Coleman v. American Family Mutual Insurance Company

Filing 18

OPINION AND ORDER granting 15 Motion to Compel Expert Disclosures and ORDERING the plaintiff, James Coleman, to provide American Family with a summary expert report as required by Federal Rule of Civil Procedure 26(a)(2)(C) for the four treating physicians within 21 days of this Opinion and Order. Signed by Magistrate Judge Andrew P Rodovich on 6/2/11. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JAMES COLEMAN,

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Plaintiff
v.
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,
Defendant

Case No. 2:10 cv 167

OPINION AND ORDER
This matter is before the court on the Motion to Compel
Expert Disclosures [DE 15] filed by the defendant, American
Family Mutual Insurance Company, on March 30, 2011.

For the

following reasons, the motion is GRANTED.
Background
The court entered a case management order on October 8,
2010, directing the plaintiff, James Coleman, to serve his expert
disclosures and reports by December 29, 2010.

On December 27,

2010, Coleman identified five experts, including a vocationalrehabilitation specialist and four treating physicians.

Coleman

included a written report for the vocational-rehabilitation
specialist but did not provide written reports for the treating
physicians he identified.

The defendant, American Family,

represents that it requested complete reports for the identified
physicians but that Coleman refused to comply.

Because the

parties could not reach an agreement, American Family filed a
motion to compel production of the treating physicians’ expert
reports.
Discussion
A party may "obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party, including the existence, description, nature, custody,
condition and location of any books, documents, or other tangible
things."

Federal Rule of Civil Procedure 26(b)(1).

For discov-

ery purposes, relevancy is construed broadly to encompass "any
matter that bears on, or that reasonably could lead to other
matter[s] that could bear on, any issue that is or may be in the
case."

Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619

(S.D. Ind. 2002)(quoting Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978)).

Even

when information is not directly related to the claims or defenses identified in the pleadings, the information still may be
relevant to the broader subject matter at hand and meet the
rule’s good cause standard. Borom v. Town of Merrillville, 2009
WL 1617085, *1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser
Prods., Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502 (S.D.
Ind. 2003)).

See also Adams v. Target, 2001 WL 987853, *1 (S.D.

Ind. July 30, 2001)("For good cause, the court may order discovery of any matter relevant to the subject matter involved in the
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action."); Shapo v. Engle, 2001 WL 629303, *2 (N.D. Ill. May 25,
2001)("Discovery is a search for the truth.").
A party may seek an order to compel discovery when an
opposing party fails to respond to discovery requests or has
provided evasive or incomplete responses.
Procedure 37(a)(2)-(3).

Federal Rule of Civil

The burden "rests upon the objecting

party to show why a particular discovery request is improper."
Gregg v. Local 305 IBEW, 2009 WL 1325103, *8 (N.D. Ind. May 13,
2009)(citing Kodish v. Oakbrook Terrace Fire Protection Dist.,
235 F.R.D. 447, 449-50 (N.D. Ill. 2006)); McGrath v. Everest Nat.
Ins. Co., 2009 WL 1325405, *3 (N.D. Ind. May 13, 2009)(internal
citations omitted); Carlson Restaurants Worldwide, Inc. v.
Hammond Professional Cleaning Services, 2009 WL 692224, *5 (N.D.
Ind. March 12, 2009)(internal citations omitted).

The objecting

party must show with specificity that the request is improper.
Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind.
2009)(citing Graham v. Casey’s General Stores, 206 F.R.D. 253,
254 (S.D. Ind. 2002)).

That burden cannot be met by "a reflexive

invocation of the same baseless, often abused litany that the
requested discovery is vague, ambiguous, overly broad, unduly
burdensome or that it is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence."

Cunning-

ham, 255 F.R.D. at 478 (citing Burkybile v. Mitsubishi Motors

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Corp., 2006 WL 2325506, *6 (N.D. Ill. Aug. 2, 2006))(internal
quotations and citations omitted).

Rather, the court, under its

broad discretion, considers "the totality of the circumstances,
weighing the value of material sought against the burden of
providing it, and taking into account society’s interest in
furthering the truth-seeking function in the particular case
before the court."

Berning v. UAW Local 2209, 242 F.R.D. 510,

512 (N.D. Ind. 2007)(examining Patterson v. Avery Dennison Corp.,
281 F.3d 676, 681 (7th Cir. 2002))(internal quotations and citations omitted).
American Family asks the court to compel Coleman to produce
expert reports for the four treating physicians he identified in
his expert disclosures.

Rule 26(a)(2) governs expert reports and

states in relevant part:
(B) Written Report. Unless otherwise stipulated or ordered by the court, [expert disclosures] 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 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
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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.
Rule 26(a)(2)(B) defines an expert witness as "one retained or
specially employed to provide expert testimony in the case or one
whose duties as the party's employee regularly involve giving
expert testimony."

See also Meyers v. National R.R. Passenger

Corp., 619 F.3d 729, 734 (7th Cir. 2010); Musser v. Gentiva
Health Services, 356 F.3d 751, 757 (7th Cir. 2004).
"All witnesses who are to give expert testimony under the
Federal Rules of Evidence must be disclosed under Rule
26(a)(2)(A)" while "only those witnesses 'retained or specially
employed to provide expert testimony' must submit an expert
report complying with Rule 26(a)(2)(B)."

Banister v. Burton, 636

F.3d 828, 833 (7th Cir. 2011)(citing Musser, 356 F.3d at 756-57);
Rule 26(a)(2)(C).

The expert report serves the purpose of

putting the opposing party on notice of the expert’s proposed
testimony so the opposing party may form an appropriate response.
Meyers, 619 F.3d at 734; Musser, 356 F.3d at 757-58.

The conse-

quence of non-compliance with Rule 26(a)(2)(B) is "exclusion of
an expert's testimony . . . 'unless the failure was substantially
justified or is harmless.'" Meyers, 619 F.3d at 734 (citing Gicla

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v. United States, 572 F.3d 407, 410 (7th Cir. 2009)(quoting Rule
37(c)(1)).
A treating physician is an expert witness when he testifies
about opinions formed during or after treatment of the patient.
Meyers, 619 F.3d at 734-35.

This is because such opinions are

based on scientific, technical, or other specialized knowledge.
Musser, 356 F.3d at 751, 757 n.2.

However, not every treating

physician is required to provide an expert report.

Rule

26(a)(2)(B)-(C); Musser, 356 F.3d at 758, n.3 ("We need not reach
the disputed issue of whether an individual who serves in the
capacity of 'treating physician' (or any analogous position) may
nonetheless be required to submit a report under Rule
26(a)(2)(B).").

Whether an expert report is necessary is dic-

tated by the nature of the treating physician’s intended testimony.

Musser, 356 F.3d at 758 n.3.

It is generally agreed that a treating physician who testifies about his observations during treatment is not required to
file an expert report.

See, e.g., Zarecki v. Nat'l R.R. Passen-

ger Corp., 914 F.Supp. 1566, 1573 (N.D. Ill. 1996); Krischel v.
Hennessy, 533 F.Supp.2d 790, 795 (N.D. Ill. 2008)("When a treating physician limits his testimony to his observation, diagnosis
and treatment, there is no need for a Rule 26(a)(2)(B) report.");
Fielden v. CSX Transp. Inc., 482 F.3d 866, 870-71 (6th Cir. 2007)

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(holding that a formal report is not required when determining
causation is an integral part of treating a patient).

However,

the issue becomes more convoluted where the treating physician
intends to state an opinion concerning the cause of the plaintiff’s injuries.1
F.3d at 734-35.

Krischel, 553 F.Supp.2d at 796; Meyers, 619
In Meyers, the court explained that a treating

physician may be required to submit an expert report when his
testimony exceeds the scope of his observations during treatment.
Physicians who intend to offer testimony regarding causation of
the plaintiff’s injuries often go beyond the scope of treatment,
requiring the physician to submit a complete expert report.

The

Meyers court explained that the determining factor is whether the
physician determined the cause of the individual’s injuries
during or after treatment.

Meyers, 619 F.3d at 734-35. ("[A]

treating physician who is offered to provide expert testimony as
to the cause of the plaintiff's injury, but who did not make that
determination in the course of providing treatment, should be
deemed to be one 'retained or specially employed to provide
expert testimony in the case,' and thus is required to submit an
expert report in accordance with Rule 26(a)(2).").
However, after Meyers was decided, Rule 26 was amended
effective December 2010, to resolve the tension that led some
1

A similar question often arises when the treating physician is asked to
give an opinion on whether the injuries are temporary or permanent.

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courts to require expert reports of non-retained experts.

The

amendments did not alter who was required to file an expert
report under the rule and explained that an expert "retained or
specially employed" must submit a complete expert report.
26(a)(2)(B).

Rule

However, subpart C was added mandating summary

disclosures in place of complete expert reports, of the opinions
to be offered by expert witnesses who were not retained or
specially employed to give expert testimony.

Rule 26(a)(2)(C).

The Committee Notes explain that common examples of experts
required to submit summary disclosures include physicians or
other health care professionals.
amendments).

Rule 26 (Committee Notes, 2010

The amendment attempts to clarify the distinction

between an expert retained for the purpose of providing expert
testimony and non-retained experts.

See Rule 26(a)(2)(C) and

Committee Notes (stating that non-retained witnesses must provide
"a summary of the facts and opinions to which the witness is
expected to testify."); Rule 26 (Committee Notes, 2010 amendments); Crabbs v. Wal-Mart Stores, Inc., 2011 WL 499141, *1 (S.D.
Ind. Feb. 4, 2011)(explaining amendments to Rule 26 to determine
if treating physician must provide an expert report).
The four treating physicians Coleman identified in his
expert disclosures intend to testify to "scientific, technical or
other specialized knowledge" and are experts under Rule 26.

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The

question then becomes whether they were "retained or specially
employed to provide expert testimony" and are required to prepare
an expert report.

The Meyers court specifically defined a treat-

ing physician who intended to testify to the cause of the plaintiff’s injuries as one "retained or specially employed."
619 F.3d at 735.

Meyers,

Coleman admits that the treating physicians he

identified intend to testify to the cause of his injuries and
therefore would be required to submit an expert report under
Meyers.

However, the court must determine whether Meyers remains

effective in lieu of the amendments to Rule 26.
Although the amendment to Rule 26 did not alter who is
required to file an expert report, the amendment appears to speak
directly to experts, such as treating physicians, whose testimony
often blurs the line between fact and opinion.

Rule 26 (Commit-

tee Notes)(stating that common examples of experts required to
submit summary disclosures include physicians or other health
care professionals).

The amendment to Rule 26 was added to

address concerns about expert testimony, including courts requiring detailed reports from experts who were not retained for the
purpose of giving expert testimony.

It would be difficult to

conclude that the treating physicians identified here were
retained for the express purpose of giving expert testimony.
Crabbs, 2011 WL 499141 at *2 (finding that treating physicians

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See

were not experts retained or specially employed to provide testimony).

Nothing in the record suggests that the treating physi-

cians were sought for any purpose except treatment.

Because the

amendment to Rule 26 attempts to clarify the distinction between
an expert retained to testify and one who will testify for
reasons independent of trial preparation, the court finds that
the amendment overcomes the holding in Meyers as far as the
physicians at hand are concerned because of the purpose for which
they were first sought.

For this reason, the treating physicians

are not required to submit a complete expert report.

However,

the amendment to Rule 26 mandates that the treating physicians
must file a summary report, disclosing "(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."
Rule 26(a)(2)(C).
_______________
Based on the foregoing reasons, the court GRANTS American
Family’s Motion to Compel Expert Disclosures [DE 15] and ORDERS
the plaintiff, James Coleman, to provide American Family with a
summary expert report as required by Federal Rule of Civil
Procedure 26(a)(2)(C) for the four treating physicians within 21
days of this Opinion and Order.

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ENTERED this 2nd day of June, 2011

s/ ANDREW P. RODOVICH
United States Magistrate Judge

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