Nabors v. CRST Malone Inc et al

Filing 20

OPINION AND ORDER GRANTING 18 MOTION to Exclude Plaintiff from Offering any Expert Testimony on the Issue of Causation or, in the Alternative, Motion for Extension of Defendants' Expert Disclosure Deadline by Defendants CRST International Inc, CRST Malone Inc. Signed by Magistrate Judge Susan L Collins on 2/20/2015. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DWAYNE NABORS,
Plaintiff,
v.
CRST MALONE, INC., and
CRST INTERNATIONAL, INC.,
Defendants.

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CAUSE NO. 1:14-CV-171

OPINION AND ORDER
On January 12, 2015, Defendants CRST Malone, Inc., and CRST International, Inc.
(“together CRST”), filed a motion to exclude Plaintiff Dwayne Nabors from offering any expert
testimony, including from the five treating physicians identified in his initial disclosures, on the
issue of causation because he did not disclose such witnesses or produce a report under Federal
Rule of Civil Procedure 26(a)(2). (Docket # 18.) Nabors has not filed a response to the motion,
and the time to do so has now passed.
For the following reasons, CRST’s unopposed motion will be GRANTED.
A. Factual and Procedural Background
Nabors filed this suit against CRST on May 9, 2014, in LaPorte Superior Court, and
CRST then removed it here under 28 U.S.C. § 1332. (Docket # 1, 2.) In the action, Nabors
alleges that CRST was negligent in allowing him to operate his truck in excess of the maximum
hours allowed by federal trucking regulations, resulting in an accident that caused him injury.
This Court held a preliminary pretrial conference on July 22, 2014, setting the following
deadlines: August 15, 2014, for initial disclosures under Rule 26(a)(1); December 5, 2014, for

Nabors’s expert witness disclosures under Rule 26(a)(2); January 30, 2015, for CRST’s expert
witness disclosures under Rule 26(a)(2); March 31, 2015, for the completion of all expert
discovery; and May 29, 2015, for the completion of all fact discovery. (Docket # 7, 10.)
B. Applicable Legal Authority
“[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.” Fed. R. Civ. P.
26(a)(2)(A). Unless otherwise stipulated by the parties 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 specially employed to provide expert testimony . . . .” Fed. R. Civ. P.
26(a)(2)(B). If the witness is not required to provide a written report, the 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.” Fed. R. Civ. P. 26(a)(2)(C).
Federal Rule of Civil Procedure 37(c)(1) states that if a party fails to identify a witness or
provide information as required by Rule 26(a), “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 is harmless.” “[T]he sanction of exclusion is automatic and mandatory
unless the sanctioned party can show that its violation of Rule 26(a) was either justified or
harmless.” David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003) (citation omitted).

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C. Discussion
CRST states that Nabors identified five treating physicians in his initial disclosures under
Rule 26(a)(1): Dr. George Khoury, Dr. James Bethea, Dr. George Pappas, Dr. Terry Brown, and
Dr. John Hulvey.1 In doing so, Nabors apparently gave the same cursory description for each
physician–that the physician would be “called to testify regarding the injuries sustained by Mr.
Nabors and his subsequent treatment.” (Mem. of Law in Supp. of Defs.’ Mot. 2.) Thus, the
initial disclosures do not suggest that these treating physicians would testify about causation.
And Nabors did not disclose under Rule 26(a)(2)(C) by the December 5, 2014, deadline
that any treating physician would provide expert testimony about causation, along with the facts
and opinions to which the physician was expected to testify. See Ballinger v. Casey’s Gen. Store,
Inc., No. 1:10-cv-1439, 2012 WL 1099823, at *2 (S.D. Ind. Mar. 29, 2012) (“A treating
physician is an expert witness when he testifies about opinions formed during or after treatment
of a patient.” (quoting Coleman v. Am. Family Mut. Ins. Co., 274 F.R.D. 641, 644 (N.D. Ind.
2011)). Nor did Nabors disclose by December 5, 2014, any retained or specially employed
expert witness under Rule 26(a)(2)(B) who may testify about causation, together with the
required expert report.
Nabors does not argue that his failure to disclose was substantially justified or harmless.
Fed. R. Civ. P. 37(c)(1). Rather, Nabors opted not to respond to CRST’s motion seeking to
exclude him from offering expert testimony on the issue of the causation, and thus, he apparently
does not oppose such an exclusion. Accordingly, CRST’s motion will be GRANTED.

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CRST did not submit Nabors’s initial disclosures with its motion, and therefore, they are not part of the

record.

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D. Conclusion
For the foregoing reasons, Defendants’ motion to exclude Plaintiff from offering any
expert testimony on the issue of causation (Docket # 18), which Plaintiff did not oppose, is
GRANTED.
SO ORDERED.
Enter for February 20, 2015.
s/ Susan Collins
Susan Collins
United States Magistrate Judge

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