United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANTS' MOTION TO BAR PLAINTIFFS' EXPERT WITNESSES
RICHARD L. YOUNG, Chief District Judge.
Plaintiffs, Matthew and Bobbie Slabaugh, brought a products liability and negligence action against Defendants, LG Electronics USA, Inc. and LG Electronics, Inc. (collectively "LG"), for damages resulting from a defective washing machine. LG now moves to bar several of Plaintiffs' expert witnesses from testifying in this matter on grounds that Plaintiffs failed to comply with the expert disclosure requirements set forth in Federal Rule of Civil Procedure 26(a)(2). For the reasons set forth below, LG's Motion to Bar Plaintiffs' Expert Witnesses (Filing No. 185) is DENIED.
In 2011, defective components in Plaintiffs' LG brand washing machine caused it to turn itself on and flood the first floor of Plaintiffs' home. In addition to damage to the home, Plaintiffs allege that the resulting mold damage has harmed their health. (Filing No. 85 at 22-25). Plaintiffs filed suit in state court in June 2012, and the case was removed to this court in July 2012. Plaintiffs served their Second Expert Disclosure list (Filing No. 185-1) on June 2, 2014, the deadline for disclosing any expert witness relating to damages issues. ( See Filing No. 154 at 1). Plaintiffs identify four treating physicians, Dr. Eric Knoll, Dr. Tolly Epstein, Dr. Jeffrey Whitaker, and Dr. Larry Buckel, as non-retained expert witnesses who may testify to the environmental effects of the mold on Plaintiffs' health. ( See Filing No. 185-1 at 3-4). The disclosures include summary reports for each physician, containing the subject matter and brief statements of the general facts to which each witness will testify. ( See id. ). Plaintiffs also disclosed Kevin Potter, a professional engineer, to testify to the water-related damage caused to Plaintiffs' home, and Steve Huston, Plaintiffs' contractor, to testify to the cost of water and mold remediation. ( Id. at 2-3). On July 14, 2014, approximately two months prior to the deadline for moving to exclude expert witnesses and just one day before a scheduled settlement conference, LG moved to bar the experts from testifying.
LG argues that Plaintiffs failed to comply with the disclosure requirements set forth in Rule 26(a)(2) and thus the court should bar the witnesses from testifying pursuant to Rule 37(c). (Filing No. 185 at 1). Plaintiffs deny any noncompliance with Rule 26. They further argue that, in violation of Local Rule 37-1, LG's counsel failed to confer in good faith with Plaintiffs' counsel to resolve any dispute concerning expert disclosures. Accordingly, Plaintiffs argue, even if their disclosures were deficient, LG's noncompliance with Local Rule 37-1 renders sanctions against Plaintiffs inappropriate. (Filing No. 192 at 7-8).
A. Rule 26(a)(2) Disclosures of Treating Physicians
LG first argues that to the extent the treating physicians intend to provide expert opinion testimony, such as opinions on causation, the court should prohibit such testimony because Plaintiffs failed to provide written reports as required under Rule 26(a)(2)(B). In the alternative, they argue that even if a written report is not required, Plaintiffs' disclosures fail to comply with the written summary requirement under Rule 26(a)(2)(C).
A party must disclose the identity of any expert witness it intends to use at trial. Fed.R.Civ.P. 26(a)(2)(A). That disclosure must include a full written report "if the witness is one retained or specially employed to provide expert testimony in the case...." Fed.R.Civ.P. 26(a)(2)(B). The 2010 Amendment to Rule 26 added 26(a)(2)(C), instructing that non-retained witnesses who happen to be experts must provide summary disclosures. A summary disclosure must state the subject matter of the expected evidence and a summary of the facts and opinions to which the witness will testify. Fed.R.Civ.P. 26(a)(2)(C). Whether an expert must provide a complete report under 26(a)(2)(B) or a less extensive summary under 26(a)(2)(C) depends on the expert's relationship to the issues involved in the litigation. See Malibu Media, LLC v. Harrison, No. 1:12-cv-01117, 2014 WL 6474065, at *2 (S.D. Ind. Nov. 19, 2014) (citing Downey v. Bob's Disc. Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011)). Treating physicians, for example, often have firsthand knowledge of the events giving rise to the litigation and typically are not "retained or specially employed to provide testimony." Id. In such cases, the treating physician need only provide a 26(a)(2)(C) summary disclosure so long as the testimony does not exceed the scope of observations made during treatment. Id.; see also Brunswick v. Menard, Inc., No. 2:11 CV 247, 2013 WL 5291965, at *3-4 (N.D. Ind. Sept. 19, 2013) (explaining that under the amended Rule 26, any physician who intends to testify must submit, at the very least, a summary report; and whether such testimony calls for a full expert report depends on the breadth of the testimony); accord Crabbs v. Wal-Mart Stores, Inc., No. 4:09-cv-00519-RAW, 2011 WL 499141, at *3 (S.D. Iowa Feb. 4, 2011) (recognizing that amendments to Rule 26 supersede prior cases requiring full expert reports from non-retained experts who intend to present opinion testimony).
Likewise, a treating physician disclosed under 26(a)(2)(C) may provide causation testimony if he or she formed such opinions during the course of treatment. See EEOC v. AutoZone, Inc., 707 F.3d 824, 833 (7th Cir. 2013) (citing the holding in Meyers v. Nat'l R.R. Passenger Corp., 619 F.3d 729, 734-35 (7th Cir. 2010)); see also Brunswick v. Menard, Inc., No. 2:11 CV 247, 2013 WL 5291965, at *3-4 (N.D. Ind. Sept. 19, 2013). In Meyers, the Court of Appeals for the Seventh Circuit held:
[A] treating physician who is offered to provide expert testimony as to the cause of the plaintiff's injury, but who did not make that determination in the course of providing treatment, should be deemed to be one "retained or specially employed to provide expert testimony in the case, " and thus is required to submit an expert report in accordance with Rule 26(a)(2).
619 F.3d at 734-35 (emphasis added). Although Meyers preceded the 2010 Amendment, the summary disclosure mandate of 26(a)(2)(C) creates a minimum requirement for nonretained experts and thus does not disturb the holding in Meyers. See Brunswick, 2013 WL 5291965, at *4 (explaining the purpose of the amendment). Therefore, the scope of treatment provided by Plaintiffs' treating physicians governs the extent to which they may testify on issues of causation, not whether they intend to provide opinion testimony. Because the court has no information on the nature of treatment the treating physicians provided vis-à-vis their expected testimony, it cannot determine whether any opinions concerning causation were formed during the course of treatment. Incidentally, LG does not argue that the treating physicians propose to testify outside their respective scopes of treatment provided to Plaintiffs.
The court now turns to the adequacy of Plaintiffs' disclosures under 26(a)(2)(C). As noted above, a summary disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of ...