United States District Court, N.D. Mississippi, Oxford Division
ORDER DENYING MOTION TO EXCLUDE HANNA M. MITIAS,
PERCY, UNITED STATES MAGISTRATE JUDGE.
Stephen Houseworth, M.D. (“Defendant”) has moved
to exclude Dr. Hanna M. Mitias as an expert witness in this
case under Federal Rule of Civil Procedure 37. Docket 36.
Defendant argues that Plaintiff Suzanne Lindsay's failure
to comply with Federal Rule of Civil Procedure 26(a)(2)(B)
when disclosing Dr. Mitias should result in Dr. Mitias being
excluded from offering expert testimony in this matter.
January 3, 2017, Plaintiff served her “Disclosure of
Expert Testimony” under Federal Rule of Civil Procedure
26(a)(2), designating Dr. Mitias as an “unretained
expert witness who may testify to opinions within the realm
of his expertise.” Docket 37-1. Defendant argues that
Plaintiff's disclosure of Dr. Mitias under Rule
26(a)(2)(C) is “deficient and improper” because
Dr. Mitias plans to offer expert opinions not formed during
his care and treatment of Plaintiff - specifically opinions
regarding standard of care related to Dr. Houseworth's
treatment. Docket 37 at 3. Defendant maintains that Dr.
Mitias' opinions regarding Dr. Houseworth's treatment
are subject to the reporting requirement of Rule 26(a)(2)(B),
and Plaintiff's failure to designate Dr. Mitias under
this provision should preclude his ability to testify in this
matter. Id. at 7-8.
counters that Dr. Mitias was not retained or specially
employed to provide expert testimony in this case and,
therefore, is “exempt from the Rule 26(a)(2)(B) report
requirement.” Docket 38 at 2. Alternatively, Plaintiff
argues that her disclosure satisfies Rule 26(a)(2)(B)'s
requirements including “1) a complete statement of all
opinions the witness will express and the basis and reasons
for them […]; 2) the facts and data considered by the
witness in forming these opinions […]; 3) any exhibits
that will be used to summarize or support these opinions
[…]; 4) Dr. Mitias' education and other
qualifications enabling him to offer his opinions in this
cause […]; 5) a listing of the other cases in which,
during the previous 4 years, Dr. Mitias has testified as an
expert at trial or by deposition […]; and 6) a
statement as to his compensation to be paid for the study and
testimony in the case.” Id. at 5-6. For these
reasons, Plaintiff maintains that Defendant will not be
prejudiced by Dr. Mitias' testimony. Id. at 6.
Rule of Civil Procedure 26(a)(2)(A)'s designation
requirement applies to all testifying experts. Hamburger
v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 882
(5th Cir. 2004). Rule 26(a)(2)(B)'s report requirement
specifically applies to expert witnesses. Id.
“A treating physician may testify as a non-retained
expert witness-and therefore need not provide an expert
report…” Walker v. Target Corp., 2017
WL 2903253, at *1 (S.D.Miss. July 6, 2017) (quoting Kim
v. Time Ins. Co., 267 F.R.D. 499, 502 (S.D. Tex. 2008).
However, if an expert report is not provided, the treating
physician's testimony is “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.” Id. (quoting Barnett v. Deere
& Co., 2016 WL 4735312, at *1 (S.D.Miss. Sept. 11,
2016). “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. at
support of Dr. Mitias' classification as a non-retained
expert under Rule 26(a)(2)(C), Plaintiff points out that Dr.
Houseworth performed Plaintiff's surgery while on the
staff of Dr. Mitias' clinic on one of Dr. Mitias'
long-standing patients whose medical history and complaints
were well-known to Dr. Mitias. Docket 38 at 4. Plaintiff
points to Dr. Mitias' “personal knowledge,
independent of this litigation” regarding Dr.
Houseworth's treatment. Id.
as Defendant argues, the Court finds that Dr. Mitias'
opinions regarding the standard of care related to Dr.
Houseworth's treatment exceed the scope of what Dr.
Mitias “learned through actual treatment and from the
plaintiff's records up to and including that
treatment.” Kim v. Time Ins. Co., 267 F.R.D.
499, 503 (S.D. Tex. 2008). Despite having “a direct
interest in remaining informed as to the treatment
administered by … Dr. Houseworth, ” Dr.
Mitias' opinions go beyond his own personal treatment of
Plaintiff. Docket 38 at 4. Even though he may not be
compensated monetarily for his testimony in this case so as
to be considered “retained, ” because Dr.
Mitias's expected testimony goes beyond matters
pertaining to his own treatment of Plaintiff and extends to
the standard of care and its alleged breach by another
physician based upon facts outside Dr. Mitias's personal
knowledge, the Court considers Dr. Mitias to be
“specially employed” to provide expert testimony.
As such Rule 26(a)(2)(B) required the submission of a written
report prepared and signed by Dr. Mitias. Having determined
there was a discovery violation, the court turns to whether
Dr. Mitias's testimony beyond matters pertaining to his
own treatment of Plaintiff should be excluded as a result.
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). According to the Advisory Committee Note to Rule 37,
this sanction provides “a strong inducement for
disclosure of material that the disclosing party would expect
to use as evidence, whether at a trial, at a hearing, or on a
motion, ” by the deadline. Specifically, the purpose of
Rule 26(a)(2) is to “eliminate unfair surprise to the
opposing party.” Hill v. Koppers Indus., 2009
WL 3246630, at *2 (N.D. Miss. Sept. 30, 2009) (citing
Muldrow ex rel. Estate of Muldrow v. Re-Direct,
Inc., 493 F.3d 160, 167 (D.C. Cir. 2007)).
party has failed to properly and timely designate an expert
witness, the Court evaluates four factors to determine
whether to exclude the testimony. Hamburger v. State Farm
Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004).
The Court considers (1) the explanation for the failure to
identify the witness; (2) the importance of the testimony;
(3) potential prejudice in allowing the testimony; and (4)
the availability of a continuance to cure such prejudice.
Id. (citing Geiserman v. MacDonald, 893
F.2d 787, 791 (5th Cir.1990)).
support of the first factor, Defendant states that
“Plaintiff has no satisfactory explanation for her
failure to properly disclose Dr. Mitias.” Docket 37 at
8. However, Plaintiff explains at length her reasoning for
her belief that Dr. Mitias was exempt from Rule
26(a)(2)(B)'s report requirement and further explains her
decision to provide “an expansive and detailed
disclosure” that comports with Rule 26(a)(2)(B). Docket
38 at 5. The Court finds that Plaintiff's explanation
weights in favor of denying Defendant's motion to exclude
Dr. Mitias. Similarly, the Court finds that Plaintiff has
sufficiently demonstrated the importance of Dr. Mitias'
testimony regarding not only his own treatment of Plaintiff
but also the standard of care employed by Defendant and the
alleged breach thereof.
the third factor, the Court finds that Defendant is not
significantly prejudiced by Plaintiff's failure to
provide a report under Rule 26(a)(2)(B). As noted above,
Plaintiff's disclosure was expansive and detailed,
providing Defendant with “the essential reporting
requirements under Rule 26(a)(2)(B).” Docket 38 at 5.
Additionally, the Affidavit of Dr. Hanna M. Mitias, M.D.
(Docket 50-1), signed under oath by Dr. Mitias and submitted
in support of Plaintiff's response to Defendant's
motion for summary judgment, mirrors Plaintiff's
Disclosure of Expert Testimony (Docket 37-1).
Court is unconvinced that “Dr. Houseworth is unaware of
the basis or scope of Dr. Mitias' testimony” or
“knows nothing of Dr. Mitias' qualifications and
publications he has authored in the previous ten years,
” the “cases in the previous four years in which
he has testified as an expert at trial or deposition, ”
or “the compensation [he] is being paid … to
testify … in this matter.” Docket 37 at 9.
Although filed subsequent to the instant motion, Dr.
Mitias' sworn affidavit speaks to each of these issues,
as does Plaintiff's previous Disclosure of Expert
Testimony. Defendant cannot show that he is unfairly
surprised by the nature and scope of Dr. Mitias'
anticipated testimony. Finally, as to the possibility of a
continuance, the parties informed the undersigned that
Defendant will depose Dr. Mitias in advance of trial. The
Court finds that a continuance is not necessary.
Court finds that on the whole, the Hamburger factors
weigh in favor of allowing Dr. Mitias to testify. For the
reasons discussed above, Dr. Stephen W. Houseworth's
Motion to Exclude Hanna M. Mitias, M.D. is
DENIED. The Motion to Exclude Hanna M.
Mitias will be removed from the list of pending motions
contained in the Pretrial Order. Additionally, the first
contested issue of law, “whether Dr. Mitias was a