Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 7236-Sidney I. Schenkier, Magistrate Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge
Before BAUER, POSNER, and ROVNER, Circuit Judges.
Plaintiff-appellant David B. Gicla had his right-ankle joint replaced with an implant at a Veteran's Administration Medical Center in Chicago. After the implant failed to relieve the chronic pain and swelling that Gicla was experiencing, a series of five additional surgeries followed, culminating in the amputation of his right leg below the knee. Gicla filed this suit for malpractice against the United States and various VA medical personnel pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. The individual defendants were dismissed from the suit, and the case was tried to the bench. The magistrate judge, presiding with the parties' consent, entered judgment in favor of the United States, finding that the VA medical personnel who treated Gicla did not breach the duty of care that they owed to him. Gicla appeals. He primarily challenges the district court's refusal to exclude the testimony of a defense expert for a purported violation of Federal Rule of Civil Procedure 26, after the expert disclosed on cross-examination that just before taking the witness stand he looked at x-rays that he had not previously reviewed in rendering his opinion on behalf of the United States. Gicla also contends that the district court erred in crediting the United States' witnesses over his own. Finding no error, we affirm the judgment.
In 1999, Gicla consulted with Dr. John Grady, director of the podiatry service at the Westside VA Medical Center in Chicago. Gicla had severe arthritis in his right ankle stemming from a fracture he suffered in a motorcycle accident some twenty years earlier, while he was serving in the U.S. Navy. The arthritis caused him to experience extreme pain and swelling. After non-surgical efforts at relieving his symptoms proved unsuccessful, and after discussing his options with Dr. Grady, Gicla agreed to have his ankle joint replaced using the DePuy Agility(r) Total Ankle System, an implant which had only recently been approved by the U.S. Food and Drug Administration. Gicla was 40 years old at that time.
The surgery, performed in April 1999, was the first occasion on which VA physicians had used the DePuy Agility(r) implant. Dr. Grady performed the surgery with the assistance of resident Dr. Jonathan Norton. During the procedure, they removed a screw that had been used to repair the facture Gicla had suffered years before. The head of the screw broke off as the surgeons tried to remove it. Because they lacked an appropriately-sized trephine to hollow out the bone around the screw and facilitate the screw's removal, they were forced to use an osteotome and mallet, which may have resulted in the removal of more bone surrounding the screw than a trephine would have. Also during the surgery, either when the implant was inserted or when the ankle was flexed following the implantation, the lower portion of Gicla's fibula (calf bone), also known as the lateral malleolus, cracked. Such fractures are a known risk of implant surgery. The surgery was otherwise un-eventful.
The implant did not improve Gicla's discomfort, how-ever, and a series of follow-up surgical procedures en-sued. In July 1999, Drs. Grady and Norton removed a bony regrowth from his right ankle and lengthened his Achilles tendon to increase the range of motion in his foot. In August 2000, Dr. Grady removed the implant and the ankle joint was fused. One year after that, much of the remaining hardware in the ankle was removed. The following year, yet another surgery was performed in an effort to salvage the fusion. Still, Gicla continued to experience pain and difficulty using his right leg. Ultimately, in October 2003, Gicla had his right leg amputated eight to ten inches below the knee. The final three surgeries were performed in Milwaukee, where the Giclas had relocated.
Gicla filed this suit in October 2003 complaining of medical malpractice. Gicla alleged that he was too young for the implant procedure performed in 1999 (given the expected life of the implant) and that he was not properly advised of the risks attendant to an ankle replacement. He also alleged that Drs. Grady and Norton made certain mistakes in performing the initial surgery in April 1999 and the follow-up surgery in July which contributed to the failure of the implant to resolve his discomfort, including using the wrong-sized implant, removing too much bone in extracting the broken screw, failing to use bone wax to prevent bone growth in unwanted areas (e.g., the area around the removed screw), fracturing his fibula, failing to stabilize the implant, failing to use a bone stimulator to hasten bone regrowth in desired areas, and damaging or displacing his deltoid ligament during the follow-up surgery.
At trial, Dr. George Vito testified as an expert witness on the government's behalf. Federal Rule of Civil Procedure 26(a)(2)(B) requires the party who proffers an expert to make certain pre-trial disclosures, including, among other things, (i) a statement of the opinions the expert will express, along with the bases and reasons for those opinions, (ii) any data or other information considered by the expert in forming his opinions, and (iii) any exhibits that will be used to summarize or support those opinions. If the initial disclosure is incomplete, or if there is a subsequent addition to or change in the information disclosed, the expert's proponent has an obligation to supplement its disclosure pursuant to Rules 26(a)(2)(D) and 26(e). Rule 37(c)(1) in turn calls for the exclusion of an expert's testimony if the requisite disclosures have not been made, "unless the failure was substantially justified or is harmless." Consistent with Rule 26(a)(2)(B), the government in advance of trial disclosed Dr. Vito's opinions, the rationale for those opinions, and the information he considered in forming them. One source of information that Dr. Vito did not consult in forming his opinions was a series of twenty to thirty x-rays of Gicla's ankle that were taken at various times before and after his implant surgery in April 1999. Rather than reviewing the x-rays himself, Dr. Vito relied on the radiological findings as to what those x-rays revealed. This was known to Gicla's counsel, presumably as a result of both the government's Rule 26 disclosures and follow-up discovery as to Dr. Vito's opinions. Gicla's counsel planned to drive home this point in cross-examining Dr. Vito at trial and to suggest to the court that his opinions should be given less weight than Gicla's own expert, who had examined the x-rays. But when the time came to cross-examine Dr. Vito, Gicla's counsel was surprised to learn from Dr. Vito that he had reviewed the x-rays earlier that day, before he took the witness stand. Tr. 391. Dr. Vito confirmed that he had not looked at the x-rays in forming his opinions prior to trial; his first and only review of the x-rays had taken place earlier that day. Tr. 391-92. Dr. Vito also testified that the x-rays had not altered his views. "My opinion has not changed." Tr. 391. When asked if they had confirmed or aided his analysis, Dr. Vito said that "if anything, they helped me expand upon my testimony right now . . . ." Tr. 392. But Dr. Vito never explained how the x-rays helped him to elaborate on his opinions, as Gicla's counsel elected not to question him further on that subject. Instead, he moved to strike Dr. Vito's testimony altogether.
Gicla's counsel took the position that it was a violation of the government's obligations under Rule 26 for Dr. Vito to testify as an expert when his opinions were now informed by his review of the x-rays, and when his belated review of those x-rays had not been disclosed to Gicla in accordance with the rule. Gicla was prejudiced by the violation, his attorney argued, because counsel had planned Dr. Vito's cross-examination believing that Dr. Vito had rendered his opinions without reviewing the x-rays. Dr. Vito's unexpected disclosure that he had taken a look at the x-rays and that they did not change his opinion blocked the line of attack that Gicla's counsel had intended to pursue and left him unprepared to question Dr. Vito about what he saw or didn't see in the x-rays. Counsel added that he was unable to consult with Gicla's expert (who was not present at the trial) in order to prepare appropriate questions for Dr. Vito now that Dr. Vito had seen the x-rays.
The district court declined to strike Dr. Vito's testimony. The court was critical of the government for having shown Dr. Vito the x-rays on the morning of his testimony. Tr. 397-99. The government obviously had done this to neutralize the anticipated cross-examination of Dr. Vito, Tr. 398, and in the court's view, the government should have shown Dr. Vito the x-rays at an earlier date and disclosed this to the plaintiff, so that Gicla would have had an opportunity to question Dr. Vito before trial as to what the x-rays revealed, Tr. 398-99. But the court saw any violation of Rule 26(a)(2) as harmless. Tr. 396. In response to questions posed by Gicla's counsel, Dr. Vito had admitted that he formed his opinions without reviewing the x-rays; moreover, looking at the x-rays had not changed Dr. Vito's opinions. Tr. 395, 399. Gicla's counsel, in turn, agreed that Dr. Vito's testimony on direct examination did not deviate from the opinions disclosed prior to trial in accordance with Rule 26(a)(2). Tr. 399. The court offered Gicla's attorney a recess so that Gicla could determine what particular x-rays Dr. Vito had reviewed and consider what questions he might like to ask Dr. Vito about them before resuming his cross-examination. Tr. 394, 399-400. The court added that "if you have something else that you want, I'm willing to listen to you." Tr. 396. However, counsel declined the offer, Tr. 400, and instead elected to complete Dr. Vito's cross-examination without delving into the x-rays.
On appeal, Gicla renews his contention that Dr. Vito's belated review of the x-rays, without warning to the plaintiff, was a violation of Rule 26(a)(2) that was prejudicial to his case. He contends that the only proper way to address this violation was to strike Dr. Vito's testimony pursuant to Rule 37(c)(1). In Gicla's view, the exclusion of Dr. Vito's testimony would have so altered the balance of the evidence as to entitle him to judgment.
We review the district court's decision not to exclude Dr. Vito's testimony for abuse of discretion. See, e.g., Jenkins v. Bartlett, 487 F.3d 482, 488 (7th Cir. 2007); Salgado ex rel. Salgado v. Gen. Motors Corp., 150 F.3d 735, 739, 742 (7th Cir. 1998). We find no abuse of discretion in the manner in which the district court handled this issue.
We may assume without deciding that Dr. Vito's eleventh-hour review of the x-rays amounted to a violation of Rule 26 regardless of whether his opinions changed as a result of that review. By requiring the pre-trial disclosure of any expert testimony that a party intends to offer, along with the bases for the expert's opinions, Rule 26 is designed to avoid surprise and give the opposing party a full opportunity to evaluate the expert's methodology and conclusions and to respond appropriately. See Rule 26(a)(2) advisory committee's note, 1993 amendments. Dr. Vito formed his opinions as to the care provided to Gicla without reviewing the x-rays; he instead relied on the radiological reports. This gave Gicla an opening to attack the validity of Dr. Vito's opinions at trial that Gicla's counsel fully intended to exploit. At no time in advance of trial, and certainly not within the time set by the court for Rule 26 disclosures, did the United States disclose an intent to have Dr. Vito review the x-rays before he took the witness stand. Dr. Vito's unannounced review of the x-rays foreclosed to Gicla the line of attack his counsel had ...