Hoskins et al v. Gunn Trucking LLC et al

Filing 40

MEMORANDUM OPINION AND ORDER denying 30 defendants Motion to bar opinion of plaintiffs expert witness Dr. Tonia Wolf Kusimi, M.D. with leave to refile 30 days after an amended report is filed. Plaintiffs are allowed up to and including Monday, May 25, 2009, to refile an Amended Expert Witness Report for Dr. Wolf Kusumi. Granting 31 defendants Motion to bar opinion testimony of Plaintiff Jami Hoskins' Treading Physicians as to Causation, Prognosis and Permanency. The briefing schedule for the motion for summary judgment is currently suspended until further order of this Court. Any amendments to the pleadings to be filed by 5/25/2009. Signed by Judge Allen Sharp on 4/24/09. (csi) Modified on 4/28/2009 edited title of order(csi).

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA H AMMOND DIVISION AT LAFAYETTE

J AMI M. HOSKINS and M ICHAEL HOSKINS, P l a i n t if fs , v. G UNN TRUCKING and C LAUDE R. GUNN, D efe n d a n ts.

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MEMORANDUM OPINION & ORDER T h is matter is before the Court on two motions to bar the testimony of certain w itn e ss e s in a case concerning a car accident. First, pursuant to Federal Rules of Civil P r o c e d u re 26 and 37, Defendant Claude Gunn d/b/a Gunn Trucking ("Defendant") moves f o r an order excluding and barring Plaintiffs Jami Hoskins ("Ms. Hoskins") and Michael H o sk in s' (collectively, "Plaintiffs") expert witness Dr. Tonia Wolf Kusumi, M.D. ("Dr. Wolf K u s u m i" ). (Docket No. 30). Second, pursuant to the same Rules, Defendant moves for an order excluding and b a rrin g the testimony of Ms. Hoskins' treating physicians (including, as follows: Dr. JeanP ie rr e Mobasser, M.D., Dr. Nicolas Costidakis, D.P.M., Dr. Gregory A. Schweikher, D.P.M., D r. Ferdinand Ramos, M.D., Dr. Hamid S. Hamdi, M.D., Dr. Tahir Hafeez, M.D., and Dr. D a v id G. Jarmon, Ph.D., Dr. Michael A. Sermersheim, M.D., and "any treating physician" f ro m St. Vincent Williamsport Hospital). (Docket No. 31).

D is c u s s io n F irs t, in response to Defendant's second motion, Plaintiffs agree that no witness other th a n Dr. Wolf Kusumi should be permitted to testify at trial as to causation, prognosis, and p e rm a n e n cy. (Docket No. 32). Accordingly, because there is no dispute as to the nature of a ll physician witnesses, save Dr. Wolf Kusumi, Defendant's second motion is granted. T u rn in g to Defendant's first motion, a party who has retained an expert witness is r e q u ir e d to furnish a report containing, among other things, "a complete statement of all o p i n i o n s to be expressed and the basis and reasons therefor." Fed. R. Civ. P. 26(a)(2)(B). " T h e purpose of the report is to set forth the substance of the direct examination." Jenkins v . Bartlett, 487 F.3d 482, 487 (7th Cir. 2007). See also Fed. R. Civ. P. 26 advisory c o m m itte e 's note (stating that Rule 26(a)(2) was adopted as a reaction against the former ru le, which allowed expert reports that were so "sketchy and vague" that they were "of little h e lp in preparing for a deposition of the witness"); Salgado by Salgado v. Gen. Motors Corp., 1 5 0 F.3d 735, 742 n.6 (7th Cir. 1998) ("The report must be complete such that opposing c o u n se l is not forced to depose an expert in order to avoid ambush at trial; and moreover the rep o rt must be sufficiently complete so as to shorten or decrease the need for expert d e p o sitio n s and thus to conserve resources."). If a party fails to comply with Rule 26, they are disallowed from using any non-disclosed information at trial. Fed. R. Civ. P. 37(c)(1). T h i s sanction is "automatic and mandatory unless the sanctioned party can show that its v io la tio n of Rule 26(a) was either justified or harmless." Keach v. U.S. Trust Co., 419 F.3d

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6 2 6 , 639 (7th Cir. 2005) (internal quotations omitted). H e re , Plaintiffs filed an Expert Witness Disclosure one business day after the deadline s e t by this Court, which: (1) identifies Dr. Wolf Kusumi, (2) states that she will identify in ju rie s caused by the car crash, and discuss Ms. Hoskins' overall medical condition, current tre a tm e n t, and future treatment, (3) states that Dr. Wolf Kusumi will base her opinion on m e d ic a l records and depositions, (4) includes a copy of Dr. Wolf Kusumi's curriculum vitae, w h ic h includes her recent publications, and (5) states that Dr. Wolf Kusumi has not testified a s an expert at any other trial or deposition. (Docket No. 30-3 at 2-6). The parties have a major disagreement regarding whether Plaintiffs' Expert Witness D is c lo s u re violates the requirements of Rule 26(a)(2)(B), with the Plaintiffs arguing that they ` su b s ta n t ia lly complied' with Rule 26, and the Defendant arguing that the Disclosure was a "b ad joke." (Docket No. 34 at 1). S im ilarly, the Seventh Circuit reveals a wide breadth of permissible action for this C o u rt to take with regards to an Expert Witness Disclosure that clearly does not fulfill the s p e c if i c i ty required by Rule 26. On one hand, the Seventh Circuit has held that a district c o u rt was correct in imposing the "automatic and mandatory" sanction of excluding an e x p e rt's testimony where the report was "woefully deficient." Ciomber v. Coop. Plus, Inc., 5 2 7 F.3d 635, 641 (7th Cir. 2008). On the other hand, the Seventh Circuit has repeatedly h e ld that "[t]he decision to admit previously undisclosed testimony is entrusted to the broad d iscretio n of the district court." Keach v. U.S. Trust Co., 419 F.3d 626, 640 (7th Cir. 2005); 3

D a v id v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003); Salgado v. Gen. Motors Corp., 1 5 0 F.3d 735, 742 (7th Cir.1998). Further, "[a] district court need not make explicit findings concerning the existence o f a substantial justification or the harmlessness of a failure to disclose." David, 324 F.3d at 8 5 7 . Instead, the Seventh Circuit has held that a district court's discretion should be guided b y the following factors: "(1) the prejudice or surprise to the party against whom the e v id e n c e is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of d is ru p ti o n to the trial; and (4) the bad faith or willfulness involved in not disclosing the ev iden ce at an earlier date." Keach, 419 F.3d at 640 (quoting David, 324 F.3d at 857). A lth o u g h Defendant has submitted numerous cases from various district courts in support o f his argument, these cases are not binding authority upon this Court. Instead, this Court w ill analyze this case using the factors set forth by the Seventh Circuit in Keach.1 F irst, without having a transcript or any record of Dr. Wolf Kusumi's deposition, it is difficult to determine if or how Defendant was prejudiced by Plaintiffs' failure to comply w ith Rule 26. Further, to the extent that Defendant would be prejudiced, their incomplete E x p e rt Witness Report will have little, if any, impact upon this case provided Plaintiffs

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A lth o u g h Defendant argues that the report, in addition to being incomplete, is invalid f o r allegedly being prepared by Plaintiffs' counsel rather than by Dr. Wolf Kusumi, a s Rule 26 contemplates, Courts have held that there can be substantial compliance w ith Rule 26, despite failure of a party's attorney to have the physician prepare or e v e n sign the disclosure, the latter of which was done here. See Jenkins v. Bartlett, 4 8 7 F.3d 482, 488 (7th Cir. 2007). 4

su b m it a corrected report in a timely manner. In addition, there is no disruption to the trial, a s the progress of this case is stalled until Defendants' Motion for Summary Judgment is rip e , an event that may not occur for several months. Thus, granting Plaintiffs leave to refile th e ir Expert Witness Report would not cause a disruption to the trial. Finally, this Court is a w a re of no allegations of bad faith on the part of Plaintiffs' counsel. Thus, given the lack o f prejudice rendered to Defendant, Plaintiffs are allowed up to and including Monday, May 2 5 , 2009, to refile an Amended Expert Witness Report for Dr. Wolf Kusumi. Defendant's M o t io n to bar the Testimony of Dr. Wolf Kusumi is denied with leave to refile 30 days after th e amended report is filed, or 30 days after May 25th if no such amended report is filed. T h e briefing schedule for the motion for summary judgment is currently suspended until f u rth e r order of this Court (thereby superceding the Court's order of April 13, 2009 setting a 30 day extension). The cooperation of counsel is greatly appreciated. SO ORDERED. DATED: April 24, 2009 /s/ ALLEN SHARP ALLEN SHARP, JUDGE U N ITED STATES DISTRICT COURT

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