O'Leary v. Kaupas et al

Filing 241

WRITTEN Opinion signed by the Honorable Charles P. Kocoras on 7/11/2012: Defendant Kaupas's motion (Doc 234 ) to strike plaintiff's expert disclosures is denied. Parties are given to August 31, 2012 to file the Final Pretrial Order - Sho rt Form (www.ilnd.uscourts.gov/home/JUDGES/KOCORAS/pto-shortform.pdf), and proposed voir dire. Counsel are to meet, confer and agree on jury instructions to the best of their ability. Seventh Circuit jury instructions are preferred. Proposed jury instructions are also due by August 31, 2012. (For further details see minute order.) Mailed notice(sct, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Charles P. Kocoras

CASE NUMBER

08 C 7246

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

July 11, 2012

O’Leary vs. Kaupas et al

DOCKET ENTRY TEXT

Defendant Kaupas’s motion (Doc [234]) to strike plaintiff’s expert disclosures is denied. Parties are given to
August 31, 2012 to file the Final Pretrial Order - Short Form
(www.ilnd.uscourts.gov/home/JUDGES/KOCORAS/pto-shortform.pdf), and proposed voir dire. Counsel are
to meet, confer and agree on jury instructions to the best of their ability. Seventh Circuit jury instructions are
preferred. Proposed jury instructions are also due by August 31, 2012.

O[ For further details see text below.]

Docketing to mail notices.

ORDER
Defendant Paul Kaupas (“Kaupas”) moves this Court to bar the testimony of three of Plaintiff Marlis
O’Leary’s (“O’Leary”) expert witnesses because the witnesses failed to submit written reports under Federal Rule
of Civil Procedure 26(a)(2)(B). The three expert witnesses at issue – Doctors Susan Sherman, Cosme Lozano,
and Gayarthri Sundaresan – each treated O’Leary for post traumatic stress disorder (“PTSD”). Because Rule
26(a)(2)(C) does not require written reports of non-retained expert witnesses, Kaupas’s motion is denied.
Expert witnesses are required to provide a written report under Rule 26(a)(2)(B) only “if the witness is
one retained or specially employed to provide expert testimony.” Banister v. Burton, 636 F.3d 828, 833 (7th Cir.
2011). Treating physicians that testify about observations made during treatment are generally not required to
file an expert report under Rule 26(a)(2)(B). Coleman v. Am. Family Mut. Ins. Co., 274 F.R.D. 641, 644 (N.D.
Ind. 2011) (internal citations omitted). Kaupas argues that the three treating physicians are required to comply
with Rule 26(a)(2)(B) because they formed their opinions on the cause of O’Leary’s PTSD after they treated her,
rather than during the treatment. Kaupas relies on Meyers v. Nat’l Railroad Passenger Corp., in which the
Seventh Circuit held that a treating physician is required to submit a Rule 26(a)(2)(B) report if he plans on
testifying on the cause of an injury and if the physician did not determine the injury’s cause during treatment. 619
F.3d 729, 734-35 (7th Cir. 2010). A physician would not be required to submit a Rule 26(a)(2)(B) report if
causation was determined during treatment. Id.
The Advisory Committee on the Rules of Civil Procedure recognized the difficulty created by requiring
a non-retained expert, such as the treating physicians in Meyers and those at issue here, to file an expert disclosure
under Rule 26(a)(2)(B). The Committee responded in December 2010, months after Meyers was decided, by
adding Subpart C to Rule 26(a)(2). Fed. R. Civ. P. 26(a)(2)(C) Advisory Committee’s Note (2010) (“ACN”);
Coleman, 274 F.R.D. at 645. Subpart C requires less stringent disclosures with respect to expert witnesses who
are not retained. The ACN identifies “physicians or other health care professionals” as “frequent examples”of
08C7246 O’Leary vs. Kaupas et al

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ORDER
expert witnesses covered by the amendment because they are typically not retained. ACN (“Courts must take care
against requiring undue detail [from non-retained expert witnesses], keeping in mind that these witnesses have
not been specially retained and may not be as responsive to counsel as those who have.”); see also Coleman, 274
F.R.D. at 645 (Subpart C “appears to speak directly to experts, such as treating physicians, whose testimony often
blurs the line between fact and opinion.”).
The three witnesses in this case appear to be of the very kind that the Advisory Committee had in mind
when promulgating Subpart C – non-retained treating physicians providing expert testimony. In light of Subpart
C, the fact that O’Leary’s experts formed their opinions after treatment does not require an expert disclosure
under Rule 26(a)(2)(B). Rather, they need only provide a disclosure identifying the subject matter on which they
intend to present evidence, and a summary of the facts and opinions to which they are expected to testify. Fed.
R. Civ. P. 26(a)(2)(C). Because O’Leary’s physicians have done so, Kaupas’s motion to exclude their testimony
is denied.
Parties are given to August 31, 2012 to file the Final Pretrial Order - Short Form
(www.ilnd.uscourts.gov/home/JUDGES/KOCORAS/pto-shortform.pdf), and proposed voir dire. Counsel are
to meet, confer and agree on jury instructions to the best of their ability. Seventh Circuit jury instructions are
preferred. Proposed jury instructions are also due by August 31, 2012.

Date:

July 11, 2012
CHARLES P. KOCORAS
U.S. District Judge

08C7246 O’Leary vs. Kaupas et al

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