Rangel v. Anderson

Filing 75

ORDER overruling Plaintiff's Tammy Rangel's Objection and/or 71 APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Chief Judge Lisa G. Wood on 11/3/2016. (ca)

Jin tl^e ?l9mtelt States!I3ts(trtct Court
for tfie ^ontj^em Btotrict of 4^eorgta
iirtmototcit Btbtoion
TAMMY RANGEL,

*
*

Plaintiff,

*
*

V.

*

CV 215-81

*

PAUL ANDERSON,
Defendant.

*
*
*
*
5
*

ORDER

Before the Court is Plaintiff Tammy Rangel's Objection to

and/or Appeal of the Magistrate Court's Order {Dkt. No. 71).

For

the reasons stated below. Plaintiff's objections are OVERRULED.
BACKGROUin)

This

case

arises

out

of

a

motor

vehicle

accident

occurred in Baxley, Georgia, on February 12, 2015.
2.

Plaintiff alleges that

vehicle,

causing

Defendant's

injury.

vehicle

Several

that

Dkt. No. 1 p.
rear-ended

physicians

her

treated

Plaintiff for neck and back pain after the accident, including
Dr. Patrick Karl, a pain management specialist.
deposed

on

March

11,

2016.

Dkt.

No.

34-2.

The

Dr. Karl was
deadline

to

deposed on March 11, 2016.
disclose testifying

Dkt. No. 34-2.

experts

was

November

The deadline to

10, 2015.

However,

Plaintiff did not identify Dr. Karl as an expert witness by that

date.

Dr.

Karl's

testimony

gave

many

expert

opinions,

including: (1) it is more probable than not that Plaintiff has a
nerve root impingement in her cervical spine; (2) it is more
likely than not that the February 2015 accident caused an acute
injury to Plaintiff's cervical region; (3) it is possible that
the February 2015 accident aggravated pre-existing degenerative
changes in Plaintiff's neck; and (4) it is more likely than not
that

the

February

2015

accident

exacerbated

Plaintiff's

existing neck problems and caused Plaintiff's back pain.

pre
Dkt.

No. 34-2, pp. 14-17.

Plaintiff did not provide a written report of Dr. Karl's

opinion, nor did she provide any summary or notice indicating
that Dr. Karl was an expert witness.
filed

a

testimony.

motion,

motion

Dkt.

finding

26(a)(2)(A)-(B),

in

limine

No.

34.

(1)
(2)

seeking

The

Defendant Paul Anderson
to

Magistrate

non-compliance

that

exclude

Plaintiff's

Judge

with
failure

Dr.

Karl's

granted

Federal
to

comply

the

Rule
with

Rule 26 was not ^^harmless" under Rule 37(c)(1), and (3) that Dr.

Karl's testimony was inadmissible under Daubert v. Merrell Dow
Pharmaceuticals,

Inc.,

509

U.S.

579

(1993).

objects to the Magistrate Judge's decision.

Plaintiff

now

LEGAL STAEDAKD

A district court reviewing a magistrate judge's discovery

order is, in general, limited by statute and rule to reversing
that order only if it is ^'clearly erroneous or contrary to law."
28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a).

high standard.

This is a very

As the Eleventh Circuit recently put it, ^Mt]o

be clearly erroneous, a decision must strike us as more than
just maybe or probably wrong; it must . . . strike us as wrong
with the force of a five-week old, unrefrigerated dead fish."
Cox

Enters.,

Inc.

v.

News-Journal

Corp.,

794

F.3d

1259,

1272

n.92 (11th Cir. 2015) (citation omitted).
DISCUSSION

Plaintiff objects to the Magistrate Judge's decision that:
(1) Plaintiff's witness disclosure was not timely under Rule 26

and (2) Dr. Karl's testimony is inadmissible under Daubert.

The

Court notes the high standard a plaintiff must meet to satisfy
the

clearly

erroneous

standard.

Here,

the

Court

finds

that

Plaintiff fails to meet this standard and her objections will be
overruled.

The

Court

first

turns

Plaintiff's non-compliance
of

Dr.

parties

Karl's
the

with

testimony.

identity

of

to

the

Magistrate's

that

Rule 26 warrants the exclusion
party

any

finding

witness

must
it

disclose

may

use

at

to

other

trial

to

present evidence
705."

Fed.

accompanied

R.

by

under
Civ.

a

Federal Rule of Evidence 702, 703, or

P.

26(a)(2).

written

''MT]his

report—prepared

disclosure

and

signed

must be

by

the

witness—if the witness is one retained or specially employed to

provide expert testimony in the case or one whose duties as the
party's

employee

regularly

involve

giving

expert

testimony."

This report must contain:

(i) a complete statement of all opinions the witness
will express and the basis and reasons for them; (ii)
the

data

or

other

witness in forming

information

considered

by

the

them; (iii) any exhibits that will

be used to summarize or

support

them;

(iv)

the

witness's qualifications, including a list of all
publications authored in the previous ten years; (v) a
list of all other cases in which, during the previous
four years, the witness testified as an expert at

trial or by deposition; and (vi) a statement of the
compensation to be paid for the study and testimony in
the

case.

Fed. R. Civ. P. 26(a)(2)(B).

However, treating physicians may still comply with Rule 26
even without such written disclosures if they comply with Rule

26(a)(2)(C).
disclose:

^'(i)

This
the

rule

requires

subject

matter

the
on

treating
which

physician

the

witness

to
is

expected to present evidence under Federal Rule of Evidence 702,
703, or 705; [and] (ii) a summary of the facts and opinions to
which the witness is expected to testify."

When a party

fails to disclose under Rule 26, the Court may still admit an

expert witness if admission will be ^^harmless."

Fed. R. Civ. P.

37(c)(1).

Plaintiff

does

not

contest that she

failed

to

report or summary under Rule 26(a)(2)(B) or (C).

provide

a

Instead, she

argues that her failure to comply with Rule 26 was ^"harmless."
Dkt. No. 71, p. 3 (citing Fed. R. Civ. P. 37(c)(1)).

In the past, other judges in this circuit have applied a
five-factor
disclosure

test
is

when

determining

harmless.

whether

Kondrauqunta

v.

an

Ace

insufficient

Doran

Hauling

&

Rigging Co., No. 1:ll-cv-01094, 2013 WL 1189493, at *7 (N.D. Ga.
Mar. 21, 2013); Cambridge

1425-ODE,

2010

WL

Univ. Press v. Becker, No., l:08-cv-

6067575,

at

*3 (N.D.

Ga.

Sept.

21,

2010).

These factors are:

(1)

the

evidence

surprise
would

be

to

the

offered;

party
(2)

against

the

whom

ability

of

the
that

party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing
party's explanation for its failure to disclose the
evidence.

Cambridge Univ. Press, 2010 WL 6067575, at *3.

The

Magistrate

Judge's

determination

that

Plaintiff's

insufficient disclosure was not harmless under these factors was

not

clearly

^'surprise"

erroneous.

element

First,

simply

Plaintiff

because

Dr.

cannot

Karl

was

overcome

a

the

treating

physician.

The

Magistrate

Judge

found

that

while

Dr.

Karl

certainly had the ability to discuss his treatment, counsel for
defendant believed he would only testify as a non-expert.

No. 37. p. 6.

Dkt.

The simple fact of Dr. Karl's treating Plaintiff

did not put Defendant on notice that Dr. Karl would give expert
testimony.

Without a report or summary of Dr. Karl's opinions

and expected testimony, defense

counsel's lack of notice

inability

Karl's

to

prepare

considered harmless.

for

Dr.

deposition

cannot

and
be

Goodbys Creek, LLC v. Arch Ins. Co., No.

3:07-CV-947, 2009 WL 1139575, at *3 (M.D. Fla. Apr. 27, 2009)

(^^[E]ven if a deposition of every expert were taken by Defendant
as a matter of course, furnishing it with a woefully inadequate

report adversely impacts upon its ability to prepare for and
conduct the deposition.").

The Magistrate Judge found that the second element, ability
to

cure

the

surprise,

was

not

met

for

the

same

reasons.

Specifically, no amount of post-deposition cure would have the
same effect as allowing defense counsel a

examination of an expert witness.

See id.

well-prepared cross

In short, the bell

has been rung and Plaintiff cannot now unring it.
Third, the Magistrate Judge found that allowing Dr. Karl's
testimony

would

disrupt

the

litigation

decision was not clearly erroneous.

go to trial on November 15, 2016.

of

this

case.

This

This case is scheduled to

If the Court were to allow

Dr. Karl's expert testimony with no prior notice to Defendant,
Defendant should be allowed to call his own expert to rebut Dr.

Karl's

testimony.

This

certainly

would

delay

the

Court's

scheduling order as no such expert has yet been presented.

Rule

26

such

and

this

Court's

scheduling

orders

seek

to

disruptions in the orderly flow of litigation.
Hartford

Life

&

Accident

Ins.

Co.,

No.

avoid

See Rogers v.

12-0019-WS-B,

2395194, at *1 n.3 (S.D. Ala. June 22, 2012)

2012

WL

r[A] scheduling

order is not a frivolous piece of paper, idly entered, which can
be cavalierly disregarded. . . . Disregard of the order

would

undermine the court's ability to control its docket, disrupt the

agreed-upon course of the litigation, and reward the indolent
and the cavalier." (quoting B.T. ex rel. Mary T. v. Dep't of
Educ., State of Haw., 637 F. Supp. 2d 856, 867 (D. Haw. 2009)).
Therefore,

allowing

a

new

expert

at

this

late

stage

of

the

litigation would have a disruptive effect.

Fourth,

the

Magistrate

Judge

found

that

Dr.

Karl's

testimony was not so important as to excuse Plaintiff s lack of
disclosure.

The Court agrees.

Notably, Dr. Karl's testimony

will not be excluded in its entirety at trial.

The parties have

agreed that Dr. Karl can still testify as to the factual basis
of

his

treatment

of

Plaintiff.

Dkt.

No.

67,

p.

8.

This

mitigates much of the harm the exclusion of his expert testimony
could cause to Plaintiff's case.

Finally, the Magistrate Judge found that Plaintiff's excuse
for failing to meet the Rule 26 deadline was insufficient.

The

only proffered excuse before the Magistrate Judge was that Dr.
Karl had only treated Plaintiff twice and Plaintiff was unsure
if Dr. Karl would be used as an expert witness.
pp. 3-4.

The Magistrate Judge's decision was correct.

any standard of review it should be upheld.
that

Dkt. No. 42,

this

case

might

require

experts.

Under

Plaintiff was aware

Furthermore,

Dr.

Karl

treated her months before filing this action, and there were no

obstacles in presenting a summary of his expert testimony before
he was deposed.

The Magistrate Judge used sound reasoning as to why none of
the factors favoring a harmless error under Rule 37 are present
here.

Thus,

the

Court

overrules

Plaintiff's

objections.

As

such, the Court finds it unnecessary to discuss the Magistrate's

gatekeeping

decision

under

Daubert,

as

the

expert

disclosure

requirements under Rule 26 were not met.
CONCLUSION

For the reasons set forth above, it is hereby ordered that

Plaintiff

Tammy

Rangel's

Objection

to

and/or

Appeal

Magistrate Court's Order {Dkt. No. 71) is OVERRULED.

of

the

so ORDERED, this 3rd day of November, 2016

LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA