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Walker v. Target Corp.

United States District Court, S.D. Mississippi, Eastern Division

July 6, 2017




         For the reasons below, the Court grants in part, denies in part, and defers ruling in part on Defendant's Motion to Exclude [88] 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 Defendant.
• 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 [85] 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 Rule 37.

         I. Background

         This is 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 [88] certain opinions of Plaintiffs' medical experts, which the Court now addresses.

         II. Discussion

         A. Treating Physicians

         First, 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).

         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).

         But 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.[1] 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).

         All 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 following factors:

(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 continuance; and
(4) the explanation, if any, for the party's failure to comply with ...

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