Walden v. Pier 1 Imports (U.S.), Inc. et al

Filing 36

ORDER GRANTING Defendant's oral motion to strike expert testimony. Any testimony by Plaintiff's treating physicians that express an expert opinion under Federal Rules of Evidence 701, 702 or 703 is hereby excluded. The treating physicians may only testify as fact witnesses. Signed by Judge Nancy J. Rosenstengel on 11/6/2017. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(jkb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WENDY WALDEN,
Plaintiff,
vs.
PIER 1 IMPORT (U.S.), INC.,
Defendant.

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Case No. 3:16-CV-1216-NJR-RJD

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court is Defendant Pier 1’s oral motion to strike expert
testimony made during the final pretrial conference on October 27, 2017. For the reasons
set forth below, the motion is granted.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Wendy Walden is claiming negligence against Defendant Pier 1 for
failing to maintain its retail facility in a safe condition, failing to inspect the facility,
failing to take care when displaying furniture and other goods, creating unsafe
conditions, and failing to properly train its employees. (Doc. 13-1, p. 1). Walden alleges
that as a direct and proximate result of one or more of the above negligent acts, she was
struck by a chair, causing her injury. (Doc. 13-1, p. 1). Pier 1 has raised thirteen
affirmative defenses including, but not limited to: failure to state a claim, comparative
fault, assumption of the risk, contributory negligence, statute of limitations, laches,
estoppel, unclean hands, and unjust enrichment. (Doc. 28, pp. 2-3).

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Pier 1 filed a motion in limine on October 6, 2017, asking this Court to exclude any
expert testimony offered on behalf of Walden. (Doc. 31, p. 3). Pier 1 alleges that Walden
has failed to disclose any of her trial witnesses as experts or provide any reports issued
by experts in violation of Federal Rule of Civil Procedure 26(a)(2)(A). (Doc. 31, p. 4). The
motion in limine was taken up at the pretrial conference as an oral motion to strike
expert testimony. Counsel for Walden admitted he has not filed a notice pursuant to
Rule 26(a)(2)(A) but argued the medical records of all treating physicians were provided
to Pier 1 during discovery and that they were identified as possible witnesses in
interrogatory answers.
ANALYSIS
A treating physician can provide expert testimony as long as he or she is disclosed
pursuant to Rule 26(a)(2). FED. R. CIV. P. 26(a)(2); Musser v. Gentiva Health Servs., 356 F.3d
751, 758 (7th Cir. 2004). Any testimony regarding opinions formed during or after
treatment is considered expert testimony, even if it is presented by a treating physician.
Coleman v. Am. Family Mut. Ins. Co., 274 F.R.D. 641, 644 (N.D. Ind. 2011) (citing Meyers v.
Nat’l R.R. Passenger Corp., 619 F.3d 729, 734-35 (7th Cir. 2010). Under Rule 37(c)(1), a
party that fails to identify a witness as required by Rule 26(a) may not use that witness to
supply expert testimony at a trial “unless the failure was substantially justified or is
harmless.” FED. R. CIV. P. 37(c)(1).
Failure to disclose a treating physician as an expert does not prevent the
physician from testifying as a fact witness. Higgins v. Koch Development Corp., 997
F.Supp.2d 924, 929 (S.D. Ind. 2014) (citing Musser, 356 F.3d at 758). Any part of a treating

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physician’s testimony that is based on scientific, technical or other specialized
knowledge, however, must be excluded because it is considered expert testimony. See
2000 Advisory Committee Note to Fed. R. Civ. P. 701.
Attaching medical records to discovery does not qualify as disclosure of an expert
under Rule 26(a)(2). The Seventh Circuit recently addressed this issue in Cripe v. Henkel
Corp., where the plaintiff argued attachment of records from six treating physicians to an
expert’s report provided sufficient disclosure of those treating physicians as expert
witnesses. 858 F.3d 1110, 1112 (7th Cir. 2017). Presumably, the plaintiff was arguing that
because the expert relied on those reports, the defense had notice the treating physician’s
expertise was being invoked. The Seventh Circuit disagreed, finding that “[a]ttaching
the report of a fact witness, such as a treating physician, to an expert’s report does not
turn the fact witness into an expert witness.” Id. Specifically, Judge Easterbrook noted
that “litigants should not have to guess who will offer expert testimony; they need
knowledge to conduct their own discovery and proffer responsive experts.” Id.
The Seventh Circuit also has rejected the idea that a defendant should be forced to
assume that each fact witness listed in discovery has the potential to become an expert.
Musser, 356 F.3d at 758. Rather, failure to disclose fact witnesses as experts prejudices the
opposing party because there are actions that can be taken against experts that are not
applicable to fact witnesses, such as excluding testimony under Daubert v. Merrell Dow
Pharmaceuticals, retaining rebuttal experts, and holding additional depositions. Id. at
758-59. Thus, even treating physicians and nurses must be specifically designated as
experts if they are to provide expert testimony. Id. at 759.

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Here, Walden is claiming that attachment of medical records to her Answer to
Plaintiff’s First Set of Interrogatories and Request for Production of Documents is
sufficient to qualify as disclosure of her experts. In the First Set of Interrogatories
Directed to Plaintiff, Pier 1 specifically asked Walden to identify each
Non-retained expert witness, including person whom plaintiff expects to
call at trial who may provide expert witness opinion testimony by
providing the expert’s name, address and field of expertise. State also any
opinions the expert will testify to at trial.
(Ex. A, pp. 2-3). Walden’s response stated she anticipated calling
treating physicians and/or their staff to testify about Plaintiff’s medical
treatment stemming from the occurrence, the reasonableness of the
medical treatment and bills incurred and/or to be incurred as a result of
the occurrence, the possible need for future treatment needed as a result of
the occurrence, plaintiff’s occurrence related limitations (including
ongoing and/or permanent pain and limitations related to the occurrence),
and any subjects identified in discovery responses and/or deposition
testimony.
(Ex. A, p. 4). Thus, Walden’s response simply stated she might call any one of her
treating physicians to talk about subjects that arguably include both facts and opinions.
None of those opinions were identified. As stated in Cripe, litigants should not have to
guess who the opposing party will offer as experts. 858 F.3d at 1112. Nothing in
Walden’s response to the interrogatories and request for production of documents
provided Pier 1 with any information about which of the treating physicians Walden
was expecting would also provide expert testimony or the subjects that testimony would
cover. As discussed above, Pier 1 is not required to assume that every treating physician
can potentially be called as an expert. Musser, 356 F.3d at 758. Thus, Walden’s responses

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to the interrogatories and request for production of documents do not qualify as
disclosure of expert witnesses as required by Rule 26(a)(2).
Furthermore, failure to disclose the treating physicians as experts here is not
substantially justified. The Court is not insensitive to the fact that counsel for the plaintiff
does not regularly practice in federal court. The Federal Rules of Civil Procedure and the
Federal Rules of Evidence, however, are not unfamiliar to most attorneys. It is not
unreasonable for the Court to expect counsel to review and comply with both the federal
and local rules. Musser, 356 F.3d at 759 (“A misunderstanding of the law does not equate
to a substantial justification for failing to comply with the disclosure deadline.”).
Further, the parties provided a Joint Report and Proposed Scheduling and Discovery
Order that was adopted by Magistrate Judge Reona J. Daly. (Docs. 20, 20-1). The
scheduling order specifically identified dates by which experts should be disclosed, their
reports prepared, and their depositions taken. (Doc. 20-1, pp. 2-3). Walden’s counsel
participated in drafting the joint report, and thus he is presumed to have been aware of
the deadlines for disclosure. Failure to disclose the treating physicians as experts is not,
therefore, substantially justified.
For these reasons, the Court finds Walden failed to properly disclose any of the
treating physicians as experts and bars any testimony from those witnesses that express
an expert opinion under Federal Rules of Evidence 701, 702, or 703. Walden is not,
however, prevented from calling the treating physicians as fact witnesses.

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CONCLUSION
Pier 1’s oral motion to strike expert testimony is GRANTED. Any testimony by
Walden’s treating physicians that express an expert opinion under Federal Rules of
Evidence 701, 702 or 703 is hereby excluded. The treating physicians may only testify as
fact witnesses.
IT IS SO ORDERED.
DATED: November 6, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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