Bostick v. State Farm Mutual Automobile Insurance Company

Filing 74

ORDER: State Farm's Motion to Exclude Bostick's Treating Physicians from Testifying at Trial or, in the alternative, to Limit Their Testimony (Doc. # 53 ) is GRANTED IN PART and DENIED IN PART such that Bostick's treating physicians may testify only as to observations made during the course of treatment. Signed by Judge Virginia M. Hernandez Covington on 7/5/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LISA N. BOSTICK,
Plaintiff,
v.

Case No. 8:16-cv-1400-T-33AAS

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant State Farm Mutual Automobile Insurance Company’s
Motion

to

Exclude

Bostick’s

Treating

Physicians

from

Testifying at Trial or, in the alternative, to Limit Their
Testimony, which was filed on May 4, 2017. (Doc. # 53).
Plaintiff Lisa N. Bostick filed her response in opposition
(Doc. # 55) on May 18, 2017, and State Farm filed its reply
to the response (Doc. # 56) on June 1, 2017. For the reasons
that follow, the Court grants the Motion in part.
I.

Background
After sustaining injuries in a November 14, 2013, car

accident, Bostick filed a state court action against State
Farm for breach of contract in which she seeks recovery of

uninsured motorist benefits. (Doc. # 2). State Farm removed
the case to this Court on June 2, 2016, under 28 U.S.C. §
1332. (Doc. # 1).
On June 29, 2016, the Court entered its Case Management
and Scheduling Order setting December 19, 2016, as Bostick’s
deadline to disclose expert reports. (Doc # 13). Later,
Bostick filed an Unopposed Motion for Extension of Time to
Complete Discovery, which the Court granted, and her expert
disclosure deadline was extended to February 14, 2017. (Doc.
## 34-35). The Court extended the discovery deadline to April
20, 2017. (Doc. # 39).
Plaintiff has retained five expert witnesses: Randall R.
Benson, M.D.; Christopher N. Leber, M.D.; Steven J. Koontz,
PE; Robert W. Johnson; and James A. Mills. The present Motion
does not pertain to the retained experts listed above.

State

Farm explains that on April 20, 2017, Bostick provided Amended
Rule

26(a)(1)

Disclosures,

listing

19

medical

providers

and/or medical facilities, which follow: Late Hours Urgent
Care

Center;

Doctors

Pain

Management

Group

of

Brandon;

Massage Envy-Brandon; Kimberly A. Tobon, M.D.; Rose Radiology
Tampa;

John

D.

Okun,

M.D.;

Brandon

Regional

Hospital;

Oakfield Drive Emergency Physicians; David Zelin, DMD, LLC;
Therapy and Sports Venter, Inc.; Gregory Flynn, MD; Tampa Bay

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Center for Specialized Surgery; Thomas J. Boldand, MD, DMD;
Tampa Bay Imaging; Rehab Solutions Specialists, Inc.; Brandon
Surgery Center; Edward White Hospital; Donald Smith, MD; and
Charles Nofsinger, MD. (Doc. # 53-2). Bostick did not provide
any summary of the testimony for these 19 witnesses. Instead,
she only stated that they had discoverable information on
“damages.” (Id.).

State Farm thus moves to prevent Bostick’s

19 treating physicians from testifying.

In the alternative,

State Farm seeks to limit the testimony of the treating
physicians

to

observations

made

during

the

course

of

treatment. (Doc. # 53).
II.

Legal Standard
“A treating physician may testify as either a lay witness

or an expert witness; however, in order to testify as an
expert

witness,

the

physician

must

provide

the

required

disclosures under Rule 26(a)(2)(B) or Rule 26(a)(2)(C).” See
Fed. R. Civ. P. 26(a)(2)(C)(Advisory Committee Notes to 2010
Amendment); Sweat v. United States, No. 8:14-cv-888-T-17JSS,
2015 WL 8270434, at *2 (M.D. Fla. Dec. 8, 2015)(citing
Whitehead v. City of Bradenton, No. 8:13-cv-2845-T-30MAP,
2015 WL 1810727, at *4 (M.D. Fla. Apr. 20, 2015)). The
Advisory Committee Notes to the 2010 Amendment stated:

3 

A witness who is not required to provide a report
under Rule 26(a)(2)(B) may both testify as a fact
witness and also provide expert testimony under
Evidence Rule 702, 703, or 705. Frequent examples
include physicians or health care professionals and
employees of a party who do not regularly provide
expert testimony. Parties must identify such
witnesses under Rule 26(a)(2)(A) and provide the
disclosure required under Rule 26(a)(2)(C). The
(a)(2)(C) disclosure obligation does not include
facts unrelated to the expert opinions the witness
will present.

Fed. R. Civ P. 26(a)(2)(C) (Advisory Committee’s Note to the
2010 Amendment).
Rule 26(a)(2)(B) requires a witness who is “retained or
specially employed to provide expert testimony in the case”
to provide a written report. Fed. R. Civ. P. 26(a)(2)(B).
But, a physician who supplies an opinion procured directly
from treatment is not subject to the expert witness disclosure
requirements of Rule 26(a)(2)(B). Blakely v. Safeco Ins. of
Ill., No. 6:13-cv-796-Orl-37TBS, 2015 WL 1118071, at *3 (M.D.
Fla. Mar. 20, 2014); see also Sweat, 2015 WL 8270434, at *2
(quoting Rementer v. United States, No. 8:14-cv-642-T-17MAP,
2015 WL 5934522, at *5 (M.D. Fla. Oct. 9, 2015)). If a witness
is

not

required

to

provide

a

written

report,

then

the

disclosure must contain “the subject matter on which the
witness is expected to present evidence under Federal Rule of
Evidence 702, 703, or 705; and a summary of the facts and

4 

opinions to which the witness is expected to testify.” Fed.
R. Civ. P. 26(a)(2)(C). But, Rule 26(a)(2)(C) requires more
than the production of records. Sweat, 2015 WL 8270434, at *2
(citing Jones v. Royal Caribbean Cruises, Ltd., No. 12-20322CIV,

2013

WL

8695361,

2013)(concluding
records

from

his

that

at

*4

plaintiff’s

treating

(S.D.

Fla.

production

physician

was

Apr.
of

4,

medical

insufficient

to

satisfy Rule 26(a)(2)(C))).
III. Analysis
State Farm argues that because Bostick did not also
disclose

her

treating

physicians

in

her

Rule

26(a)(2)

Disclosures, the treating physicians’ testimony should be
excluded entirely.

Alternatively, State Farm argues that the

treating physicians’ testimony should be limited to only lay
and fact testimony regarding their observations through the
course of Bostick’s treatment. Bostick counters that treating
physicians do not need to provide Rule 26(a)(2)(B) expert
reports, and should therefore be allowed to testify.
On February 14, 2017, Bostick served her Rule 26(a)(2)
Disclosures, which listed five expert witnesses and did not
include any of the 19 treating physicians. (Doc. # 53-3).
Bostick concedes she did not comply with Rule 26(a)(2)(B) in
filing expert reports by her treating physicians. (Doc. # 55

5 

at 4-5). Further, Bostick’s April 20, 2017, Amended Rule
26(a)(1)

Disclosures

do

not

satisfy

Rule

26(a)(2)(C)’s

requirements. The production of the witnesses’ names along
with the fact that they will testify as to “damages” is
insufficient

to

meet

even

the

lower

standard

of

Rule

26(a)(2)(C).
The Court concludes that Bostick did not need to file
26(a)(2)(B) expert reports to have her treating physicians
testify.

Under the plain language of Rule 26(a)(2)(B),

Bostick’s treating physicians were not required to provide
written reports because they were not retained or specially
employed to provide expert testimony.

Still, Bostick was

required to comply with Rule 26(a)(2)(C) for the treating
physicians to testify beyond observations made during the
course of their treatment.

Because Bostick failed to meet

the requirements of 26(a)(2)(C), her treating physicians’
testimony shall be limited to facts and observations made
during the course of treatment. In other words, the treating
physicians will be treated as lay witnesses.
Bostick requests that “this Court allow the opportunity
to cure any inadequacy rather than grant either of the harsh
sanctions requested by Defendant.” (Doc. # 55 at 6). But,
State Farm correctly points out that “plaintiff disclosed

6 

multiple

non-treating

expert

opinions,

and

disclosed

absolutely zero treating physician expert opinions. State
Farm was permitted to rely on this disclosure as complete.”
(Doc. # 56 at 4). The Court agrees.
At this juncture, the Court is not willing to extend the
expert disclosure deadline, as it has already done. Bostick
has already designated her experts in her Rule 26(a)(2) Expert
Disclosure,

which

lists

five

retained

expert

witnesses:

Randall R. Benson, MD; Christopher N. Leber, MD; Steven J.
Koontz, PE; and Robert W. Johnson and James A Mills, forensic
economists. (Doc. # 53-2). If the Court were to allow Bostick
to add additional experts, State Farm would be entitled to
rebuttal witnesses and discovery would have to be reopened.
Allowing Bostick leave to supplement at this late juncture
would undermine the goals espoused in Rule 1 of the Federal
Rules

of

Civil

Procedure,

namely

the

inexpensive determination of every cause.

speedy,

just

and

It is worth noting

that the pretrial statement, including jointly proposed jury
instructions, verdict forms, and witness lists, is due on
August 10, 2017.

The Court is not in a position to allow the

parties to supplement witness disclosures at this late stage.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:

7 

State

Farm’s

Motion

to

Exclude

Bostick’s

Treating

Physicians from Testifying at Trial or, in the alternative,
to Limit Their Testimony (Doc. # 53) is GRANTED IN PART and
DENIED IN PART such that Bostick’s treating physicians may
testify only as to observations made during the course of
treatment.
DONE and ORDERED in Chambers in Tampa, Florida, this 5th
day of July, 2017.

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