Cook v. The Hughston Clinic, P.C. et al

Filing 39

MEMORANDUM OPINION AND ORDER the defendants' 29 MOTION to Strike be and is hereby GRANTED to the extent that Nurse Hiedel and Dr. Lakatosh are prohibited from testifying as expert witnesses pursuant to Fed.R.Civ.P. at the trial of this matter . The parties are DIRECTED to fully disclose and discuss with Chief United States District Judge W. Keith Watkins, at the pretrial conference of this case, the evidentiary issues surrounding the testimony of Nurse Hiedel and Dr. Lakatosh at trial. It is further ORDERED that plaintiffs counsel, Thomas Edward Dutton, shall pay to the defendant the reasonable costs and expenses, including attorneys fees, related to the 29 motion to strike. Signed by Honorable Judge Charles S. Coody on 12/23/2014. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
LORRAINE COOK,
Plaintiff,
v.
THE HUGHSTON CLINIC, P.C., et al.,
Defendants.

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CIVIL ACT. NO. 3:14cv296-WKW
(WO)

MEMORANDUM OPINION and ORDER
Now pending before the court is the defendants’ motion to strike Plaintiff’s Experts
Reports (doc. # 29) filed on November 17, 2014. The court held oral arguments on
December 11, 2014.
The plaintiff identified her treating health care providers, Wendy Hiedel and Dr.
Donald Lakatosh, in her initial disclosures on September 24, 2014. On November 13, 2014,
long after the time to designate expert witnesses, the plaintiff attempted to expand her cadre
of experts by naming Nurse Niedel and Dr. Lakatosh as experts pursuant to FED.R.CIV.P.
702. The defendants object to these witnesses testifying as experts. The defendants’
objection is due to be sustained based on the lateness of the identification of these witnesses
as experts. Consequently, the court will grant the defendants’ motion to strike (doc. # 29)
to the extent that Nurse Hiedel and Dr. Lakatosh are prohibited from testifying as expert
witnesses under the provision of FED.R.CIV.P. 702.
However, because the witnesses are the plaintiff’s treating health care providers, they

are not precluded from testifying as fact witnesses pursuant to FED. R. EVID. 701. See e.g.,
Wilson v. Taser Int’l, Inc., 303 Fed. Appx. 708 (11th Cir. 2008); Chapman v. Proctor &
Gamble Distributing, LLC, 766 F.3d 1296, 1316 (11th Cir. 2014). Of course, with respect
to treating physicians the distinction between a fact and expert witness may not always be
clear.
The testimony of treating physicians presents special evidentiary
problems that require great care and circumspection by the trial court. Much
of the testimony proffered by treating physicians is an account of their
experience in the course of providing care to their patients. Often, however,
their proffered testimony can go beyond that sphere and purport to provide
explanations of scientific and technical information not grounded in their own
observations and technical experience. When such a situation presents itself,
the trial court must determine whether testimony not grounded in the
physician's own experience meets the standard for admission as expert
testimony. As we pointed out in United States v. Henderson, 409 F.3d 1293
(11th Cir.2005), distinguishing between lay and expert testimony is an
important one; arriving at an appropriate conclusion requires that trial courts
be vigilant in ensuring that the reliability requirements set forth in Rule 702
not “ ‘be evaded through the simple expedient of proffering an expert in lay
witness clothing.’ ” Id. at 1300 (quoting FED.R.EVID. 701 advisory committee's
note to the 2000 amendment).
Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1316-17 (11th Cir. 2011) (footnote
omitted).
Finally, because the defendants were again required to file a motion to strike experts
as a direct result of the plaintiff’s failure to comply with FED.R.CIV.P. 26(a)(2)(B) regarding
experts, the court concludes that an award of attorney’s fees for filing the motion to strike
is the appropriate sanction in this matter. See FED.R.CIV.P. 37(c)(1). Accordingly, upon
consideration of the motion, for the reasons as stated in open court, and for good cause, it is

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ORDERED the defendants’ motion to strike (doc. # 29) be and is hereby GRANTED
to the extent that Nurse Hiedel and Dr. Lakatosh are prohibited from testifying as expert
witnesses pursuant to FED.R.CIV.P. 702 at the trial of this matter.

The parties are

DIRECTED to fully disclose and discuss with Chief United States District Judge W. Keith
Watkins, at the pretrial conference of this case, the evidentiary issues surrounding the
testimony of Nurse Hiedel and Dr. Lakatosh at trial. It is further
ORDERED that plaintiff’s counsel, Thomas Edward Dutton, shall pay to the
defendant the reasonable costs and expenses, including attorney’s fees, related to the motion
to strike (doc. # 29).
Done this 23rd day of December, 2014.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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