GIPSON v. MEIJER, INC. (SIC) et al

Filing 30

DISCOVERY ORDER: Plaintiff seeks a determination of whether he must provide a written expert report under Federal Rule of Civil Procedure 26(a)(2)(B) from Dr. Paul Vessely. Plaintiff's motion for a determination of whether he must provide a Rule 26(a)(2) (B) report 26 is granted consistent with this order (see Order for details). Signed by Magistrate Judge Tim A. Baker on 8/23/2010. (SWM)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION FRANCES GIPSON, Plaintiff, vs. MEIJER STORES LIMITED PARTNERSHIP, et al., Defendants. ) ) ) ) ) ) ) ) 1:09-cv-1316-TWP-TAB DISCOVERY ORDER Plaintiff seeks a determination of whether he must provide a written expert report under Federal Rule of Civil Procedure 26(a)(2)(B) from Dr. Paul Vessely. [Docket No. 26.] Dr. Vessely is Plaintiff's treating physician and was not retained or specifically employed to provide expert testimony in this case. [Id. at 6.] Defendant Kraft Foods Global, Inc. responds that an expert report is "necessary if Dr. Vessely will testify beyond his personal observations and treatment and will offer opinions on causation, prognosis, or permanency" of Plaintiff's injuries. [Docket No. 27 at 1.] Consistent with Wallace v. Hounshel, No. 1:06-cv-1560-RLY-TAB, 2008 WL 2704714 (S.D. Ind. July 3, 2008), Plaintiff need not produce a written report from Dr. Vessely. However, failure to provide an expert report leaves open the possibility that the trial judge may limit Dr. Vessely's testimony to the detriment of Plaintiff's case. Id. at *3; see also Martin v. CSX Transp., Inc., 215 F.R.D. 554, 557 n.3 (S.D. Ind. 2003) ("The safest (though perhaps not the most cost effective) approach for counsel seeking to elicit trial testimony from a treating physician that strays from the core of that treatment is to produce an expert report."). Plaintiff's motion for a determination of whether he must provide a Rule 26(a)(2)(B) report [Docket No. 26] is granted consistent with this order.1 Dated: 08/23/2010 _______________________________ Tim A. Baker United States Magistrate Judge Southern District of Indiana Copies to: Deanna A. Dean-Webster DEAN-WEBSTER, WRIGHT & KITE, LLP dean@dwwklaw.com John Richard Helm SCHRECKENGAST & HELM jrhlaw@sbcglobal.net Matthew Reed King FROST BROWN TODD LLC mking@fbtlaw.com Daniel M. Long FROST BROWN TODD LLC danlong@fbtlaw.com Interestingly, just four days before Kraft's response in this case, an attorney from Kraft's counsel's law firm made the opposite argument that a party is not obligated to provide an expert report for an expert not retained to provide expert testimony at trial. Dali Assocs. L.P. v. Ind. Sports Corp., 1:09-cv-663-RLY-TAB [Docket No. 33]. The outcome reached here is consistent with this Court's ruling in Dali. 2 1

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