United States District Court, N.D. Mississippi, Oxford Division
CARROL D. ROBERSON PLAINTIFF
MCDONALD TRANSIT ASSOCIATES, INC., et al. DEFENDANT S
ORDER LIMITING TESTIMONY OF PLAINTIFF'S
PERCY UNITED STATES MAGISTRATE JUDGE
have objected to any witness that plaintiff will attempt to
call as an expert witness at trial asserting that plaintiff
has failed to properly designate any expert witnesses. Docket
64. Defendants raised their objection to doctors Michael
Muhlbauer, James Walker and Thomas L. Windham at the final
pretrial conference. The undersigned directed the parties to
file information supporting their respective positions. The
parties have done so, and the court is prepared to rule.
are concerned with the labeling of these three treating
physicians as experts because plaintiff failed to comply with
the rules for the disclosure of witnesses and the designation
of experts in accordance with Federal Rule of Civil Procedure
26 and Local Uniform Civil Rule 26. In his response (Docket
65), plaintiff concedes that Drs. Walker and Windham are fact
witnesses, but provides the Initial Disclosure that
identified Dr. Muhlbauer as a witness and the nature of his
Civ. P. 26(a)(1)(A) dictates that:
a party must, without awaiting a discovery request, provide
to the other parties:
(i) the name, and if known, the address and telephone number
of each individual likely to have discoverable information -
along with the subjects of that information - that the
disclosing party may use to support its claims or defenses .
(ii) a copy - or a description by category and location - of
all documents, electronically stored information, and
tangible things that the disclosing party has in its
possession, custody, or control and may use to support is
claims or defenses . . . .
disclosures must be made within 14 days after the
parties' Rule 26(f) conference pursuant to Fed.R.Civ.P.
26(a)(1)(C) and the party must supplement its disclosure
“in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or
incorrect . . .” as required by Fed.R.Civ.P. 26(e).
“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 a trial, unless the failure
was substantially justified or is harmless.”
Fed.R.Civ.P. 37(c). The purpose of these disclosure
requirements is to “eliminate unfair surprise to the
opposing party.” Hill v. Koppers
Indus., 2009 U.S. Dist. LEXIS 98798, at *38
(N.D.Miss. Sept. 30, 2009); citing Muldrow ex rel. Estate
of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 167 (D.C.
addition to initial disclosures, Fed.R.Civ.P. 26(a)(2)
requires a party to disclose the identity of any expert
witness it may use at trial and provide a written, signed
report. Local Uniform Civil Rule 26(a)(2) requires that
[a] party must make full and complete [expert] disclosure as
required by Fed.R.Civ.P. 26(a)(2) and L.U.Civ.R. 26(a)(2)(D)
no alter than the time specified in the case management
order. Absent a finding of just cause, failure to make full
expert disclosures by the expert designation deadline is
grounds for prohibiting introduction of that evidence at
trial. . . .
(D) A party must designate physicians and other witnesses who
are not retained or specially employed to provide expert
testimony but who are expected to be called to offer expert
opinions at trial. No written report is required from such
witnesses, but the party must disclose the subject matter on
which the witness is expected to present evidence under
Fed.R.Evid. 207, 203 or 205, and a summary of the facts and
opinions to which the witness is expected to testify. The
party must also supplement initial disclosures.
treating physician not designated as an expert, but properly
identified as a witness, may testify as a treating physician,
but his/her testimony is limited to those facts and opinions
contained in the plaintiff's medical records. Doss v.
NPC Int'l, 2010 U.S. Dist. LEXIS 85583 (N.D.Miss.
July 20, 2010)(limiting testimony of treating physician
because designation of physician as expert failed to comply
with requirements of L.U.Civ.R. 26); citing Duke v.
Lowe's Home Centers, 2007 U.S. Dist. LEXIS 80415
(N.D. Miss. Oct. 19, 2007)(“concluding that without
expert report, treating physician's testimony was
‘limited to those facts and opinions contained in [the]
instant case, defendants do not dispute that they were aware
of the treatment received by plaintiff from the three
physicians at issue: Dr. Michael Muhlbauer, Dr. James Walker
and Dr. Thomas L. Windham. During the pendency of this
litigation or prior related litigation, in which plaintiff
complained of - among other things - the injury that is the
subject of this litigation, plaintiff has produced to
defendant his treatment records from these three physicians.
Because plaintiff intends to call Drs. Walker and Windham
only as fact witnesses and they have properly been identified
as witnesses with knowledge of plaintiff's physical
condition, the issue of their testimony is moot.
undersigned has reviewed the plaintiff's Initial
Disclosure containing the designation of Dr. Muhlbauer and
concludes that it sufficiently put defendants on notice that
plaintiff intended to call him as an expert witness. This
Initial Disclosure was made by the plaintiff to counsel for
the defendants in the prior related case of Carrol D.
Roberson v. McDonald Transit Associates, Inc., et al.,
Cause No. 3:14-cv-168, in which the plaintiff complained of -
among other things - the injury that is the subject of this
litigation. Defendants cannot claim any unfair surprise as
plaintiff indicated that Dr. Muhlbauer would “give
testimony on the history of Roberson's spinal and lumbar
problems, spinal blocks, and two recent surgeries. Also, Dr.
Muhlbauer will elaborate on the fragile condition of
Roberson's spinal and lumbar region and probability that
certain injuries created a medical condition necessitating
surgery.” Docket 65, Exhibit 1, p. 6. Given that
plaintiff is pro se and is given more leniency than a
represented party, defendants' objection ...