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Guthrie v. Hochstetler

United States District Court, N.D. Indiana, South Bend Division

October 20, 2017

GREG GUTHRIE, Plaintiff,


          Michael G. Gotsch, Sr. United States Magistrate Judge.

         On June 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.

         I. Relevant Background

         This 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.

         On May 24, 2017[1], 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].

         In the 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[2], 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 treatment-related observations.

         In 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.

         II. Analysis

         A. Legal Standard

         Federal 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 705.
(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 them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in ...

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