United States District Court, S.D. Mississippi, Eastern Division
DR. DEBRA L. WALKER, PLAINTIFFS
TARGET CORPORATION DEFENDANT
STARRETT UNITED STATES DISTRICT JUDGE
reasons below, the Court grants in part and denies in part
Defendant's Motion to Strike and/or Exclude  the
testimony of Plaintiff's expert and treating physician,
Dr. Stephen Lambert. The Court grants the motion as to any
opinion and/or fact testimony not contained in Lambert's
records of Plaintiff's treatment that were produced to
Defendant. The Court denies the motion in all other respects.
argues that Lambert's testimony should be excluded
because Plaintiff failed to provide a summary of the facts
and opinions to which he is expected to testify. Rule 26
requires parties to disclose the identity of any person who
will provide expert testimony at trial. Fed.R.Civ.P.
26(a)(2)(A). “[I]f 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 proponent of the
expert testimony must provide a written report prepared and
signed by the witness. Fed.R.Civ.P. 26(a)(2)(B). But if the
expert witness is not required to provide a written report,
the designation must provide the subject matter of the
expert's testimony, and a summary of the facts and
opinions to which she is expected to testify. Fed.R.Civ.P.
26(a)(2)(C). “A number of courts agree that a treating
physician may testify as a non-retained expert witness - and
therefore need not provide an expert report . . . .”
Kim v. Time Ins. Co., 267 F.R.D. 499, 502 (S.D. Tex.
2008) (collecting cases); see also Fed. R. Civ. P.
26(a)(2)(B). These disclosures must be made and supplemented
in the time and sequence ordered by the Court. Fed.R.Civ.P.
26(a)(2)(D)-(E). A party's failure to do so is
“grounds for prohibiting introduction of that evidence
at trial.” L.U.Civ.R. 26(a)(2).
appears to be undisputed that Plaintiff's initial expert
designations did not provide a summary of the facts and
opinions to which Lambert would testify at trial.
See Exhibit A to Motion to Strike and/or Exclude at
2-3, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP
(S.D.Miss. Apr. 20, 2017), ECF No. 90-1. However, as noted in
the Court's previous order , Plaintiff's counsel
sent Defendant's counsel unsigned supplemental
interrogatory responses on December 20, 2016, and he later
sent a signed copy on the discovery deadline. The
supplemental interrogatory responses contained a summary of
the facts and opinions Lambert intends to provide at trial.
See Exhibit 1 to Response at 8-10, Walker v.
Target Corp., No. 2:16-CV-42-KS-MTP (S.D.Miss. May 17,
2017), ECF No. 104-1.
deciding whether to exclude an expert's testimony, the
Court must consider the prejudice to Defendant if the
testimony is allowed. Hamburger v. State Farm
Mut. Auto. Ins. Co., 361 F.3d 875, 882-83 (5th Cir.
2004). Moreover, Rule 37(c) excepts “harmless”
failures to disclose from its general prescription of
exclusion. Fed.R.Civ.P. 37(c)(1). Here, any failure by
Plaintiff to comply with Rule 26(a)(2)(C) as to Lambert was
harmless insofar as Defendant received a summary of the facts
and opinions Lambert is expected to provide at trial as early
as December 2016. Therefore, wholesale exclusion of
Lambert's testimony would be inappropriate.
Plaintiff's summary explicitly provides that
Lambert's expected testimony is “not limited . . .
to the opinions outlined in his records . . . .”
Exhibit 1 [104-1], at 8. If a treating physician “does
not provide an expert report, his testimony must remain
confined to facts disclosed during care and treatment of the
patient, including his diagnosis, the causation of a
plaintiff's injuries, and the patient's prognosis, as
long as the doctor formed those opinions based on his
personal knowledge and observations obtained during the
course of care and treatment.” Barnett v.
Deere, No. 2:15-CV-2-KS-MTP, 2016 U.S. Dist. LEXIS
123114, at *3 (S.D.Miss. Sept. 11, 2016). “Conversely,
where a treating physician has prepared his opinions in
anticipation of litigation or relies on sources other than
those utilized in treatment, courts have found that the
treating physician acts more like a retained expert and must
comply with Rule 26(a)(2)(B).”
Id. Therefore, if Lambert's expected
testimony - whether fact or opinion - is not in the medical
records produced to Defendant, Plaintiff was required to
produce an expert report in compliance with Rule 26(a)(2)(B).
It is undisputed that Plaintiff has not done so. Therefore,
Lambert's testimony at trial will be limited to matters
within the medical records of his treatment of Plaintiff that
were produced to Defendant.
ORDERED AND ADJUDGED.
 Defendant contends that the unsigned
interrogatory responses should not be considered, but the
Court has already addressed that issue in a previous order
See also Previto v. Ryobi N. Am.,
Inc., No. 1:08-CV-177-HSO-JMR, 2010 U.S. Dist. LEXIS
133344, at *9-*10 (S.D.Miss. Dec. 16, 2010); Cooper v.
Wal-Mart Transp. LLC, No. H-08-0085, 2009 U.S. Dist.
LEXIS 8706, at *3-*4 (S.D. Tex. Feb. 5, 2009); Lee v.
Valdez, No. 3:07-CV-1298-D, 2008 U.S. Dist. LEXIS 70979,
at *9-*10 (N.D. Tex. Sept. 18, 2008); Boudreaux v. J.P.
Morgan Chase & Co., No. 07-555, 2007 U.S. Dist.
LEXIS 86686, at *6-*7 (E.D. La. Nov. 21, 2007); Duke v.
Lowe's Home Ctrs., Inc., No. 1:06-CV-207-P-D, 2007
U.S. Dist. LEXIS 80415, at *3-*4 (N.D. Miss. Oct. 19, 2007);
Robbins v. Ryan's Family Steak Houses E., Inc.,
223 F.R.D. 448, 453 (S.D.Miss. Sept. 16, 2004); Lowery v.
Spa Crafters, Inc., No. SA-03-CA-0073-XR, 2004 U.S.
Dist. LEXIS 16072, at *4-*5 (W.D. Tex. Aug. 16,
The Court declines to go line-by-line
through Plaintiff's designation and Lambert's
treatment records, comparing their contents. It trusts that
counsel, with this ruling in hand, can agree which testimony
from Lambert is admissible. If counsel can not agree, they
should be prepared to present argument at trial as to each
specific, enumerated piece of opinion and/or fact testimony