Adams et al v. Austal, U.S.A., L.L.C.

Filing 630

ORDER re: 548 Motion to Strike. Austal's motion to strike is denied as to Andrew's proposed testimony regarding what she observed and did in the course of Plaintiff's treatment and granted as to Andrew's proposed testimony that she "diagnosed Plaintiff with PTSD".. Signed by Judge Kristi K. DuBose on 12/20/2011. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BEVERLY THOMAS, et al.,
Plaintiffs,
vs.
AUSTAL, USA, L.LC.,
Defendant.

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CIVIL ACTION NO 08-0155-KD-N

ORDER
This matter is before the Court on Defendant Austal, USA, LLC’s “Objection and Motion to
Strike Plaintiff Beverly Thomas’s Expert Witness” (Doc. 548), Plaintiff Beverly Thomas’
Opposition (Doc. 564), Defendant Austal’s Reply (Doc. 567), Plaintiff’s Supplemental Rule
26(a)(2)(C) disclosures regarding Elizabeth Andrew, MS, LPC (Doc. 580) and Defendant Austal’s
Supplemental Objection (Doc. 597).
Defendant Austal, U.S.A., L.L.C. (“Austal”) moves to strike the testimony of licensed
professional counselor Elizabeth Andrew (“Andrew”), a trial witness for Plaintiff Beverly Thomas
(“Plaintiff”). As grounds, Austal contends that: 1) Plaintiff untimely disclosed Andrew as an expert
in this case and did not file the requisite expert report; and 2) Andrew is not a medical doctor, such
that her diagnosis of Plaintiff as suffering from post–traumatic stress disorder (“PTSD”) is
inadmissible.
Federal Rule of Civil Procedure 37(c)(1) states: “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)(1). “The district court has broad discretion to admit or
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exclude untimely submissions under this rule.” Lambert v. Monaco Coach Corp., 2005 WL
5961075, *1 (M.D. Fla. Feb. 10, 2005).
As to Austal’s first contention, Andrew is not Plaintiff’s expert and thus no Rule 26 expert
report was required. “By its own terms, Rule 26(a)(2)(B) applies only to a witness “who is retained
or specially employed to provide expert testimony in the case or whose duties as an employee of the
party regularly involve giving expert testimony[]” [--] “[a] treating physician…can be deposed or
called to testify at trial without any requirement for a written report.” Fed.R.Civ.P. 26(a)(2)(B)
advisory committee’s note.
Thus, as Plaintiff’s counselor, Andrew may offer relevant factual testimony of which she has
personal knowledge. For instance, Andrew may testify regarding her personal observation of
plaintiff and the course of treatment provided if deemed relevant to the case.
Plaintiff also states that Andrew will testify that she diagnosed Plaintiff with PTSD. Plaintiff
asserts that Andrew is qualified to make the diagnosis “as long as it is reviewed by a doctor” and
“this particular [PTSD] diagnosis [of Plaintiff] was reviewed by the Psychiatrist that supervised
Andrew at AltaPointe Health Systems[]” (Doc. 580 at 3). Plaintiff has provided no case law in
support of this assertion and/or any evidentiary support regarding this “review.” Despite Plaintiff’s
contention, Andrew is not a medical doctor or psychologist, rather she is a licensed professional
counselor (“LPC”), and the case law supports a contrary finding under such circumstances. As
explained in Crocker v. City of Fairhope, 2005 WL 6217200 (S.D. Ala. May 4, 2005), in “every
known Eleventh Circuit case in which PTSD was diagnosed, the diagnosis was made by a medical
doctor or psychologist[]…a wealth of authority rejects the idea that an LPC is qualified to render
such an opinion.” Crocker, 2005 WL 6217200, *1. As such, Andrew may not testify that she
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“diagnosed Plaintiff with PTSD.”
Accordingly, it is ORDERED that Austal’s motion to strike (Doc. 548) is DENIED as to
Andrew’s proposed testimony regarding what she observed and did in the course of Plaintiff’s
treatment and GRANTED as to Andrew’s proposed testimony that she “diagnosed Plaintiff with
PTSD.”
DONE and ORDERED this the 20th day of December 2011.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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