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|AVMLA Case Summary & Review
| The Legal Perspective
Abandoned Pet Notice Requirements for Veterinary Practices
By: Frank C. Muggia, Partner,
Pet Rays & Horizon Radiology, LLP, v.
LogicRad, Inc. & VDIC, Inc.
Though highly regulated, and sometimes illegal, the lure to take kickbacks can seem insurmountable. As a prominent case points out, the practice can have several repercussions on a veterinarian's business, relationships and reputation. In a recent proceeding out of the Southern District of Texas, plaintiffs PetRays, LP ("PetRays") and Horizon Radiology, LLP ("Horizon") brought serious allegations against defendants LogicRad, Inc. ("LogicRad") and VDIC, Inc. ("VDIC"). The complaint focuses on the Radiographic Digital Converter (RDC), a machine which takes several high-resolution photographs of an X-Ray image in digital form. The images can then be uploaded to providers of veterinary telemedicine services. Because some alternatives to the RDC are much more costly and inefficient, it is one of the most widely used radiograph devices in the veterinary industry.
Defendant VDIC is one of the few providers of veterinary telemedicine in the United States, a process highly used by smaller medical practices. As part of its telemedicine service, VDIC produces and sells VetMedStat software. When defendant LogicRad, a wholly owned subsidiary of VDIC, bought the RDC technology, LogicRad began loading all RDCs with VetMedStat software and allegedly offering "kickbacks" to distributors who referred veterinarians to VDIC consultants.
| Case Law Summary
By: John Scott, DVM, JD, Scott Veterinary Services
Have an interest in a specific case? Please contact directly at:
DEFENDANT OBJECTS TO PLAINTIFF'S THIRD SUPPLEMENTAL
DISCLOSURE OF EXPERT TESTIMONY AS BEING UNTIMELY FILED.
Bilbrey v. Holder, 2016 WL 5118644 (D. Tex, 2016)
BASIS OF THE COMPLAINT:
Plaintiff, Mr. Bilbrey filed suit against Dr. Troy Holder alleging that Dr. Holder's treatment,
colonic surgery, and follow-up care of Bilbrey's horse, was negligent and the proximate cause of the
horse's death. Dr. Holder noticed and took the deposition of Dr. Lane Easter, Bilbrey's expert
witness. Holder objected to Bilbrey's Third Supplemental Disclosure of Expert Testimony as being
untimely filed and filed his Motion to Strike Plaintiff's Third Supplemental Disclosure of Expert
April 22, 2015 - Bilbrey filed suit against Dr. Holder.
May 26, 2016 - Dr. Holder noticed an took the deposition of Dr. Easter, Bilbrey's expert witness. During his discussion of the surgery, Dr. Easter stated that the "only opposed surfaces in a suture line are going to be serosa."
June 30, 2016 - Dr. Easter sent Bilbrey's counsel a supplemental report to clarify this portion of his deposition. The supplemental report described the four layers of a horse's colonic wall and stated that "the serosa is a very thin and easily damaged and removed layer of the intestine." He further clarified that if the serosal layers were removed due to intense cleaning, the opposing layers
in a suture line would be the muscularis layers, not the serosal layers as he stated in his deposition."
July 13, 2016 - Dr. Easter completed the "changes and signature page" of his deposition transcript using the text of the supplemental report and submitted it to the court reporter. The discovery deadline was July 15, 2016.
July 27, 2016 - Bilbrey filed his Third Supplemental Disclosure of Expert Testimony disclosing Dr. Easter's June 30, 2016 supplemental report.
July 28, 2016 - Dr. Holder filed a Motion to Strike Plaintiff's Third Supplemental Disclosure of Expert Testimony.
August 12, 2016 - Bilbrey filed a Response in Opposition to Defendant's Motion to Strike Plaintiff's Third Supplemental Disclosure of Expert Testimony. Pretrial disclosures were due on
August 22, 2016.
A party who has made a disclosure under Rule 26(a) must supplement or correct its
disclosure in a timely manner if the party learns that in some material respect the disclosure is
incomplete or incorrect. For an expert witness this duty to disclose extends to both the information
included in the report and the information included during the deposition. Here Dr. Easter made
clarifications to his testimony regarding seven lines in his deposition transcript. These clarifications
to the opinions expressed by Dr. Easter's deposition are subject to a duty of supplemental disclosure
under Federal Rule 26(e)(2). Bilbrey timely disclosed these clarifications of July 27, 2016 before
the pretrial disclosures were due on August 22, 2016.
DECISION OF THE COURT:
Dr. Holder's Motion to Strike Plaintiff's Third Supplemental Disclosure of Expert Testimony
is hereby denied.
|Dale v. Equine Sports Medicine and Surgery Race Horse Service
OWNER OF A HORSE WHO DEVELOPED INFECTION IN A JOINT FOLLOWING SURGERY BY A VETERINARIAN AND WAS EUTHANIZED FOLLOWING UNSUCCESSFUL TREATMENT OF THE INFECTION APPEALED
THE DECISION OF THE TRIAL COURT TO DENY THEIR MOTION TO VOLUNTARILY DISMISS.
Dale v. Equine Sports Medicine and Surgery Race Horse Service,
(2018 WL 4334143 - Unpublished opinion U.S. Ct. App. 5th Cir)
BASIS OF THE COMPLAINT:
A racehorse purchased for $19,000 by Dale sustained an injury during racing season that
created bone chips in one of her joints. Following surgery to remove the bone chips the horse
was transported to a facility of Equine Sports Medicine and Surgery Race Horse Service (ESMS)
located in New Mexico for rehabilitation. A year later the horse developed an infection in the
joint and treatment was continued at ESMS. The horse was later transferred to an ESMS facility
in Weatherford, Texas where her condition significantly deteriorated and she was eventually
Dale filed suit in the Northern District of Texas alleging that veterinarians associated with
ESMS committed veterinary malpractice and seeking damages for the value of the horse. Dale
later sought to transfer venue to the District of New Mexico. The district court denied the motion
because the reasons for transfer were unpersuasive and it appeared that a transfer would only
merely shift inconvenience fr one side to the other. Dale then sought to voluntarily dismiss their
case in the Northern District of Texas without prejudice. The district court denied the motion
because Dale had not offered to pay ESMS's attorneys' fees. Dale filed a motion for
reconsideration and indicated a willingness to pay ESMS' reasonable attorneys' fees. The
motion was again denied and the case was set for trial.
(After protracted legal wrangling which will not be detailed here, but is evidenced by the
grounds for appeal listed below, the district court dismissed Dale's case for failure to prosecute
and entered judgement in favor of ESMS.) Dale timely appealed: (I) the order denying Dale's
motion to transfer the case; (ii) the order denying Dale's motion to voluntarily dismiss without
prejudice; (iii) the order denying reconsideration of the motion to dismiss; (iv) the granting of
leave to designate experts and disclose expert reports out of time and contrary to earlier court
orders; (v) the denial of the joint motion for continuance; (vi) the setting of certain deadlines;
(vii) the refusal of the court to allow objection or record development as to evidentiary rulings;
(viii) the failure of the court to address alleged witness intimidation; (ix) the issuance of a
mistrial; and, (x) the failure to reset trial due to the unavailability of Dale's counsel and Dale's
subsequent medical emergency.
DISCUSSION BY THE COURT:
Dale's Motion to Transfer Venue:
After oral argument and review of the parties' briefs and the record, the court did not
believe that the district court abused its discretion in denying Dale's motion to transfer the case
to the District of New Mexico since a motion to transfer venue is addressed to the discretion of
the trial court and will not be reversed on appeal absent an abuse of discretion.
Motion to Voluntarily Dismiss:
Motions for voluntary dismissal should be freely granted unless the non-moving party
will suffer some plain legal prejudices other than the mere prospect of a second lawsuit. In ruling
on a motion for voluntary dismissal, the district court can impose certain conditions , but only
those conditions which will alleviate any harm caused to the defendant.
Here, the district court held that payment of ESMS's attorneys was a reasonable condition
of dismissal and denied Dale's motion because, in their briefing, Dale did not agree to that
condition. Assuming arguendo that the district court did not abuse its discretion in requiring the
payment of ESMS's attorneys' fees, the court did abuse its discretion in refusing to reconsider,
without explanation, its order denying the motion once Dale agreed to the only with the motion
the district identified. Because the payment of attorneys' fees was the sole basis for the district
court's denial of voluntary dismissal and Dale subsequently made clear that he would pay those
fees, the district court abused its discretion by denying Dale the ability to voluntarily dismiss his
DECISION OF THE COURT:
For the foregoing reasons, the court vacated the district court's judgment dismissing the
case with prejudice and remanded to the district court with instructions to dismiss Plaintiffs' case
(F.N. 3) The district court issued the remainder of the rulings that Plaintiffs appeal after
denying reconsideration of Plaintiffs' motion to dismiss. Because we conclude that the decision
to deny reconsideration of Plaintiffs' motion to voluntarily dismiss was error and we remand for
dismissal without prejudice, we do not address the other issues on appeal.
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