Guthrie v. Hochstetler

Filing 24

OPINION AND ORDER: The Court DENIES WITHOUT PREJUDICE Defendant's 13 motion to exclude Plaintiff's expert testimony. The Court VACATES 1) the jury trial currently scheduled to begin on 11/28/2017; 2) the Final Pretrial Conference schedu led for 11/14/2017; and 3) all other trial-related deadlines. By 10/27/2017, Plaintiff must serve on Defendant summary reports for all previously disclosed treating physicians expected to testify. Defendant may file a renewed motion to exclude by 1 1/6/2017. If not filed, Defendant may conduct discovery in response to Plaintiff's reports through 11/27/2017. The Court SCHEDULES a telephonic status conference on 11/28/2017 at 10:30am (EST). Signed by Magistrate Judge Michael G Gotsch, Sr on 10/20/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

GREG GUTHRIE,
Plaintiff,
v.
LORI ANN HOCHSTETLER,
Defendant.

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CAUSE NO. 3:16-CV-473-MGG

OPINION AND ORDER
On June 19, 2017, Defendant filed her Motion to Exclude Expert Testimony asking the
Court to exclude expert testimony from certain healthcare providers that Plaintiff designated as
experts because Plaintiff has failed to properly disclose summaries of fact and opinion as
required by Fed. R. Civ. P. 26(a)(2). On June 30, 2017, Plaintiff filed his response in opposition
to Defendant’s instant motion. The instant motion became ripe on July 7, 2017, when Defendant
filed her reply brief. The undersigned retains jurisdiction over this case based on the parties’
consent and 28 U.S.C. § 636(c). For the reasons discussed below, the Court issues the following
Opinion and Order denying without prejudice Defendant’s motion to exclude expert testimony.
I.

RELEVANT BACKGROUND
This personal injury action arises from a car accident on August 30, 2014, in which

Defendant rear-ended Plaintiff. Plaintiff alleges that Defendant’s negligence resulted in injuries,
including a herniated disc in his neck. After the accident, Plaintiff treated with multiple doctors.
His primary care doctor, Dr. Charles Higgs-Couthard, referred him to physical therapy and a
neurologist, Dr. George DePhillips, who diagnosed the herniated disc. Upon Dr. DePhillips’s

departure from the neurology practice, Dr. Neal Patel took over as Plaintiff’s neurologist. Dr.
Patel performed a cervical fusion surgery.
On May 24, 2017 1, Plaintiff submitted his expert disclosures to Defendant. Plaintiff
disclosed thirteen treatment providers as expert witnesses, but did not submit any written reports
prepared or signed by the experts. Through his disclosures, Plaintiff described the subject of
eleven doctors’ testimony as “the diagnosis, causation, treatment, and prognosis of Plaintiff’s
injuries.” [DE 14-1 at 1–3]. For two of the doctors, Plaintiff disclosed the subject of their
testimony as “Plaintiff’s injuries, causation of injuries, treatment of injuries.” [Id. at 3]. Plaintiff
attached the sworn statements of Dr. Higgs-Couthard [Id. at 5–8], Dr. DePhillips [Id. at 117–25],
and Dr. Patel [Id. at 76–80] to his disclosures. Plaintiff also attached curriculum vita for Dr.
Patel [Id. at 85-88] and Dr. DePhillips [Id. at 158–59]. For all thirteen doctors, Plaintiff noted
that “[m]edical reports have been previously provided.” [Id. at 1–3].
In the instant motion, Defendant alleges that Plaintiff’s disclosures do not satisfy his Rule
26(a)(2) obligations. Specifically, Defendant contends that Plaintiff has failed to provide (1)
summaries of the facts or opinions anticipated in testimony from ten of the disclosed healthcare
providers 2, and (2) full expert reports from Dr. Higgs-Couthard, Dr. DePhillips, and Dr. Patel

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The Court notes that the deadline for Plaintiff to submit his expert disclosures was May 20, 2017. [DE 8 at 2].
However, the parties now report that they agreed—without the Court’s approval—to extend the deadline until May
27, 2017. [DE 14 at 2; DE 15 at 3]. Based on the parties’ agreement, the Court accepts Plaintiff’s disclosures as
timely filed while REMINDING the parties that extending discovery deadlines is solely within the Court’s purview.
See Fed. R. Civ. P. 16(b)(4) (requiring both good cause and the judge’s consent for any modification of a Rule 16(b)
Scheduling Order); see also Fed. R. Civ. P. 6(b)(1) (allowing the court to extend deadlines for good cause before the
deadline expires and for good cause and excusable neglect after the deadline expires).
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See DE 14-1 at 1–3 (disclosing Gregory O’Neil, M.D. (Med-Point physician); David Hartman, M.D. (Emergency
Room physician); Stephanie Anspaugh, PT, PPT, OCS (Physical Therapist); Erick C. Leffler, DC (Treating
Chiropractor); Chris Leeuw, DPT (Physical Therapist); Kathryn Park, M.D. (Interventional Pain Management,
Physical Medicine and Rehabilitation); Thomas A. Predey, M.D. (Neuroradiologist); John Collins, M.D. (Neurology
Specialists); Richard Zentz, D.O. (Family Physician)).

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(collectively the “Three Physicians”), all of whom Defendant alleges are expected to testify on
matters beyond their treatment-related observations.
In opposition, Plaintiff argues that he has fulfilled his Rule 26(a)(2) expert disclosure and
report obligations. First, Plaintiff argues that he has not retained any experts to testify about
medical causation and that any of the physicians’ opinions about causation were made in the
course of treating Plaintiff. Second, Plaintiff contends that the he timely and adequately
summarized the testimony of each treating physician in his disclosure. Third, Plaintiff contends
that his production of medical records from all the disclosed physicians constitute the required
summary of facts and opinions. Lastly, Plaintiff argues that even if the Three Physicians are
deemed retained experts, their sworn statements serve the same purpose as Rule 26(a)(2)(B)
written reports because they report the doctors’ opinions, their reasons for those opinions, the
data and facts behind those opinions, and the medical records considered in reaching those
opinions. In addition, Plaintiff contends that he has provided information on the Three
Physicians’ qualifications, history of expert testimony, and compensation in this case.
II.

ANALYSIS
A.

Legal Standard

Federal Rules of Civil Procedure 26(a)(2) governs the disclosure of expert testimony and
provides:
(A) In General. In addition to the disclosures required by Rule 26(a)(1), 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.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated
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 in the case or one whose duties as the
party’s employee regularly involve giving expert testimony. The report must
contain:
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(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;
(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.
(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 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.
“[A]ll 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) (internal quotations and citations omitted)
(emphasis in the original). “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.” Brunswick v. Menard, Inc., No. 2:11 CV 247, 2013 WL 5291965, at *3 (N.D. Ind.
Sept. 19, 2013) (citing Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729, 734 (7th Cir. 2010);
Musser v. Gentiva Health Servs., 356 F.3d 751, 757–58 (7th Cir. 2004)).

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B.

Plaintiff’s Experts’ Status as Retained Experts Under Rule 26(a)(2)(B)

Before assessing whether Plaintiff has complied with his Rule 26(a)(2) disclosure
requirements, the Court must determine whether any of the thirteen disclosed physicians
constitute experts retained or specially employed to testify in this case such that a written expert
report is required under Rule 26(a)(2)(B). Treating physicians who testify as to the cause of a
plaintiff’s injuries often opine about matters beyond those observed during the plaintiff’s medical
treatment necessitating a full Rule 26(a)(2)(B) expert report. Meyers, 619 F.3d at 734; see also
Brunswick, 2013 WL 5291965, at *5; Coleman v. Am. Family Mut. Ins. Co., 274 F.R.D. 641, 644
(N.D. Ind. 2011). Thus, the question here is whether Plaintiff’s treating physicians reached their
conclusions about causation during their treatment of and based on their personal observations of
Plaintiff.
Plaintiff has posited that none of the thirteen physicians are retained experts hired to
testify about causation. As to the Three Physicians, Plaintiff relies upon their sworn statements
and medical records to show that their opinions about causation were reached during treatment.
Yet only Dr. DePhillips’s sworn statement and medical records confirm that he reached his
causation determination during Plaintiff’s treatment such that no written report is required. Dr.
Higgs-Couthard and Dr. Patel both testified regarding causation in their sworn statements.
However, the record shows that they reached their conclusions about causation for the first time
while being interviewed for the sworn statement after Plaintiff’s treatment was complete and
only in response to Plaintiff’s counsel’s questions and having reviewed medical records other
than their own. Without evidence that they reached their causation opinions while treating
Plaintiff, Dr. Higgs-Couthard and Dr. Patel appear to be expert witnesses for whom written
reports are presumably required under Rule 26(a)(2)(B). However, requiring those expert reports

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as a foundation for their causation testimony would be an inefficient use of resources because the
causation testimony is likely to be deemed inadmissible.
Courts must ensure that any expert testimony or evidence admitted is relevant and
reliable. Mihailovich v. Laatsch, 359 F.3d 892 918 (7th Cir. 2004); see also Fed. R. Evid. 702.
In so doing, courts must examine whether 1) the expert will “testify based on valid scientific,
technical, or specialized knowledge, i.e., whether the expert’s testimony is reliable,” and 2)
whether that testimony will assist the trier of fact in understanding or determining a fact in issue.
Ruppel v. Kucanin, No. 3:08 CV 591, 2011 WL 2470621, at *2 (N.D. Ind. June 20, 2011) (citing
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993)); see also Smith v. Ford Motor
Co., 215 F.3d 713, 718 (7th Cir. 2000).
Here, Plaintiff has not demonstrated that any of the Three Physicians are qualified to
opine on the relationship between car accidents and personal injuries despite submitting their
sworn statements and the curriculum vita for Dr. DePhillips and Dr. Patel. The Three Physicians
clearly retain medical credentials and professional experience relevant to the treatment of injuries
like those at issue in this case. What the record fails to show, however, is whether they retain
scientific, technical, or specialized knowledge to reliably opine about the relationship between
car accidents and injuries like Plaintiff’s.
The substance of their opinions also bring into question the reliability of the Three
Physicians’ causation testimony. Specifically, each of the Three Physicians has simply
concluded that Plaintiff’s injuries were caused by the car accident involving Defendant based on
the temporal proximity of Plaintiff’s injuries to the accident. No one disputes that Plaintiff’s
injuries occurred after the accident. However, basic logic dictates that temporal proximity
alone—while relevant—does not determine the causation of an individual’s injuries.

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Accordingly, the causation testimony of any of the Three Physicians do not warrant a Rule
26(a)(2)(B) written expert report.
As to his other ten treating physicians, Plaintiff has only produced their medical records
and only to Defendant. In addition, Plaintiff has not cited any parts of those medical records to
this Court to show the specific nature of those physicians’ anticipated causation testimony or
whether they reached their causation conclusions while treating Plaintiff. Yet, Defendant does
not strongly argue that they are retained experts either. Instead, Defendant focuses on Plaintiff’s
failure to supply the Rule 26(a)(2)(C)(ii) summary report for these physicians. Accordingly, the
Court will assume that these ten physicians are not retained experts from whom written reports
are required at this time.
C.

Rule 26(a)(2)(C) Summary of Expert Testimony and Bases for Conclusions

Treating physicians are typically considered experts required to submit summary
disclosures under Rule 26(a)(2)(C) rather retained or specially employed experts required to
submit an expert report under Rule 26(a)(2)(B). Fed. R. Civ. P. 26(a)(2)(C) advisory
committee’s notes to 2010 amendment. Accordingly, treating “physicians who are expected to
testify, at minimum, are required to file a summary report, disclosing the subject matter on which
the witness is expected to present expert opinion testimony and a summary of the facts and
opinions expected in testimony as required under Rule 26(a)(2)(C). Whether a treating physician
is required to provide a Rule 26(a)(2)(C) summary report or a complete Rule 26(a)(2)(B) expert
report depends on the particular testimony given. Brunswick, 2013 WL 5291965, at *4. “If a
treating physician intends to testify beyond his observations [i.e., personal knowledge], he must
provide a full expert report.” Id.

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Here, Plaintiff’s expert disclosure reports the subject of the anticipated testimony from
eleven of the thirteen disclosed physicians with the following notation under each name:
“Subject: the diagnosis, causation, treatment, and prognosis of Plaintiff’s injuries.” [DE 14-1 at
1–3]. For the remaining two physicians, Plaintiff notes: “Subject: Plaintiff’s injuries, causation
of injuries, treatment of injuries.” [Id. at 3]. Plaintiff’s “subject notations” satisfy Rule
26(a)(2)(C)(i)’s requirement to disclose the subject matter of anticipated testimony. However,
Plaintiff has not produced any summary of the facts and opinions about which the thirteen
physicians are expected to testify as required under Rule 26(a)(2)(C)(ii). Instead, Plaintiff argues
that the medical records from all thirteen physicians along with the sworn statements from the
Three Physicians satisfy the Rule’s summary requirement. The Court is not persuaded.
Rule 26(a)(2)(C)(ii) summaries clarify a witness’s “expected testimony . . . and the bases
for the conclusions.” Ballinger v. Casey’s Gen. Store, No. 1:10-cv-1439-JMS-TAB, 2012 WL
1099823, at *5 (S.D. Ind. Mar. 29, 2012). Medical records alone do not satisfy the Rule
26(a)(2)(C)(ii) summary requirement. Brunswick, 2013 WL 5291965, at *5.
If the court only were to require that the information treating physicians intend to
testify about to be present in the medical records, this would dispose of the
summary report requirement mandated by Rule 26(a)(2)(c) and could result in
abuse by inviting a party to dump a litany of medical records on the opposing
party rather than preparing a summary of the expert’s testimony.
Id. (citing Ballinger, 2012 WL 1099823, at *4).
Here, the record includes no evidence that Plaintiff intentionally dumped excessive
medical records on Defendant for any abusive purpose. Nevertheless, the medical records from
the thirteen disclosed physicians are not sufficiently narrow in focus to clarify what their
expected testimony will be let alone or the bases for their conclusions. Similarly, the three sworn
statements that Plaintiff has produced cover too much evidentiary territory to clarify the

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physicians’ expected testimony or the bases for that testimony. As such, Plaintiff’s disclosure of
medical records and sworn statements do not satisfy his obligation to provide a summary of the
thirteen physicians’ testimony under Fed. R. Civ. P. 26(a)(2)(C)(ii).
D.

Sanctions for Failure to Disclose Expert Summary Reports

Having determined that Plaintiff failed to comply with Rule 26(a)(2)(C)(ii)’s requirement
for a summary report to clarify the thirteen physicians’ expected testimony and bases for their
conclusions, the Court now must determine what, if any, sanctions are appropriate. Under Fed.
R. Civ. P. 37(c)(1), a “party is not allowed to use” any information or witness to supply evidence
at a trial if the party fails to disclose the identity of an expert witness or to provide any
information required under Fed. R. Civ. P. 26(a)(2) “unless the failure was substantially justified
or is harmless.” See also Meyers, 619 F.3d at 734. Therefore in this case, the expert testimony
of Plaintiff’s thirteen treating physicians should be excluded unless Plaintiff can show that his
lack of compliance with Rule 26(a)(2)(C) was substantially justified or harmless. A district court
“need not make explicit findings regarding a justification or the harmlessness of the Rule 26
violation, but . . . the following factors should guide the district court’s discretion: (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.” Banister, 636 F.3d at 833
(quoting Westefer v. Snyder, 422 F.3d 570, 585 n. 21 (7th Cir. 2005)).
Defendant cannot claim complete surprise as to the testimony of Plaintiff’s thirteen
disclosed treating physicians as she received medical records from all thirteen physicians before
Plaintiff’s disclosures were made on May 24, 2017. See Ballinger, 2012 WL 1099823, at 4–5
(allowing treating physician to testify despite failure to provide expert report because the

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defendant had been on notice since receiving initial disclosures identifying the physician and
production of medical records early in discovery). Yet the parties have not made clear to the
Court exactly when Plaintiff originally produced those medical records leaving some question as
to how much time Defendant was afforded to review the records before the faulty expert
disclosures were made. Yet, Defendant can reasonably claim prejudice and surprise as to any
issues, especially causation and prognosis, that do not appear to be incorporated into any of the
medical records besides those of Dr. DePhillips. Indeed, Plaintiff’s faulty disclosures have left
Defendant unable to discern the specific nature of the physicians’ expert testimony limiting her
ability to craft a settlement or trial strategy going forward.
Plaintiff’s faulty disclosures have also left Defendant to root around in the medical
records to guess what position the physicians will take. Notably, the sworn statements of the
Three Physicians do help narrow their expected testimony a bit from the medical records.
However, even the sworn statements do not pinpoint the full bases for the Physicians’
conclusions either leaving Defendant in the dark or forcing her to expend resources
unnecessarily ascertaining Plaintiff’s positions, a task that the Federal Rules of Civil Procedure
relegated to Plaintiff.
Plaintiff has disadvantaged Defendant further given that a jury trial is scheduled in this
case for November 28, 2017—less than six weeks away. Without an extension of the trial date,
Defendant lacks sufficient time to develop her response to the physicians’ expected testimony
and her final defense strategy. Furthermore, any delay to the trial to allow time for Plaintiff to
provide the missing summary reports and for Defendant to develop a response to the expected
testimony also prejudices Defendant, who should not be faced with protracted litigation solely
due to Plaintiff’s failure to follow the expert disclosure rules of this Court. As a result, any

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prejudice and delay caused by Plaintiff’s faulty disclosures can only be overcome with the
Court’s assistance. Neither party can cure the prejudice alone.
With that said, the record shows no evidence that Plaintiff withheld the experts’ summary
reports in bad faith or willfully to delay this litigation or limit Defendant’s defense. Instead,
Plaintiff appears to have misunderstood the scope of the Rule 26(a)(2)(C) requirements. As
such, exclusion of testimony from Plaintiff’s treating physicians is an excessive and unduly
prejudicial remedy. Nevertheless, the prejudice to Defendant cannot be ignored.
Under Fed. R. Civ. P. 37(c)(1)(A)–(C), the Court retains discretion to impose additional
or alternative sanctions for discovery violations in the form of (1) “reasonable expenses,
including attorney’s fees, caused by the failure;” (2) informing “the jury of the party’s failure;”
and (3) other sanctions, including those listed in Fed. R. Civ. P. 37(b)(2)(A)(i)–(vi) “on motion
and after giving an opportunity to be heard.” In light of the unique circumstances of this case,
the Court’s primary goal is to get it to trial as quickly as possible while ensuring that Defendant
has time to prepare a complete defense grounded in the knowledge of Plaintiff’s anticipated
factual and opinion evidence, including the testimony of the thirteen treating physicians.
To achieve that goal, the Court will delay the trial briefly and require Plaintiff to serve
Rule 26(a)(2)(C)(ii) summary reports for all of his disclosed treating physicians that Defendant
can still challenge. Assuming the reports are compliant, Defendant can be allowed additional
time for discovery related to the reports in preparation for trial. At trial, the testimony of
Plaintiff’s disclosed treating physicians will be limited to opinions actually formed during
Plaintiff’s treatment, or in other words, testimony within the scope of a physician’s personal
knowledge and observations. No further sanctions are warranted at this time.

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III.

CONCLUSION
For the reasons discussed above, the Court finds that none of Plaintiff’s thirteen disclosed

treating physicians constitute Rule 26(a)(2)(B) retained experts. As such, no written expert
reports were required from any of the thirteen physicians. However, Plaintiff’s disclosures failed
to include a Rule 26(a)(2)(C)(ii) “summary of the facts and opinions to which the witness is
expected to testify.” Plaintiff’s faulty disclosures are attributable to a misunderstanding of the
Rules rather than any bad faith conduct. The prejudice to Defendant from the faulty disclosures
can be mitigated by (1) delaying the trial to allow additional time for Plaintiff to perfect his
expert disclosures and for Defendant to conduct discovery related to the disclosures in
preparation for trial, and (2) limiting Plaintiff’s expert testimony to facts and opinions within the
personal knowledge and observations of the expert.
Therefore, the Court now DENIES WITHOUT PREJUDICE Defendant’s motion to
exclude Plaintiff’s expert testimony. [DE 13]. Consequently, the Court VACATES (1) the jury
trial currently scheduled to begin on November 28, 2017; (2) the Final Pretrial Conference
scheduled for November 14, 2017; and (3) all other trial-related deadlines.
By October 27, 2017, Plaintiff must serve on Defendant summary reports, fully
compliant with Rule 26(a)(2)(C)(ii), for all previously disclosed treating physicians expected to
testify. Defendant may file a renewed motion to exclude expert testimony, if necessary, by
November 6, 2017. If a renewed motion to exclude is not filed, Defendant may conduct
discovery in response to Plaintiff’s summary reports, including disclosure of rebuttal expert
witnesses and reports, through November 27, 2017.
At trial, testimony of Plaintiff’s disclosed treating physicians is LIMITED to (1) those
for whom summary reports have been timely served; and (2) opinions formed during Plaintiff’s

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treatment and reflected in the physician’s own medical records. No testimony beyond the scope
of a physician’s personal knowledge and observations of Plaintiff’s treatment will be admitted.
Lastly, the Court SCHEDULES a telephonic status conference, for the purpose of
resetting a trial date, on November 28, 2017, at 10:30 a.m. (E.S.T.). The Court will call all
counsel listed on the docket sheet unless notified that specified attorneys need not be contacted.
If, at the time of the scheduled conference, any appearing attorney will not be at the telephone
number identified on the docket, please contact chambers with a preferred phone number.
SO ORDERED.
Dated this 20th day of October 2017.
S/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge

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