Carrillo v. Lowe's HIW, Inc. et al

Filing 40

ORDER granting 26 Motion to Limit Testimony of Plaintiff's Designated Experts. Signed by Magistrate Judge Cathy Ann Bencivengo on 6/29/2011. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARIO CARRILLO,

Civil No.

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10cv1603-MMA (CAB)

Plaintiff,
DISCOVERY ORDER GRANTING
DEFENDANT’S MOTION TO LIMIT
TESTIMONY OF PLAINTIFF’S
DESIGNATED EXPERTS

v.
LOWE’S HIW, INC. and DOES 1 to 25,
inclusive,
Defendants.

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Before the Court is defendant Lowe's HIW Inc.'s ("Lowe’s") motion to preclude plaintiff Mario

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Carrillo ("Carrillo") from offering expert witness testimony, or in the alternative limit the testimony of

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the plaintiff's designated experts. [Doc. No. 26.] Carrillo filed an opposition. [Doc. No. 32.] Lowe's filed

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a reply. [Doc. No. 38.] On June 9, 2011, the matter was referred by the District Judge, the Honorable

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Michael M. Anello, to the undersigned for determination. [Doc. No. 27.] The Court held a telephonic

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hearing on the motion on June 28, 2011. Charles Viviano, Esq., appeared for plaintiff Carrillo. Gene

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Sharaga, Esq., appeared for defendant Lowe's. Having considered the submissions of the parties and the

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arguments of counsel, the motion is GRANTED.

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This is a personal injury case asserting premises liability and negligence. Plaintiff Carrillo

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alleges he was injured while on defendant's premises; specifically, he was using defendant's restroom

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and slid and fell from the toilet because the seat was not properly secured. He alleges injuries to his

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back, right shoulder, right arm, right leg, right foot, groin and penis. [Doc. No. 26-1 at 2; Doc. No. 32 at

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2.]

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On November 3, 2010, the Court entered a Case Management Order setting forth, among other

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things, dates by which the parties were to exchange information regarding expert witnesses expected to

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be called at trial and dates by which the experts’ reports or disclosures were to be exchanged. [Doc. No.

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14 at ¶¶ 2, 3.] The identification of expert witnesses was due April 8, 2011. The required written reports

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or disclosures were due May 9, 2011. With regard to the exchange of written reports or disclosures,

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because they were due after December 1, 2010, the order specifically referenced Fed. R. Civ. P.

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26(a)(2)(B)-(C), as amended on December 1, 2010 [id. at ¶3, (emphasis in the original)], to highlight the

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new requirement under Rule 261 regarding expert reports. As of December 1, 2010, parties are required

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to disclose a summary of the facts and opinions to be presented at trial by non-retained expert witnesses

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who are not required to provide expert reports under Rule 26(a)(2)(B). See Rule 26(a)(2)(C).

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On April 14, 2011, plaintiff served his expert witness disclosures pursuant to Rule. 26(a)(2)(A),

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designating Veerinder S. Anand, M.D., and Danny Keiller, M.D., as “retained” expert witnesses

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expected to be called at trial. [Doc. No. 26-2, Ex. 1.] Drs. Anand and Keiller are physicians who treated

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plaintiff after his accident at Lowe's. Each was identified and described as expected to testify and opine

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regarding:

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the treatment and diagnostic tests given, the results of same, his review of medical bills
incurred as a result of the accident and the reasonableness of those bills, and his opinion
as to the plaintiff's past, current and future medical condition.

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[Id.]

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Plaintiff states in his disclosure that reports containing the information required by Rule

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26(a)(2)(B)-(C) will be provided no later than May 9, 2011 in accordance with this Court's order. [Id. at

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3.] On May 9, 2011, plaintiff served neither a written report pursuant to Rule 26(a)(2)(B), or a written

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disclosure pursuant to Rule 26(a)(2)(C) for either designated expert as required by the Federal Rules of

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Civil Procedure and this Court's order. As of the hearing on this motion, plaintiff has not provided any

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report or disclosure for these expert witnesses. [Doc. No. 32 at 4.]

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Lowe's moves to preclude the plaintiff's witnesses from providing expert opinions at trial due to

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plaintiff's failure to comply with the requirements of Rule 26 and this Court's scheduling order. Lowe's

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All cites to “Rule[s]” refer to the Federal Rules of Civil Procedure unless otherwise noted.
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cites to this Court's order, which states that “any party that fails to make [Rule 26(a)(2)(A)-(C)]

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disclosures shall not, absent substantial justification, be permitted to use evidence or testimony not

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disclosed at any hearing or at the time of trial.” [Doc. No. 14.] Lowe's argues that plaintiff's designations

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were untimely, and moreover plaintiff served no reports or disclosures at all. Lowe's contends there is

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no substantial justification for plaintiff's failure to comply with the Rules and this Court's order.

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Plaintiff acknowledges that his expert witness designation was a week late, however argues that

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Lowe's has not identified any prejudice it suffered as a result of the untimely service. Counsel for

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Carrillo represents that the delayed service was to due to her error in calendaring the correct date. [Doc.

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No. 32-1, at ¶¶13-14.] The plaintiff asks to be excused from that error. Finding no prejudice to

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defendant, particularly in light to the fact that the late-designated experts were known to defendant as the

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plaintiff's treating physicians, the Court denies defendant's motion on the basis that the plaintiff's Rule

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26(a)(2)(A) designations were untimely.

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With regard to the service of written reports, required by Rule 26(a)(2)(B), plaintiff argues that

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although designated as “retained” experts, plaintiff's two designated experts are not in fact “retained” as

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contemplated by Rule 26(a)(2)(B) in that they are not “one retained or specially employed to provide

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expert testimony in the case,” and are not therefore subject to having to provide a written report as set

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forth in Rule 26(a)(2)(B). Plaintiff argues that his experts as treating physicians are experts who will

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offer opinions based on their treatment of the plaintiff and not from extrinsic information provided to

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them beyond their treatment records and are therefore exempt from requirements of Rule 26(a)(2)(B).

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[Doc. No. 32, at 6-7.] See Goodman v. Staples the Office Superstore, LLC., No. 10-15021, 2011 WL

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1651246, at *6 (9th Cir. (Ariz.) May 3, 2011), citing Fed.R.Civ.P. 26(a)(2) advisory committee's note

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(1993)(a treating physician is a percipient witness of the treatment he rendered - and therefore he is not

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subject to the written report requirement.)

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Defendant argues that plaintiff designated the treating physicians as “retained” experts and

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therefore they are subject to the requirement to provide written reports. Defendant also cites to

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Goodman, 2011 WL 1651246, at *8, in which the court held that if a treating physician is retained to

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render expert opinions beyond the scope of the treatment rendered, a Rule 26 report is required.

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Because plaintiff indicated that the two doctors were “retained” experts, to the extent they would offer
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opinions beyond the scope of the treatment rendered to plaintiff, written reports should have been

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provided. Having failed to do so, defendant argues plaintiff should be precluded from soliciting opinion

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testimony from his designated experts.

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As of December 1, 2010, the Federal Rules addressed this issue of non-retained experts and Rule

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26's requirements for written reports by experts. The Rule was amended to require parties to disclose “a

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summary of the facts and opinions to be presented at trial” by non-retained expert witnesses who are not

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required to provide expert reports under Rule 26(a)(2)(B). Rule 26(a)(2)C) was added to “mandate

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summary disclosures of the opinions to be offered by expert witnesses who are not required to provide

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reports under Rule 26(a)(2)(B) and of the facts supporting those opinions.” Fed.R.Civ.P. 26(a)(2)(C)

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advisory committee’s notes (2010). The Amendment Notes specifically reference physicians who may

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testify as a fact witness and provide expert testimony, and requires parties to identify such witnesses

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under Rule 26(a)(2)(A) and provide the disclosure under Rule 26(a)(2)(C).

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Plaintiff was fully aware of this rule amendment. It was highlighted in the Court's scheduling

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order, and plaintiff cites to the Advisory Committee’s Notes regarding the amendment of Rule 26 in his

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opposition brief. [Doc. No. 32 at 6.]

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The plaintiff failed to provide a written report or a written disclosure for either of his designated

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experts, in compliance with the Court's order and Rule 26. Plaintiff's treating physicians may therefore

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testify as percipient witnesses regarding the treatment they rendered to plaintiff, including the plaintiff's

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presentment of symptoms, their diagnoses, the treatment they provided plaintiff, and the medical bills

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incurred for their treatment.

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The witnesses are, however, precluded from offering opinions as to causation, and the plaintiff's

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future medical condition, the reasonableness of the medical expenses incurred, the expenses for future

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medical treatment, and any other opinions beyond the treatment they rendered to plaintiff. Such

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testimony was subject to the disclosure requirements of Rule 26(a)(2)(C), and having failed to provide

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defendant with a summary of those opinions and the facts supporting those opinions, defendant would be

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unduly prejudiced to allow such testimony at trial or in any other proceeding.

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The defendant's motion is GRANTED as set forth above.

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DATED: June 29, 2011

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CATHY ANN BENCIVENGO
United States Magistrate Judge

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