United States District Court, S.D. Mississippi, Eastern Division
DR. DEBRA L. WALKER, PLAINTIFFS
TARGET CORPORATION DEFENDANT
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
reasons below, the Court grants in part, denies in part, and
defers ruling in part on Defendant's Motion to Exclude
 certain testimony by Plaintiffs' proposed medical
expert witnesses. Specifically:
• Geralyn Datz, Jay Antinnes, Jennifer Stewart, Thomas
Baylis, David Stout, and Todd Stitzman may not testify as
experts, but they may testify as fact witnesses, without
expressing any opinions or other testimony informed by or
based on their specialized or technical experience,
knowledge, or training.
• Stephen Lambert, Jeffrey Burns, and David Lee may
testify as experts, but they may only offer fact or opinion
testimony that is contained within the medical records of
their treatment of Mrs. Walker that were produced to
• The Court will address Plaintiffs' experts'
proposed testimony as to the dorsal column stimulator and
radiofrequency ablation when it addresses Defendant's
Motion for Partial Summary Judgment  as to damages.
• The responses to Lacy Sapp's questionnaire
provided by Todd Stitzman, Jennifer Stewart, and Stephen
Lambert are excluded pursuant to Rule 37.
• The affidavit of David Lee is excluded pursuant to
a slip-and-fall case. Plaintiff Debra Walker slipped in a
puddle of water while shopping at Target in Hattiesburg,
Mississippi. She claims that the fall caused her to sustain
permanently disabling injuries. Her husband claims a loss of
consortium. They demanded a wide variety of damages.
Defendant filed a Motion to Exclude  certain opinions of
Plaintiffs' medical experts, which the Court now
Defendant argues that Plaintiffs failed to properly disclose
the expected testimony of Mrs. Walker's treating
physicians, and that their testimony should be limited to
matters contained in the medical records. The Court already
addressed this topic with respect to Dr. Stephen Lambert.
Walker v. Target Corp., No. 2:16-CV-42-KS-MTP, 2017
U.S. Dist. LEXIS 95346 (S.D.Miss. June 21, 2017).
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).
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 a treating
physician's expected testimony - whether fact or opinion
- is not in the medical records from his or her treatment of
the plaintiff, the plaintiff is required to produce an expert
report in compliance with Rule 26(a)(2)(B).
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 properly disclose an expected
expert's testimony is “grounds for prohibiting
introduction of that evidence at trial.” L.U.Civ.R.
26(a)(2). Additionally, Rule 37 provides: “If a party
fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a
motion, at a hearing, or at trial, unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
37(c)(1). When determining whether to strike an expert's
testimony for a party's failure to properly and timely
disclose required information, the Court considers the
(1) the importance of the witnesses' testimony;
(2) the prejudice to the opposing party of allowing the
witnesses to testify;
(3) the possibility of curing such prejudice by a
(4) the explanation, if any, for the party's failure to
comply with ...