United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge.
19, 2017, Defendant filed her Motion to Exclude Expert
Testimony asking the Court to exclude expert testimony from
certain healthcare providers that Plaintiff designated as
experts because Plaintiff has failed to properly disclose
summaries of fact and opinion as required by Fed.R.Civ.P.
26(a)(2). On June 30, 2017, Plaintiff filed his response in
opposition to Defendant's instant motion. The instant
motion became ripe on July 7, 2017, when Defendant filed her
reply brief. The undersigned retains jurisdiction over this
case based on the parties' consent and 28 U.S.C. §
636(c). For the reasons discussed below, the Court issues the
following Opinion and Order denying without prejudice
Defendant's motion to exclude expert testimony.
personal injury action arises from a car accident on August
30, 2014, in which Defendant rear-ended Plaintiff. Plaintiff
alleges that Defendant's negligence resulted in injuries,
including a herniated disc in his neck. After the accident,
Plaintiff treated with multiple doctors. His primary care
doctor, Dr. Charles Higgs-Couthard, referred him to physical
therapy and a neurologist, Dr. George DePhillips, who
diagnosed the herniated disc. Upon Dr. DePhillips's
departure from the neurology practice, Dr. Neal Patel took
over as Plaintiff's neurologist. Dr. Patel performed a
cervical fusion surgery.
24, 2017, Plaintiff submitted his expert
disclosures to Defendant. Plaintiff disclosed thirteen
treatment providers as expert witnesses, but did not submit
any written reports prepared or signed by the experts.
Through his disclosures, Plaintiff described the subject of
eleven doctors' testimony as “the diagnosis,
causation, treatment, and prognosis of Plaintiff's
injuries.” [DE 14-1 at 1-3]. For two of the
doctors, Plaintiff disclosed the subject of their testimony
as “Plaintiff's injuries, causation of injuries,
treatment of injuries.” [Id. at 3]. Plaintiff
attached the sworn statements of Dr. Higgs-Couthard
[Id. at 5-8], Dr. DePhillips [Id. at
117-25], and Dr. Patel [Id. at 76-80] to his
disclosures. Plaintiff also attached curriculum vita for Dr.
Patel [Id. at 85-88] and Dr. DePhillips
[Id. at 158-59]. For all thirteen doctors, Plaintiff
noted that “[m]edical reports have been previously
provided.” [Id. at 1-3].
instant motion, Defendant alleges that Plaintiff's
disclosures do not satisfy his Rule 26(a)(2) obligations.
Specifically, Defendant contends that Plaintiff has failed to
provide (1) summaries of the facts or opinions anticipated in
testimony from ten of the disclosed healthcare
providers, and (2) full expert reports from Dr.
Higgs-Couthard, Dr. DePhillips, and Dr. Patel (collectively
the “Three Physicians”), all of whom Defendant
alleges are expected to testify on matters beyond their
opposition, Plaintiff argues that he has fulfilled his Rule
26(a)(2) expert disclosure and report obligations. First,
Plaintiff argues that he has not retained any experts to
testify about medical causation and that any of the
physicians' opinions about causation were made in the
course of treating Plaintiff. Second, Plaintiff contends that
the he timely and adequately summarized the testimony of each
treating physician in his disclosure. Third, Plaintiff
contends that his production of medical records from all the
disclosed physicians constitute the required summary of facts
and opinions. Lastly, Plaintiff argues that even if the Three
Physicians are deemed retained experts, their sworn
statements serve the same purpose as Rule 26(a)(2)(B) written
reports because they report the doctors' opinions, their
reasons for those opinions, the data and facts behind those
opinions, and the medical records considered in reaching
those opinions. In addition, Plaintiff contends that he has
provided information on the Three Physicians'
qualifications, history of expert testimony, and compensation
in this case.
Rules of Civil Procedure 26(a)(2) governs the disclosure
of expert testimony and provides:
(A) In General. In addition to the disclosures
required by Rule 26(a)(1), a party must disclose to the other
parties the identity of any witness it may use at trial to
present evidence under Federal Rule of Evidence 702, 703, or
(B) Witnesses Who Must Provide a Written Report.
Unless otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report- prepared
and signed by the witness-if the witness is one retained or
specially employed to provide expert testimony in the case or
one whose duties as the party's employee regularly
involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in ...