treating physicians being Van Tine, an oncologist at St. Louis' Washington University.

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