Collins v. Menard, Inc.

Filing 154

MEMORANDUM Opinion and Order: Defendant's Motion to Strike Plaintiff's Rule 26(a)(2)(C) Expert Disclosure of Dr. Harold Rees and Limit His Testimony (ECF No. 137 ) is granted in part and denied in part. See Memorandum Opinion and Order for further details. Signed by the Honorable Jeffrey T. Gilbert on 9/3/2019. Mailed notice. (dal, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

FRANCIS GECKER, solely as Chapter 7
Trustee for CYNTHIA COLLINS
Plaintiff,
No. 16 C 50153
v.
Magistrate Judge Jeffrey T. Gilbert
MENARD, INC. a/k/a MENARDS
Defendant.

MEMORANDUM OPINION AND ORDER
This case is before the Court on Defendant’s Motion to Strike Plaintiff’s Rule 26(a)(2)(C)
Expert Disclosure of Dr. Harold Rees and Limit His Testimony [ECF No. 137]. For the reasons
discussed below, Defendant’s Motion is granted in part and denied in part.
BACKGROUND
Plaintiff alleges she was injured when a shopping cart made contact with her hip outside
of a Menards home improvement store in 2014. While the fact that a cart struck Plaintiff is not in
dispute, the parties disagree as to the nature, cause, and extent of Plaintiff’s injuries, including
whether a right hip replacement performed by Dr. Harold Rees, M.D., about five years after the
accident was causally related to it.
Defendant deposed Dr. Rees in April of 2019. Months after that deposition, Plaintiff served
a delayed disclosure for Dr. Rees under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure.
That disclosure stated Dr. Rees would give expert testimony at trial both as Plaintiff’s treating
physician and with respect to the cause of Plaintiff’s right hip injury. Defendant now asks that
Plaintiff’s Rule 26(a)(2)(C) disclosure be stricken as untimely and because it is not consistent with

Dr. Rees’s deposition testimony. It is not clear what Defendant hopes to accomplish by striking
the Rule 26(a)(2)(C) disclosure, as Dr. Rees has been deposed and Defendant does not seek to bar
Dr. Rees from testifying at trial. Defendant also challenges the substantive admissibility of Dr.
Rees’s causation testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993). The Court addresses Defendant’s arguments in turn.
ANALYSIS
I. Plaintiff’s Rule 26(a)(2)(C) Disclosures
Pursuant to the discovery schedule set by the Court and agreed upon by the parties, Plaintiff
was to make her Rule 26(a)(2) disclosures by March 27, 2019. With respect to Dr. Rees, Plaintiff
did not do so. Yet Defendant went forward with Dr. Rees’s deposition on April 2, 2019, despite
not having received the Rule 26(a)(2)(C) disclosure of Dr. Rees’s opinions and the basis for them.
On July 16, 2019, more than three months after Defendant deposed Dr. Rees, Plaintiff served her
Rule 26(a)(2)(C) disclosure. Defendant now complains that Plaintiff’s disclosure does not conform
to Dr. Rees’s prior deposition testimony in some respects and asks that the disclosure be stricken.
Neither party disputes that Plaintiff’s Rule 26(a)(2)(C) disclosure regarding Dr. Rees was
untimely. That disclosure was not only produced after the Court’s deadline, but after Dr. Rees had
been deposed. The question for the Court is what consequence, if any, is appropriate for that
untimely disclosure where Defendant had a right to insist on receiving the disclosure before Dr.
Rees’s deposition, pursuant to the Court’s scheduling order, but chose not to do so. While
Defendant says Plaintiff’s late Rule 26(a)(2) disclosure for Dr. Rees conflicts with his prior
deposition testimony, it is not clear to the Court there is a material conflict between the two. But
the Court need not resolve that issue to rule on Defendant’s Motion. Further, even if any conflict
exists, that certainly is a risk of which Defendant was aware when it chose to proceed with Dr.

2

Rees’s deposition having not received the Rule 26(a)(2)(C) disclosure it was entitled to receive
before taking the deposition.
Under Federal Rule of Civil Procedure 37(c), “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information
or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or harmless.” The Seventh Circuit has likewise affirmed that the exclusion
of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless the nondisclosure was justified or harmless. Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir.
1996). In assessing the harmlessness of a Rule 26 violation, courts are to consider “(1) the prejudice
or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure
the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness
involved in not disclosing the evidence at an earlier date.” Westefer v. Snyder, 422 F.3d 570, 585
n. 21 (7th Cir.2005) (citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)).
The purpose of the Rule 26 expert disclosure requirements is to prevent surprise or
prejudice to the opposing party. Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000) (expert
discovery rules “are designed to aid the court in its fact-finding mission by allowing both sides to
prepare their cases adequately and efficiently and to prevent the tactic of surprise from affecting
the outcome of the case”). Here, Defendant does not argue that it was surprised by anything Dr.
Rees said in his deposition, suggesting instead that it was surprised by the later served Rule
26(a)(2)(C) disclosure. Yet this supposed surprise ultimately is harmless under the circumstances
of this case, especially in terms of Defendant’s ability to prepare for trial.
Based on the deposition transcript, Defendant had received all relevant reports and medical
records, including Dr. Rees’s curriculum vitae, prior to deposing Dr. Rees. Even without the proper

3

Rule 26 disclosure, the transcript also shows Defendant was aware Dr. Rees performed Plaintiff’s
right hip replacement and that he had formed an opinion as to the likely cause of her injury based
on his treatment and the patient’s medical history provided to him. Defendant also had already
retained a rebuttal expert, Dr. William J. Hopkinson, 1 to respond to Dr. Rees’ anticipated causation
opinion. With all the above information in hand, Defendant then took Dr. Rees’s deposition on
April 2, 2019. Therefore, in this case, the late Rule 26 disclosure did not cause Defendant to “miss
its opportunity to disqualify the expert, retain rebuttal experts, or hold depositions for an expert.”
Tribble v. Evangelides, 670 F.3d 753, 759-60 (7th Cir. 2012). In fact, through Dr. Rees’s
deposition, Defendant arguably learned more information than it would have received in a typical
Rule 26(a)(2)(C) disclosure about the basis and scope of Dr. Rees’ expert opinion. Plaintiff’s
failure to provide a timely Rule 26 disclosure for Dr. Rees, therefore, has not stymied Defendant’s
ability to mount a defense to Plaintiff’s claims in this case. All parties are on notice as to the
anticipated subject matter and scope of Dr. Rees’s potential trial testimony, making Plaintiff’s
failure to timely disclose under Rule 26 harmless in this particular instance.
Other courts agree that untimely Rule 26 disclosures may be harmless where the opposing
party had an opportunity to depose the expert or was otherwise aware of the substance of the
expert’s opinion. See generally, Banister v. Burton, 636 F.3d 828, 833-34 (7th Cir. 2011) (“even
if a report was necessary under [Rule 26(a)(2)(B)], the failure to file one was clearly harmless
because [plaintiff] wasn’t surprised by the doctor’s testimony—he heard it before in the state trial.
Also, [plaintiff] provides no evidence that the failure to file the report was in bad faith.”);
Spearman Indus. v. St. Paul Fire & Marine Ins. Co., 138 F. Supp. 2d 1088, 1094 (N.D. Ill. 2001)

1

Defendant retained Dr. William J. Hopkinson, M.D., to conduct an independent medical examination of
Plaintiff and opine as to the cause of Plaintiff’s injuries. Dr. Hopkinson is also a board-certified orthopedic
surgeon and Surgeon-in-Chief at Loyola University Medical Center.

4

(where plaintiff failed to serve an expert report under Rule 26 for one of its experts, the violation
was harmless because plaintiff previously disclosed the expert’s existence, there was no evidence
of plaintiff’s bad faith in failing to serve the report, defendant neither objected to having not
received the Rule 26 disclosures nor filed a Rule 37 motion to exclude the expert’s testimony, and
defendant deposed the expert prior to trial).
Similarly, in Kondragunta v. Ace Doran Hauling & Rigging Co., 2013 WL 1189493 (N.D.
Ga. 2013), the plaintiff’s failure to make appropriate Rule 26(a)(2)(C) disclosures was harmless
where the names of the experts and general subject matter of their testimony previously had been
disclosed to the defendants. In declining to strike the experts’ testimony, the court focused, in part,
on the fact that the defendants “had the ability to complain, and thereby cure this surprise, prior to
the expiration of expert discovery, by advising plaintiff that his disclosures did not comply with
the rule and by requesting more specific disclosures” but did not do so. Id. at *8. Here, Defendant
knew Plaintiff had not made her Rule 26(a)(2)(C) disclosure for Dr. Rees and, as in Kondragunta,
never moved to force Plaintiff to do so, either before or after Dr. Rees’s deposition. Rather,
Defendant affirmatively chose to depose Dr. Rees without the required disclosure in hand, which
seriously weakens Defendant’s ability now to complain about that state of affairs.
Defendant’s real complaint seems to be that when Plaintiff finally made her Rule
26(a)(2)(C) disclosure for Dr. Rees, that disclosure, in Defendant’s view, was not consistent with
the testimony Dr. Rees gave at his deposition. Again, though, that is a risk Defendant ran by going
forward with the deposition without the Rule 26(a)(2)(C) disclosure. As noted above, the Court
does not necessarily agree with Defendant’s assessment that a conflict exists. There does not
appear to be a material discrepancy between Dr. Rees’s deposition testimony and the Rule

5

26(a)(2)(C) disclosure, other than that the Rule 26(a)(2)(C) disclosure is somewhat broad, general,
and conclusory in certain areas where the deposition testimony is a bit more specific.
Moreover, even if the late Rule 26(a)(2)(C) disclosure ultimately does conflict with Dr.
Rees’s deposition testimony, the disclosure itself is not admissible in evidence. It is a discovery
vehicle intended to provide information before a deposition or trial testimony. By not striking the
Rule 26(a)(2)(C) disclosure, the Court effectively is constraining Dr. Rees’s trial testimony to the
opinions contained in that disclosure, at least at the outer limits. In addition, if Dr. Rees strays
from, or testifies inconsistent with, his deposition testimony at trial, Defendant still has the tools
of cross-examination at its disposal, including using the transcript of Dr. Rees’s deposition
testimony under oath to impeach him consistent with the Federal Rules of Evidence. If Dr. Rees
testifies at trial in a manner consistent with his deposition testimony, Defendant appears to have
no need to use the Rule 26(a)(2)(C) disclosure at trial. Finally, if either party seeks to use the Rule
26(a)(2)(C) disclosure at trial, the Court can address that situation in the context in which it arises.
While any detriment Defendant suffered from not having Plaintiff’s Rule 26(a)(2)(C)
disclosure before Dr. Rees’s deposition was caused, in large part, by Defendant’s decision to go
forward with that deposition without the disclosure in hand, the Court does not mean to excuse
Plaintiff’s failure to serve the disclosure when she was required to do so by court order. That was
wrong. But it was Defendant’s responsibility to bring that default to the Court’s attention if it
wanted to invoke the remedies provided in the Federal Rules of Civil Procedure for such a foul.
Just as Plaintiff should have complied with her disclosure requirements under the Federal Rules
of Civil Procedure, so too is Defendant confined by the remedies the Rules provide – remedies
which it did not invoke. To that end, it is worth noting that Defendant does not ask the Court for
the remedy that, if raised at the appropriate time, would have been available to it: barring Dr. Rees

6

from testifying at trial. Rather, Defendant apparently only wants to limit Dr. Rees to what he said
during his deposition. But the Court is not inclined to provide Defendant a free pass for not timely
raising the Rule 26(a)(2)(C) disclosure issue and now allow Defendant to retroactively limit or
micromanage the permissible scope of Dr. Rees’s trial testimony on the eve of trial. And the
Federal Rules of Civil Procedure do not seem to provide the Court with a vehicle to do so.
The bottom line is that Plaintiff’s default does not seem to have prejudiced Defendant. If it
did, Defendant had ability to avoid that situation by timely invoking the remedies provided by the
Federal Rules of Civil Procedure. Just as the deposition went forward without Plaintiff’s Rule
26(a)(2)(C) disclosure, so too will the trial be undeterred by Plaintiff’s untimely disclosure served
after Dr. Rees was deposed. For all these reasons, the Court declines to strike Plaintiff’s untimely
Rule 26(a)(2)(C) disclosure regarding Dr. Rees.
II. Admissibility of Dr. Rees’s Testimony Under Rule 702 and Daubert
The issue of Plaintiff’s untimely Rule 26(a)(2)(C) disclosure aside, Defendant urges the
Court to bar portions of Dr. Rees’s testimony that it considers “speculative” and unreliable. [ECF
No. 137, p. 5]. Defendant argues that while Dr. Rees may be qualified as an expert witness and his
testimony may be relevant to the claims and defenses in this case, he does not base his causation
opinion on objective facts or data, making that specific opinion inadmissible at trial. For the
reasons discussed below, Dr. Rees’s causation opinion, with limited exception, passes Daubert
muster and may be presented to the jury.
Rule 702 and the United States Supreme Court’s decision in Daubert govern the
admissibility of expert testimony in federal court. Hall v. Flannery, 840 F.3d 922, 926 (7th Cir.
2016). The familiar two-step Daubert framework allows admission of expert testimony that is
“relevant to a fact in issue, is based on sufficient facts or data, and is the product of reliable

7

scientific or other expert methods that are properly applied.” Stuhlmacher v. Home Depot U.S.A.,
Inc., 774 F.3d 405, 409 (7th Cir. 2014); see also, Higgins v. Koch Dev. Corp., 794 F.3d 697, 704
(7th Cir. 2015) (“Rule 702 and Daubert require the district court to determine whether proposed
expert testimony is both relevant and reliable.”). The district court is the “gatekeeper” of expert
testimony but must be mindful of the fact that “the key to the gate is not the ultimate correctness
of the expert’s conclusions,” but “the soundness and care with which the expert arrived at her
opinion.” Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013).
A court will admit expert testimony only where the expert “(i) is qualified to offer opinion
testimony under Rule 702, (ii) has employed a reliable methodology, (iii) proposes to offer
opinions that follow rationally from the application of his knowledge, skill, experience, training,
or education, and (iv) presents testimony on a matter that is relevant to the case at hand, and thus
helpful to the trier of fact.” Mintel Int’l Grp., Ltd. v. Neergheen, 636 F. Supp. 2d 677, 684–85
(N.D. Ill. 2009). The proponent of expert testimony bears the burden of proving the testimony is
admissible. Fail-Safe, L.L.C. v. A.O. Smith Corp., 744 F. Supp. 2d 870, 887 (E.D. Wis. 2010).
An expert may be qualified “by knowledge, skill, experience, training or education” and
need not have any “particular credentials.” FED. R. EVID. 702; Tuf Racing Prod., Inc. v. Am. Suzuki
Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000). The court must consider “‘a proposed expert’s
full range of practical experience as well as academic or technical training when determining
whether that expert is qualified to render an opinion in a given area.’” Trustees of Chicago Painters
& Decorators Pension, Health & Welfare, & Deferred Sav. Plan Trust Funds v. Royal Int’l
Drywall & Decorating, Inc., 493 F.3d 782, 788 (7th Cir. 2007) (quoting Smith v. Ford Motor Co.,
215 F.3d 713, 718 (7th Cir. 2000)). When assessing whether an expert is qualified, the court is
“not concerned with the witness’s general qualifications.” Hall, 840 F.3d at 926. Instead, the court

8

examines whether the expert has the necessary qualifications to support “‘each of the conclusions
he draws.’” Id. (quoting Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010)). In other words, the
expert must be “qualified to offer opinions in the specific area of his or her proposed testimony.”
Bone Care Int’l LLC v. Pentech Pharm., Inc., 2010 WL 3928598, at *1 (N.D. Ill. 2010).
Courts have broad latitude when deciding whether an expert’s testimony is reliable.
Higgins, 794 F.3d at 704. Reliability involves, “among other things: (1) whether the proffered
theory can be and has been tested; (2) whether the theory has been subjected to peer review; (3)
whether the theory has been evaluated in light of potential rates of error; and (4) whether the theory
has been accepted in the relevant scientific community.” Baugh v. Cuprum S.A. de C.V., 845 F.3d
838, 844 (7th Cir. 2017). To satisfy reliability, an expert may not “simply assert[s] a ‘bottom line’”
or base her opinion on “subjective belief or speculation.” Metavante Corp. v. Emigrant Sav. Bank,
619 F.3d 748, 761 (7th Cir. 2010). Rather, an expert’s testimony must demonstrate “the same level
of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 153 (1999).
The relevance standard for expert testimony is similarly liberal. Hale v. State Farm Mut.
Auto. Ins. Co., 2016 WL 6947065, at *2 (S.D. Ill. 2016). Simply put, an expert’s testimony must
“assist[] the jury in determining any fact at issue in the case.” Stuhlmacher, 774 F.3d at 409. If
“the jury is able to evaluate the same evidence and is capable of drawing its own conclusions,”
then the expert’s testimony is not helpful. Sanders v. City of Chicago Heights, 2016 WL 4398011,
at *4 (N.D. Ill. 2016).
The court’s application of these admissibility standards “is not intended to supplant the
adversarial process.” Ortiz v. City of Chicago, 656 F.3d 523, 536 (7th Cir. 2011). Even “shaky”
testimony may satisfy Rule 702 and Daubert, Bielskis v. Louisville Ladder, Inc., 663 F.3d 887,

9

894 (7th Cir. 2011), as it ultimately is for the jury to determine the accuracy of admissible expert
evidence that has been “tested” through “‘vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof.’” Lapsley v. Xtek, Inc., 689 F.3d 802, 805
(7th Cir. 2012) (quoting Daubert, 509 U.S. at 596).
Dr. Rees’s qualifications, though not in dispute, inform the Court’s analysis of the types of
opinions he may render consistent with Daubert. Dr. Rees received his bachelor’s degree in 1995
from the University of Pennsylvania, followed by his medical degree at Temple University in
2002. He is a board-certified orthopedic surgeon and associate professor at Loyola University
Medical Center, where he has practiced in his capacity as an orthopedic surgeon for over a decade.
Dr. Rees’s medical practice focuses primarily on treatment of hip and knee osteoarthritis with joint
replacement surgery and he is well-published in this area.
On February 27, 2019, Dr. Rees performed a right total hip arthroplasty on Plaintiff. Based
on Dr. Rees’s deposition and Plaintiff’s delayed Rule 26(a)(2)(C) disclosure, Dr. Rees primarily
intends to testify regarding the nature and extent of Plaintiff’s right hip injury and the medical
treatment he provided. More controversially, Plaintiff also wants Dr. Rees to testify that Plaintiff’s
right hip injury is causally related to the accident at Menards, an opinion Defendant characterizes
as too “speculative” under Daubert to be presented to a jury.
In reviewing Dr. Rees’s deposition transcript, the Court is mindful that even “shaky”
testimony may satisfy Rule 702 and pass muster under Daubert. Bielskis, 663 F.3d at 894. Daubert
tests an expert’s methodology, not the ultimate strength of the expert’s opinion. Id. Dr. Rees’s
methodology here was not fatally unsound, insofar as he based his causation opinion on a patient
history he received directly from Plaintiff, as well as his review of Plaintiff’s medical history, to
the extent it was available to him. Specifically, Dr. Rees reviewed arthroscopic pictures from

10

Plaintiff’s prior surgery in 2015 and x-rays taken at Dr. Rees’s office in anticipation of Plaintiff’s
medical treatment. While there certainly are additional records Dr. Rees could have reviewed,
under Daubert, he need not review each and every fact available in Plaintiff’s case for his opinion
to be admissible; “only a ‘sufficient’ amount is required.” Hoskins v. Gunn Trucking, 2010 WL
4000123 (N.D. Ind. 2010) (citing FED. R. EVID. 702(1)). The oral history Dr. Rees received from
Plaintiff, coupled with own medical examination of Plaintiff, was sufficient to render a causation
opinion based on his years of education, training, and medical experience.
To the extent Defendant believes Dr. Rees did not have all the facts he should have had
when he formed his causation opinion, Defendant is well-poised for precisely the type of “vigorous
cross-examination” Daubert encourages. Lapsley, 689 F.3d at 805. Dr. Rees himself admitted he
was provided a relatively limited medical history upon which to rely in forming his opinion. [ECF
No. 137-2, p. 70-72] (“Well, it’s hard for me to know one way or another. It sounds like [Dr.
Hopkinson] had a lot more information to – to base his opinion.”) (“As far as [causation of the
incident] goes, I mean, you know, it sounds like [Dr. Hopkinson] has more information, and so his
opinion certainly may have a little more education in it as far as that goes. Again, I just go off of
what the patient tells me.”). But even that limited medical history was sufficient to treat Plaintiff’s
medical condition and form a relevant and reliable opinion as to the cause of Plaintiff’s right hip
injury. Under Daubert, any shortcomings Defendant perceives in Dr. Rees’s causation opinion, or
the facts upon which he relied in coming to that opinion, are matters that go to the weight, not the
admissibility, of his testimony. See, e.g., Walker v. Soo Line R.R. Co., 208 F.3d 581, 589 (7th Cir.
2000) (an expert’s reliance on faulty information is a matter to be explored on cross-examination;
it does not go to admissibility). The Court therefore will not prevent Dr. Rees from testifying to
opinions that, in Defendant’s view, are entitled to little weight because they are not based on

11

sufficient information. That is fodder for cross-examination and argument to the jury, not for a
motion to in limine to bar that testimony completely.
Defendant also appears to challenge Dr. Rees’s ability to apply his decades of experience
as an orthopedic surgeon to the facts of Plaintiff’s case in forming his causation opinion. However,
Rule 702 specifically allows a witness to be “qualified as an expert by knowledge, skill,
experience, training, or education.” Metavante Corp., 619 F.3d at 761 (citing FED.R.EVID. 702
(emphasis added)). “An expert’s testimony is not unreliable simply because it is founded on his
experience rather than on data.” Id.
The Court will grant Defendant’s Motion in two respects, however. To the extent Dr. Rees
was asked to opine during his deposition about the amount of force required to cause an injury to
someone in Plaintiff’s position at the time of the accident, that opinion is beyond the scope of Dr.
Rees’s qualifications. [ECF No. 137-2, p. 55-57]. Dr. Rees admitted as much when he was asked
to provide an opinion on this subject during his deposition. [ECF No. 137-2, p. 56] (“I’m certainly
not an expert on, you know, forces of – you know, how much force it takes.”). The Court accepts
Dr. Rees’s admitted lack of expertise in this area and will bar him from testifying at trial regarding
the forces exerted during the accident involving Plaintiff.
Furthermore, Defendant expresses concern that Dr. Rees will attempt to testify regarding
the cause of injuries he did not treat and of which he has no knowledge, such as injuries to
Plaintiff’s left hip. But that is not the Court’s reading of Dr. Rees’s deposition testimony or of
Plaintiff’s Rule 2(a)(2)(C) disclosure for Dr. Rees. [ECF No. 137-1, p. 1] (“[Dr. Rees] will also
testify and give an opinion that all the injuries he treated the plaintiff for are causally connected to
the occurrence the plaintiff was involved in on April 29, 2014…) (emphasis added). Dr. Rees
himself readily admits he did not treat, or review any records related to, Plaintiff’s other injuries,

12

and cannot offer any opinion as to their cause or treatment. [ECF No. 137-2, p. 22-24]. The Court
therefore agrees with Defendant – and Dr. Rees himself, it seems – that Dr. Rees cannot testify at
trial regarding the cause or treatment of any injury Plaintiff suffered, except with respect to her
right hip. Dr. Rees therefore is barred from doing so at trial.
CONCLUSION
For all the reasons discussed above, Defendant’s Motion to Strike Plaintiff’s Rule
26(a)(2)(C) Expert Disclosure of Dr. Harold Rees and Limit His Testimony [ECF No. 137] is
granted in part and denied in part. Defendant’s Motion is denied to the extent Defendant asks the
Court to strike Plaintiff’s untimely Rule 26(a)(2)(C) disclosure for Dr. Rees and as to Defendant’s
Daubert challenge to Dr. Rees’s testimony about the cause of any injury to Plaintiff’s right hip.
Defendant’s Motion is granted to the extent Defendant has raised a Daubert challenge to Dr. Rees’s
proposed testimony about the amount of force required to cause an injury to someone in Plaintiff’s
position at the time of the accident, and as to any testimony by Dr. Rees regarding the treatment
or cause of any injuries Plaintiff suffered beyond the right hip condition that Dr. Rees treated. Dr.
Rees will be permitted to testify at trial subject to the limitations described in this Memorandum
Opinion and Order.
It is so ordered.

___________________________________
Jeffrey T. Gilbert
United States Magistrate Judge
Dated: September 3, 2019

13