Lambert v. Liberty Mutual Fire Insurance Company et al

Filing 168

ORDER AND OPINION granting in part and denying in part 136 Motion in Limine. Except for Dr. Knowles and Ms. Cathy Guinan MP, the Percipient Medical Witnesses are precluded from offering expert testimony. Dr. Knowles and Ms. Guinan may provide expert testimony as long as their testimony is limited to opinions elicited during their depositions. Signed by Judge John W Sedwick on 6/9/16.(JWS)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 11 12 13 14 15 16 SCOTT LAMBERT, ) ) Plaintiff, ) ) vs. ) ) LIBERTY MUTUAL FIRE INSURANCE ) COMPANY; ELITHA STOCKETT, ) ) Defendants. ) ) 2:14-CV-00521 JWS ORDER [Re: Motion at docket 136] 17 I. MOTION PRESENTED 18 Defendant Liberty Mutual Fire Insurance Company (“Defendant”) filed a motion 19 in limine at docket 136 requesting that Plaintiff Scott Lambert (“Plaintiff”) be precluded 20 from presenting expert testimony from various health care providers based on his 21 failure to comply with the disclosure requirements in Rule 26(a)(2)(C). Plaintiff filed his 22 response at docket 155. Defendant did not file a reply. Oral argument was not 23 requested and would not be of assistance to the court. 24 II. BACKGROUND 25 Plaintiff’s expert disclosure statement identifies two health care providers that he 26 plans to use as non-retained expert witnesses—Dr. Sumit Dewanjee and Dr. Paul 27 Mahoney—and for each of these two providers he includes an individual disclosure 28 statement. Plaintiff then proceeds to set forth an additional list of health care providers 1 who may testify. He states that these health care providers have not been specially 2 retained but are percipient medical witnesses who treated him for his injuries. He does 3 not provide an individual disclosure statement for each provider listed but generally 4 states that each “may be called to testify (or provide expert evidence through his/her 5 records) as to his/her findings and opinions concerning [Plaintiff’s] injuries, the cause of 6 his injuries, and the impact of Defendant’s wrongful denial of benefits on [Plaintiff’s] 7 health, final prognosis and future earnings ability.”1 Defendant argues that the 8 disclosure summary as to these listed health care providers does not comply with the 9 requirements of Rule 26(a)(2)(C). Because of this non-compliance, Defendant requests 10 that the following providers be excluded from providing expert testimony: 11 representatives of STI Physical Therapy; representatives of Back in Action Physical 12 Therapy; Dr. Martin Benoit, representatives of Sonora Quest Laboratorie; Basec 13 Medical Consult Services Inc.; Dr. Greg Allen; Dr. Navtej Tung; Ms. Ann Voght PA; 14 Dr. Kent Vosler; Ms. Geneva Smith PA; Dr. Gary DeBrino; Dr. Laura Bitterman; 15 Dr. Christopher Wie; Ms. Michele Abrose PT; Dr. Patrick Knowles; and Cathy Guinan 16 MP (“Percipient Medical Witnesses”).2 17 18 III. DISCUSSION Rule 26 of the Federal Rules of Civil Procedure requires a party to disclose “the 19 identity of any witness it may use at trial to present evidence under Federal Rule of 20 Evidence 702, 703, or 705.” 3 The purpose of the expert disclosure requirement is to 21 allow the opposing party an opportunity to prepare for cross-examination and arrange 22 for countering expert testimony.4 Rule 26 contemplates two types of experts: (1) those 23 24 1 25 2 26 See doc. 136-1 at pp. 31-35. The adequacy of Plaintiff’s disclosure as to Dr. Dewanjee and Dr. Mahoney is the subject of a separate motion in limine and is not addressed in this order. 27 3 28 4 Fed. R. Civ. P. 26(a)(2)(A). See Fed. R. Civ. P. 26(a)(2) advisory committee’s notes to 1993 amendment. -2- 1 “retained or specially employed” to give expert testimony; and (2) those who are not 2 retained or specially employed, but who may nevertheless provide expert testimony.5 3 That is, the rules recognize “the difference between a percipient witness who happens 4 to be an expert and an expert who, without prior knowledge of the facts giving rise to 5 the litigation, is recruited to provide expert opinion testimony.”6 A retained or specially 6 employed expert is required to provide a detailed written expert report in accordance 7 with Rule 26(a)(2)(B). Percipient expert witnesses who are exempt from the written 8 report requirement must still provide a statement in accordance with Rule 26(a)(2)(C). 9 The disclosure statement must set forth both the subject matter of the expert testimony 10 and “a summary of the facts and opinions to which the witness is expected to testify.”7 11 Generally, treating physicians are not retained or employed to provide expert 12 testimony because they are percipient witnesses of the treatment rendered. As such, a 13 treating physician does not need to provide a detailed written report under 14 Rule 26(a)(2)(B) as long as his or her expert opinion is formed during the course of 15 treatment.8 “Nonetheless, if a treating physician is to testify as an expert, as opposed 16 to a fact witness, he or she must be disclosed [in accordance with] Rule 26(a)(2)(C).”9 17 As stated above, the disclosure must state the subject matter of the testimony and 18 provide a summary of the facts and opinions that the physician is expected to provide. 19 The summary does not require “undue detail.” 10 However, it must still “sufficiently 20 21 22 5 23 6 24 7 25 8 26 27 28 Fed. R. Civ. P. 26(a)(2)(B)-(C). Downey v. Bob’s Disc. Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011). Fed. R. Civ. P. 26(a)(2)(C). Goodman v. Staples the Office Superstore LLC, 644 F.3d 817, 826 (9th Cir. 2011). 9 Jones v. Colo. Cas. Ins. Co., No. 12-cv-01968, 2015 WL 6123125, at * 2 (D. Ariz. Oct. 19, 2015). 10 See Fed. R. Civ. P. 26(a)(2)(C) advisory committee’s note to 2010 amendment. -3- 1 apprise an opposing party of a treating physician’s opinions.”11 District courts have 2 concluded that it is not sufficient under Rule 26(a)(2)(C) to simply state that the 3 physician will testify consistent with medical records.12 4 Here, Plaintiff has indicated that the Percipient Medical W itnesses will offer 5 expert opinions as to the extent of Plaintiff’s injuries, the cause of injuries, and the 6 impact of Defendant’s denial of benefits on Plaintiff’s health and future earning ability. 7 Defendants acknowledge that these Percipient Medical W itnesses are not retained 8 experts and are otherwise not required to comply with the more stringent requirements 9 of Rule 26(a)(2)(B). Indeed, Plaintiff asserts that the Percipient Medical W itnesses will 10 testify only as to their opinions formed during treatment.13 However, that does not end 11 the inquiry. As discussed above, in order to elicit expert opinions from the Percipient 12 Medical Witnesses, even if they will not expand beyond opinions formed during the 13 course of their treatment, Plaintiff must provide a disclosure that comports with 14 Rule 26(a)(2)(C). Plaintiff failed to do so. His general statement that each provider will 15 provide expert testimony about injuries, causation, and the impact of benefit denial on 16 Plaintiff’s health, final prognosis, and future earning potential is wholly devoid of any 17 “summary of the facts and opinions” required under Rule 26(a)(2)(C). 18 “If a party fails to provide information or identify a witness as required by 19 Rule 26(a) . . ., the party is not allowed to use that information or witness to supply 20 evidence on a motion, at a hearing, or at trial.”14 This sanction for improper disclosure 21 is automatic and is only excused if “the failure was substantially justified or is 22 23 24 11 25 12 26 Jones, 2015 WL 6123125, at * 2 (internal quotations and citations omitted). Id.; see also Cabrera v. Clark Cty. Detention Ctr., No. 12-cv-00918, 2015 WL 1815426, at *2 (D. Nev. April 20, 2015). 27 13 28 14 Doc. 155 at p. 2. Fed. R. Civ. P. 37(c)(1). -4- 1 harmless.”15 It is the violating party’s burden to show justification or harmlessness.16 2 Here, Plaintiff makes no argument to show why his failure to comply with 3 Rule 26(a)(2)(C) was justified or harmless. Moreover, Plaintiff does not make an 4 argument that the court should craft a narrower exemption. However, based on the 5 recently-decided motion for summary judgment, the court is aware that two of the 6 Percipient Medical Witnesses have been deposed by Defendant— Dr. Patrick Knowles 7 and Cathy Guinan MP—and thus there is support for a finding of harmlessness as to 8 these two providers as long as their expert testimony is limited to opinions that were 9 elicited during their respective depositions. 10 IV. CONCLUSION 11 Based on the preceding discussion, Defendant’s motion in limine at docket 136 12 is GRANTED IN PART and DENIED IN PART. Except for Dr. Knowles and Ms. Cathy 13 Guinan MP, the Percipient Medical W itnesses are precluded from offering expert 14 testimony. Dr. Knowles and Ms. Guinan may provide expert testimony as long as their 15 testimony is limited to opinions elicited during their depositions. 16 DATED this 9th day of June 2016 17 18 /s/ JOHN W. SEDWCK SENIOR UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 15 28 16 Id.; see also Goodman, 644 F.3d at 827. See Goodman, 644 F.3d at 827. -5-

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