Johnson v. Norfolk Southern Railway Company

Filing 72

OPINION AND ORDER: Norfolk Southern's 53 Motion to Exlude is GRANTED and the Court will not impose Rule 37 sanctions at this time because the parties are essentially in agreement as to the fact that the Treating Medical Witnesses are not to provide evidence at trial under Federal Rules of Evidence 702, 703, or 705, rather they shall serve only as fact witnesses. Signed by Judge Jon E DeGuilio on 6/15/2015. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES JOHNSON

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY a/k/a NORFOLK SOUTHERN
CORPORATION,
Defendant.

Case No. 3:12-CV-102-JD

OPINION AND ORDER
This case arises from injuries sustained by Plaintiff James Johnson while working for
Defendant Norfolk Southern Railway Company (“Norfolk Southern”) at the Elkhart Yard rail
facility in Elkhart County, Indiana. Mr. Johnson alleges that Norfolk Southern is liable for his
injuries under the Federal Employers Liability Act, 45 U.S.C. §§ 51–60. Now before the Court
is Norfolk Southern’s Motion to Exclude Expert Opinions of Plaintiff’s Medical Providers
(“Motion to Exclude”) [DE 53.] Mr. Johnson filed a response to Norfolk Southern’s motion on
February 2, 2015 [DE 59], to which Norfolk Southern replied [DE 60.] For the reasons stated
below, the Motion to Exclude is GRANTED on the grounds that the parties have essentially
stipulated to the allowable testimony of the four witnesses presently at issue.
I. Factual Background
Mr. Johnson filed a complaint against Norfolk Southern on February 24, 2012 [DE 1.] In
short, Mr. Johnson alleges that he slipped on an unstable ballast while working for Norfolk

1

Southern, causing a severe injury to his ankle1 [DE 1 at ¶¶ 5, 8.] After Norfolk Southern
answered the complaint [DE 5], the parties conferred as required by Federal Rule of Civil
Procedure 26(f) and developed a proposed discovery plan [DE 11.] The Court adopted that
discovery plan on April 11, 2012 [DE 12.] Consistent with the parties’ discovery plan, the Court
established the following deadlines: “The serving of reports from retained experts under Rule
26(a)(2) are due from plaintiff(s) by September 28, 2012” and “The last date for the completion
of all discovery is December 28, 2012.” [DE 12 at 1 (emphasis in original).]
On January 3, 2013, a bright line order was entered, terminating the referral to Magistrate
Judge Nuechterlein since discovery had closed [DE 15.] Norfolk Southern then filed a motion to
dismiss for lack of prosecution, claiming that Mr. Johnson had wholly failed to engage in
discovery [DE 16.] In response, Mr. Johnson filed a motion to reopen discovery for 120 days
[DE 17.] The Court granted the motion to reopen discovery, re-referred all non-dispositive
matters to Magistrate Judge Nuechterlein, and afforded the parties until May 31, 2013, to
complete discovery [DE 18.] When the Court reopened discovery, Mr. Johnson did not
explicitly request and the Court did not explicitly grant any extension for the disclosure of
experts. After the Court extended discovery, Norfolk Southern withdrew its motion to dismiss
for lack of prosecution [DE 19] and Mr. Johnson did engage in certain discovery [DE 25 at 2.]
On the afternoon of May 31, 2013—the day on which discovery was to re-close—Mr.
Johnson’s attorney, Mr. Milo Lundblad, served Norfolk Southern with a document labeled
PLAINTIFF’S RULE 26(a)(2)(C) DISCLOSURES [DE 25-1.] The disclosures included five
purported expert witnesses. Four of those witnesses are medical professionals who treated Mr.

1

In this situation, ballast refers to the crushed rock typically used as a bed on which railroad ties
are laid.
2

Johnson following his injury, Dr. Craig Erekson, Rocco Sarli, Dawn Webbe, and Dr. William
Buckley (referred to collectively as the “Treating Medical Witnesses”)2; the fifth witness is a
retained expert, J.P. Purswell, who intended to provide an opinion regarding Norfolk Southern’s
liability for Mr. Johnson’s injuries as caused by the condition of the Elkhart Yard. Also on May
31, Mr. Johnson produced a report of Mr. Purswell’s opinion to the defense [DE 25-2.] Upon
motion by the defense, the Court struck the expert disclosure and report of retained expert Mr.
Purswell due to its untimely disclosure, but declined to strike the disclosures of the four Treating
Medical Witnesses because the record failed to establish whether these witnesses were
previously disclosed to Norfolk Southern so as to permit the parties sufficient time to complete
discovery in the time allotted by the Court [DE 42 at 6.] Because the decision with respect to the
Treating Medical Witnesses was without prejudice, Norfolk Southern renewed its request by
filing the present Motion to Exclude the opinions of Mr. Johnson’s non-retained Treating
Medical Witnesses.
II. Discussion
The disclosure of expert witnesses is governed by Rule 26 of the Federal Rules of Civil
Procedure. Pursuant to Rule 26(a)(2)(B), retained expert witnesses must provide a written report
containing:
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the
previous 10 years;

2

According to the plaintiff, Dr. Erekson treated Mr. Johnson’s injury by inserting screws and a
plate into his right ankle, while Mr. Johnson saw Rocco Sarli and Dawn Webbe for physical
therapy following the injury. In addition, Mr. Johnson’s primary care physician, Dr. Buckley,
monitored Mr. Johnson’s condition after the injury [DE 59 at 2.]
3

(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the
case.
However, pursuant to Rule 26(a)(2)(C), if the expert witness is not required to give a written
report, they must provide instead a disclosure stating:
(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.
The Advisory Committee Notes to the 2010 amendment adding section (a)(2)(C) specifically
included “physicians and other health care professionals” as examples of individuals that may
testify both as fact and expert witnesses without providing a written report pursuant to section
(a)(2)(B). The Advisory Committee states in the Notes that the simpler disclosure requirement
of section (a)(2)(C) does away with undue detail from those treating physicians not specially
retained for litigation.
In its motion, Norfolk Southern claims that Mr. Johnson has wholly failed to properly
disclose his Treating Medical Witnesses as either retained experts (thereby requiring a full
disclosure report under Rule 26(a)(2)(B)), or as other experts expected to provide evidence under
Rule 702 (thereby requiring a summary report under Rule 26(a)(2)(C)). Norfolk Southern argues
that the sanction for the failure to disclose experts in compliance with Rule 26(a)(2) is the
exclusion of the Treating Medical Witnesses’ testimony under Rule 37(c)(1) [DE 53.]
In response to Norfolk Southern’s motion, Mr. Lundblad shifts course by claiming that
Mr. Johnson’s Treating Medical Witnesses (although explicitly called Rule 26(a)(2)(C) experts
in the May 31 disclosures [DE 25-1]), will now only testify as fact witnesses—stating only their
personal observations, examinations, and treatment which are contained in their medical records

4

and stem from their course of treatment of Mr. Johnson [DE 59.] Mr. Lundblad does not attempt
to argue that his disclosures of the Treating Medical Witnesses were proper such that they should
be entitled to provide any kind of expert evidence under Rules 702, 703, or 705.
In reply, Norfolk Southern acknowledges that they have no objection to allowing the
Treating Medical Witnesses to testify at trial in order to describe their observations during
treatment; however, defendant would ask that any testimony going beyond such observations be
excluded for non-compliance with Rule 26(a)(2).
Given Mr. Lundblad’s concession that the four Treating Medical Witnesses are only fact
witnesses and his lack of any attempt to defend the contents of his May 31 Rule 26(a)(2)(C)
disclosures so that the Treating Medical Witnesses might testify as experts, the Court finds that
an order limiting these witnesses from providing any Rule 702 testimony is proper. Treating
physicians, if disclosed as fact witnesses, may testify only regarding personal observations,
examinations, and diagnoses completed during the course of treatment and contained within the
relevant medical records. See Moriconi v. Koester, No. 11-cv-3022, 2015 WL 328590, at *1
(C.D. Ill. Jan. 26, 2015) (“The properly disclosed treating physicians may testify as fact
witnesses concerning examination, diagnosis, and treatment . . . but may not present expert
testimony.”). The “duty to disclose a witness as an expert is not excused when a witness who
will testify as a fact witness and as an expert witness is disclosed as a fact witness.” Tribble v.
Evangelides, 670 F.3d 753, 759 (7th Cir. 2012) (citing Musser v. Gentiva Health Serv’s, 356
F.3d 751, 757 (7th Cir. 2004) (emphasis in the original)). Therefore, the Treating Medical
Witnesses may testify as fact witnesses concerning their personal observation, examination,
diagnosis, and treatment of Mr. Johnson, but Mr. Lundblad may not solicit information from
these witnesses which would go beyond their individual observations made during their personal

5

treatment of Mr. Johnson and would amount to expert opinions as defined in Federal Rule of
Evidence 702. See e.g., Johnson v. Target Corp., 487 Fed.Appx. 298, 301 (7th Cir. 2012)
(district court properly limited treating physician to factual testimony because plaintiff did not
disclose treating physician as an expert).
III. Conclusion
Accordingly, Norfolk Southern’s Motion to Exclude is GRANTED and the Court will
not impose Rule 37 sanctions at this time because the parties are essentially in agreement as to
the fact that the Treating Medical Witnesses are not to provide evidence at trial under Federal
Rules of Evidence 702, 703, or 705, rather they shall serve only as fact witnesses.
SO ORDERED.
ENTERED: June 15, 2015

/s/ JON E. DEGUILIO
Judge
United States District Court

6