Barnes et al v. Whitfield et al
ORDER denying 22 Motion to Exclude Expert Testimony; granting in part 22 Motion for Sanctions; denying as moot 23 Motion for Extension of Time to File Response/Reply. The Court ORDERS Plaintiffs to furnish expert witness disclosures to Def endants by October 24, 2016, and by the same deadline ORDERS Defendants to file an itemization of their costs and attorneys fees accrued in preparing and filing their motion so that the Court may impose monetary sanctions. Signed by Magistrate Judge Brian K. Epps on 10/18/2016. (maa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BOBBY A. BARNES and
RONALD W. BARNES,
BILLY R. WHITFIELD and CARRIER
Before the Court is a dispute concerning Plaintiffs’ failure to disclose expert witness
summaries. The Court GRANTS in part Defendants’ motion for sanctions (doc. no. 22),
DENIES Defendants’ request to exclude any potential expert witnesses or expert testimony
offered by Plaintiffs, ORDERS Plaintiffs to furnish expert witness disclosures to Defendants
by October 24, 2016, and by the same deadline ORDERS Defendants to file an itemization
of their costs and attorneys’ fees accrued in preparing and filing their motion so that the
Court may impose monetary sanctions. The Court DENIES AS MOOT Plaintiffs’ Motion
for Extension of Time to File a Response (doc. no. 23) and EXTENDS remaining deadlines
in a contemporaneous Revised Scheduling Order.
Plaintiffs filed this lawsuit in the Superior Court of Richmond County regarding a car
accident between themselves and Defendant Whitfield. (Doc. no. 1.) Defendants removed
the case to federal court, and the parties conducted a Rule 26(f) planning meeting to confer
on a schedule for the case. (Doc. no. 1, 7.) Based on the parties’ 26(f) report, the Court
entered a scheduling order setting a deadline of July 12, 2016 for Plaintiffs’ expert witness
disclosures. (Doc. no. 8.) On June 16, 2016, the Court entered a revised scheduling order
based on the parties’ consent motion extending the deadline for Plaintiffs to disclose expert
witnesses to September 1, 2016. (Doc. no. 20.)
On September 7, 2016, Defendants sent Plaintiffs a letter seeking disclosure of
Plaintiffs’ experts. (Doc. no. 22, Ex. B, Attch. 3.) Later that day via email correspondence,
Plaintiffs’ counsel expressed his belief Plaintiffs need not disclose non-retained experts. (Id.)
When questioned about his position, Plaintiffs’ counsel failed to respond. (Id.) Having not
heard from Plaintiffs, Defendants filed the present motion nine days later on September 16,
2016, asking the Court to exclude any expert testimony for the failure. (Doc. no. 22.)
Plaintiffs do not contend that they were required to disclose their experts by September 1,
2016, or that they failed to do so. (Doc. no. 24.) Plaintiffs’ counsel’s only excuse is he was
recently associated on the case and misinterpreted both the Order and the Federal Rule. (Id.)
Plaintiffs contend they can make the required disclosures by October 3, 2016, and concede
monetary sanctions and a revised scheduling order are appropriate. (Doc. no. 24.)
Pursuant to Federal Rule of Civil Procedure 26(a)(2), a party must disclose “any
witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or
705.” Fed. R. Civ. P. 26(a)(2)(A). Furthermore, if that witness is “retained or specially
employed to provide expert testimony,” the disclosure also much contain a written report
prepared by the witness summarizing their opinions and the basis for them. Fed. R. Civ. P.
Even when not retained, treating physicians must be disclosed in accordance with
Rule 26(a) where they intend to offer opinions unrelated to treatment based on their special
knowledge. See Rangel v. Anderson, –F. Supp. 3d–, No. 2:15-CV-81, 2016 WL 4468558, at
*2 (S.D. Ga. Aug. 23, 2016) (“Treating physicians not disclosed as experts are limited to
testimony based on personal knowledge and may not testify beyond their treatment of a
patient.”); Wilson v. Taser Int’l, Inc., 303 F. App’x 708, 712 (11th Cir. 2008) (“[A] treating
physician may testify as a lay witness regarding his observations and decisions during
treatment of a patient, [but] once the treating physician expresses an opinion unrelated to
treatment which is ‘based on scientific, technical, or other specialized knowledge,’ that
witness is offering expert testimony. . . .”).
Although treating physicians need not provide the Rule 26(a)(2)(B) report since they
are not “retained or specially employed,” they still must disclose the subjects of their
testimony and a summary of the facts and opinions on which they are expected to testify.
Fed. R. Civ. P. 26(2)(C); Rangel, 2016 WL 4468558, at *2; Kondragunta v. Ace Doran
Hauling & Rigging Co., No. 1:11-CV-01094-JEC, 2013 WL 1189493, at *7 (N.D. Ga. Mar.
Here, Plaintiffs freely admit they were required but failed to disclose the expert
opinions of their treating physician witnesses by the September 1, 2016 deadline. (Doc. no.
24, p. 3.) However, they also claim they can cure this defect by furnishing expert disclosures
by October 3, 2016. (Id.)
When a party fails disclose an expert, a court should exclude that testimony unless
“the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). As an
alternative to this harsh sanction, a court may order payment of reasonable expenses caused
by the failure, inform the jury of the party’s failure, or impose other appropriate sanctions.
Fed. R. Civ. P. 37(c)(1)(A)-(C). In determining whether a failure to disclose is substantially
justified or harmless, courts weigh five factors:
the surprise to the party against whom the evidence would be offered;
the ability of that party to cure the surprise;
the extent to which allowing the evidence would disrupt the trial;
the importance of the evidence; and
the nondisclosing party’s explanation for its failure to disclose the evidence.
Rangel, 2016 WL 4468558, at *3; Kondragunta, 2013 WL 1189493, at *7; Cambridge Univ.
Press v. Becker, No. 1:08-CV-1425-0DE, 2010 WL 6067575, at *3 (N.D. Ga. Sept. 21,
Defendants contend this Court’s opinion in Rangel is “directly analogous to this
instant case”; however, considering the five factors, Plaintiffs’ failure to disclose here, unlike
in Rangel, is harmless. (Doc. no. 26, p. 6.) In contrast to Rangel, where six months had
passed since the disclosures were due and Defendants had already deposed Plaintiff’s expert,
only one month has passed since the disclosure deadline. Rangel, 2016 WL 4468558, at *1,
*3. Furthermore, the first Plaintiffs’ expert deposition is scheduled for October 19, 2016.
(Doc. no. 26, p. 6.) Thus, any surprise to Defendants is clearly curable by prompt disclosure
of Plaintiffs’ experts and summaries. In addition, there will be no disruption to the trial, as it
is still months away, and the expert treating physicians’ testimonies are of great importance
to the presentation of Plaintiffs’ case. (Doc. no. 24, p. 4.) Although Plaintiffs’ explanation
for its failure to disclose is wanting, the importance of the evidence and the ability to cure the
surprise outweigh this consideration.
Considering all the factors, Plaintiffs’ failure to
disclose was harmless provided they cure their mistake by promptly providing expert
As an alternative to exclusion, the Court may impose monetary sanctions for
Plaintiffs’ failure. See Fed. R. Civ. P. 37(c)(1)(A). Plaintiffs concede such sanctions are
appropriate. (Doc. no. 24, p. 4.) Accordingly, the Court ORDERS Defendants to submit an
itemization of their costs and attorneys’ fees related to this motion so that the Court may
impose appropriate monetary sanctions. Plaintiffs should have already made their expert
disclosures as it is well past the proposed October 3, 2016, disclosure date in their response.
However, if Plaintiffs have not done so, the Court ORDERS Plaintiffs to furnish Defendants
with the required expert summaries by October 21, 2016. The parties should contact the
Court to resolve any scheduling difficulties surrounding the previously scheduled October
19, 2016, deposition because of Plaintiffs’ delayed disclosure. In order to give Defendants
adequate time to review the disclosures, the Court extends the deadlines in this case in a
contemporaneous revised scheduling order.
Plaintiffs also seek an extension of time to file their response to Defendants’ motion.
(Doc. nos. 23, 24.) However, Plaintiffs filed their response on September 29, 2016, before
the time for a response expired on October 3, 2016. Therefore, Plaintiffs’ motion should be
DENIED AS MOOT.
For the reasons stated above, the Court GRANTS in part Defendants’ motion for
sanctions (doc. no. 22), DENIES Defendants’ request to exclude any potential expert
witnesses or expert testimony offered by Plaintiffs, ORDERS Plaintiffs to furnish expert
witness disclosures to Defendants by October 24, 2016, and by the same deadline ORDERS
Defendants to file an itemization of their costs and attorneys’ fees accrued in preparing and
filing their motion so that the Court may impose monetary sanctions. The Court DENIES
AS MOOT Plaintiffs’ Motion for Extension of Time to File a Response (doc. no. 23) and
EXTENDS remaining deadlines in a contemporaneous Revised Scheduling Order.
SO ORDERED this 18th day of October, 2016, at Augusta, Georgia.
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