Piskorowski v. Target Corporation

Filing 27

ENTER MEMORANDUM OPINION AND ORDER: Given the error in the Court's prior order, the motion for reconsideration 21 is granted. Plaintiff is directed to comply with the requirements of Rule 26(a)(2)(C) in regard to Dr. Butlerby February 14, 2 014. The parties shall submit a proposed revised discovery schedule by February 21, 2014 taking account of any further fact or expert discovery that they believe is necessary. Signed by the Honorable Robert M. Dow, Jr on 1/29/2014. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KIMBERLY PISKOROWSKI
Plaintiff,
v.
TARGET CORPORATION, a Minnesota
Corporation,

Defendant.

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Case No. 12 CV 8865
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s motion to reconsider [21] the Court’s October 17, 2013
Order requiring Plaintiff’s treating physician to produce a written report pursuant to Federal Rule
of Civil Procedure 26(a)(2)(B). For the reasons set forth below, Plaintiff’s motion [21] is
granted.
I.

Background

During the status hearing held on October 17, 2013, Plaintiff’s counsel informed the
Court that she intended to offer medical opinions from Plaintiff’s treating physician, Dr. Jesse
Butler, beyond diagnosis and treatment. In response, the Court instructed Plaintiff’s counsel that
the physician would need to provide a written expert report pursuant to Rule 26(a)(2)(B).

In her motion for reconsideration, Plaintiff contends that the Seventh Circuit’s guidance
to which the Court referred (see Meyers v. National R.R. Passenger Corp., 619 F.3d 729 (7th
Cir. 2010)) has been superseded by the 2010 amendments to the Federal Rules of Civil

Procedure, which no longer require treating physicians to submit reports in most circumstances.
Plaintiff asks that the Court reconsider its October 17, 2013 ruling and, instead, order Dr. Butler
to submit a Rule 26(a)(2)(C) disclosure statement.

II.

Analysis

Rule 26(a)(2) governs expert reports. Relevant here, the rule states:
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party
must disclose to the other parties the identity of any witness it may use at trial to
present evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated
or ordered by the court, this disclosure must be accompanied by a written report –
prepared and signed by the witness – if the witness is one retained or specifically
employed to provide expert testimony in the case or one whose duties as the
party’s employee regularly involve giving expert testimony.
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated
or ordered by the court, if the witness is not required to provide a written report,
this disclosure must state:
(i) the subject matter on which the witness 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.
As Rule 26(a)(2) demonstrates, all witnesses who are to give expert testimony must be
disclosed, while only witnesses “retained or specifically employed to provide expert testimony”
are required to submit an expert report in compliance with Rule 26(a)(2)(B). See Banister v.
Burton, 636 F.3d 828, 833 (7th Cir. 2011). Experts who are not required to submit a report must
provide a disclosure statement pursuant to Rule 26(a)(2)(C).
A treating physician is an expert witness when he testifies about opinions formed about a
patient. See Meyers, 619 F.3d at 734-35. “It is generally agreed that a treating physician who

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testifies about his observations during treatment is not required to file an expert report.”
Coleman v. American Family Mutual Ins. Co., 274 F.R.D. 641, 644 (N.D. Ind. 20110) (citing
cases). But the issue is more complex when the physician seeks to give an opinion about the
cause of a plaintiff’s injury, an issue the Seventh Circuit addressed in Meyers. Interpreting Rule
26(a)(2)(B), the court of appeals held that whether or not a treating physician who offers an
injury-causation opinion must file an expert report turns on whether the treating physician
determined the cause of the plaintiff’s injury during or after treatment. Id.; see also Coleman v.
American Family Mutual Ins. Co., 274 F.R.D. 641, 644 (N.D. Ind. 2011). Based on Meyers and
consistent with the Court’s October 17, 2013 order, Defendant in this case argues that Dr. Butler
must submit an expert report if he intends to offer opinions that he formed after treating Plaintiff.
Plaintiff is correct that the post-Meyers amendment to Rule 26, effective December 2010,
changes the landscape. Although the amendments did not alter who was required to file an
expert disclosure, subpart C was added, requiring summary disclosures in lieu of expert reports
when an expert was not retained or specifically employed to give testimony. Rule 26(a)(2)(C);
Coleman, 274 F.R.D. at 645. The Committee Notes explain that frequent examples of experts
who are required to submit summary disclosures rather than expert reports “include physicians
and other health care professionals.” Rule 26 (Committee Notes, 2010 amendments). The
amendments to Rule 26, therefore, seek “to clarify the distinction between an expert retained to
testify and one who will testify for reasons independent of trial preparation.” Coleman, 274
F.R.D. at 645. Where, as here, Plaintiff retained her treating physician for the purpose of
receiving medical attention, and not for the express purpose of giving expert testimony, Rule 26
dictates that the physician need not file an expert report. Id. Instead, Dr. Butler must only file a
disclosure statement in accord with Rule 26(a)(2)(C).

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III.

Conclusion

Given the error in the Court’s prior order, the motion for reconsideration [21] is granted.
Plaintiff is directed to comply with the requirements of Rule 26(a)(2)(C) in regard to Dr. Butler
by February 14, 2014. The parties shall submit a proposed revised discovery schedule by
February 21, 2014 taking account of any further fact or expert discovery that they believe is
necessary.

Dated: January 29, 2014

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Robert M. Dow, Jr.
United States District Judge

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