Neely v. Circle K Stores, Inc.

Filing 50

ORDER denying 43 Defendant Circle K Stores, Inc.'s Motion to Exclude Expert Testimony. Signed by Magistrate Judge Natalie Hirt Adams on 5/13/2024. (BPC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MICHAEL NEELY,
Plaintiff,
v.

Case No: 8:22-cv-2556-NHA

CIRCLE K STORES, INC.,
Defendant.

/
ORDER

Defendant Circle K Stores, Inc.’s Motion to Exclude Expert Testimony
(Doc. 43) is denied. To the extent Plaintiff’s physicians were hired to treat
Plaintiff, rather than to testify in this case, Plaintiff is not required to submit
reports pursuant to Rule 26(a)(2)(B) as a prerequisite to their testimony.
Background
Plaintiff Michael Neely sues Defendant Circle K Stores, Inc. for
negligence. Doc. 1-1. Plaintiff alleges that he was injured after he slipped and
fell in water leaked from Circle K’s cooler. Id.
On June 13, 2023, Plaintiff disclosed his expert witnesses to Circle K.
Doc. 41-1. There, Plaintiff disclosed seven medical professionals: (1) Dr.
Johannes V. Blom, MD, PA; (2) Dr. Roderick Claybrooks; (3) Jeffrey Owens,
PA-C; (4) Dr. Christopher King; (5) Dr. Sara Safder, MD; (6) Dr. Jesse Law,

MD; and (7) Dr. Chintai Desai, MD (together, the “Treating Physicians”). Id.
Plaintiff stated that the Treating Physicians were “not retained experts” but
that he listed them out of “an abundance of caution.” Id. Plaintiff provided
notice that the Treating Physicians would testify as to the “causation of Mr.
Neely’s injuries, diagnosis, prognosis and reasonable costs of past and future
medical care; and the permanency of Mr. Neely’s injuries.” 1 Id. Plaintiff further
explained that each Treating Physician would “base [his or her] testimony on
experience and training.” Id.
On March 19, 2024, Defendant moved to exclude the testimony of the
Treating Physicians as to the causation and permanency of any injury, and the
reasonable cost of past and future medical care, because Plaintiff did not
produce any expert reports consistent with Federal Rule of Civil Procedure
26(a)(2)(B). Doc. 43, p. 3. Expert reports were due to be produced on June 13,
2023. Id. (citing the Court’s Case Management and Scheduling Order (Doc. 18,
pp. 1, 3)). Plaintiff opposed the motion, asserting that he had no obligation to
produce Rule 26(a)(2)(B) reports, because the Treating Physicians were not
“retained or specially employed to provide expert testimony in the case.” See
Doc. 48, p. 5.

While all seven disclosures state that the Treating Physicians will testify
regarding the issue of causation and permanency of Mr. Neely’s injuries (Doc.
41-1), Mr. Neely states that only Dr. Blom and Dr. Claybrooks will testify as
to causation and permanency (Doc. 48, p. 3).
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Standard of Review/Applicable Law
Federal Rule of Civil Procedure 26 requires a party to disclose the
witnesses he will present at trial. Fed. R. Civ. P. 26(a). Rule 26, which also
governs the pretrial disclosures for expert witnesses, outlines two types of
expert witnesses: those who were retained for the purpose of providing expert
testimony in the case, and those who were not. Fed. R. Civ. P. 26(a)(2).
“[W]hether an expert was ‘retained’ hinges on how she formed her relationship
with the party she will testify for—not on the content of the testimony.” Cedant
v. United States, 75 F.4th 1314, 1317 (11th Cir. 2023). For instance, if a
physician was initially hired to treat a patient rather than to testify, the
physician would not be classified as a “retained” expert. Id.
The classification of an expert witness determines disclosure that a party
must make under Rule 26 prior to offering his testimony. If the expert was
retained to testify, Rule 26(a)(2)(B) requires the presenting party to produce a
“written report” that contains (1) a complete statement of all opinions the
witness will express and the reasons for them; (2) the facts or data considered
by the witness in forming them; (3) any exhibits that will be used to summarize
or support them; (4) the witness’s qualifications; (5) a list of all other cases the
witness testified in the last 4 years; and (6) a statement of compensation for
testimony in the case. Fed. R. Civ. P. 26(a)(2)(B). However, for other experts,
the presenting party need only provide the subject matter of the testimony or
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a summary of the facts and opinions to which the witness is expected to testify.
Fed. R. Civ. P. 26(a)(2)(c).
Analysis
Circle K moves to exclude the testimony of Plaintiff’s Treating
Physicians, asserting that Rule 26(a)(2)(B) required Plaintiff to submit a
written report before offering their opinions regarding causation, permanency,
and the reasonable costs of past and future medical care. But an “expert's job
title, the subject or scope of his testimony, and the way that he formed his
opinions are irrelevant inquiries for Rule 26(a)(2) purposes.” Cedant, 75 F.4th
at 1324. “The only question presented by the Rule's text is whether the witness
was retained as an expert or otherwise employed as described in Rule
26(a)(2)(B).” Id.
In Cedant, the Eleventh Circuit clarified the differences between an
expert who was retained to testify and one who was not. Id. There, the plaintiff
served his expert witness disclosures to the defendant and stated that no
expert witness had been “retained” in the case. Id. at 1318. Nonetheless,
plaintiff disclosed his “non-retained” experts out of an “abundance of caution”
and stated that they formed opinions as to the cause of his injuries while
treating him. Id. The disclosure was accompanied by documents that briefly
outlined the opinion of each doctor but did not otherwise constitute written
reports under Rule 26(a)(2)(B). Id. The defendant argued that the plaintiff’s
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expert witnesses were “retained experts” and that their testimony should be
excluded because plaintiff failed to timely disclose written reports under Rule
26(a)(2)(B). Id.
The District Court in Cedant held that a treating physician must submit
a written report under Rule 26(a)(2)(B) when testifying on the issues of
causation, prognosis, and/or future implications of the injury. Id. at 1319. The
Eleventh Circuit reversed, holding that “whether an expert was ‘retained’
hinges on how she formed her relationship with the party she will testify for —
not on the content of the testimony.” Id. at 1317. The Circuit held that the
plaintiff was not required to produce a Rule 26(a)(2)(B) report, because the
plaintiff first hired the physicians to treat him rather than to testify. Id. at
1324–1325.
Here, Plaintiff asserts that the Treating Physicians were initially
retained to treat him, not to testify. Defendant presents no evidence to the
contrary. Plaintiff is not required to submit a Rule 26(a)(2)(B) report before
presenting the testimony of his treating physicians. Were Defendant curious
about their opinions, they had the right to depose them. Defendant chose not
to do so.
Conclusion
Defendant’s Motion to Exclude the Expert Testimony (Doc. 48) is
DENIED.
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DONE AND ORDERED in Tampa, Florida on this 13th day of May,
2024.

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