BALLINGER et al v. CASEY'S GENERAL STORES, INC.
ORDER granting in part and denying in part Deft's 41 Motion to Exclude (SEE ORDER). Signed by Magistrate Judge Tim A. Baker on 3/29/2012. (SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
ZENAIDA and BEN BALLINGER,
CASEY’S GENERAL STORE, INC.,
ORDER ON DEFENDANT’S MOTION TO EXCLUDE
Before the Court is Defendant’s motion to exclude the expert testimony of Plaintiff
Zenaida Ballinger’s treating physicians, Drs. Li Chen and Jared Jones, and physical therapist
Peggy Luna. Defendant contends that Plaintiffs never identified Jones and Luna in violation of
Federal Rule of Civil Procedure 26(a)(2)(A) and never provided summary disclosures for any of
the witnesses in violation of Federal Rule of Civil Procedure 26(a)(2)(C). For the reasons below,
Defendant’s motion to exclude [Docket No. 41] is granted in part and denied in part.
Federal Rule of Civil Procedure 26(a)(2)(A) requires that Plaintiffs “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.” Based on Plaintiffs’ preliminary witness list [Docket No. 30 at 2]
and December 8, 2011, disclosure [Docket No. 40 at 2], the only treating physician that Plaintiffs
identified was Chen. The witness list and disclosure do not identify Jones or Luna, but only list
the names and addresses of medical institutions. [Docket Nos. 30, 40.] Rule 26(a)(2)(A)
requires that the “witness” be identified by name; listing the institution in which the witness is
associated is insufficient. Tribble v. Evangelides, ___ F.3d ___, 2012 WL 245029, at *4–5 (7th
Cir. Jan. 26, 2012) (“Rule 26(a)(1) requires, among other things, the disclosure of the names and
addresses of fact witnesses.”); Akins-Brakefield v. Philip Envtl. Servs. Corp., No. 08-CV-710DRH, 2010 WL 1856003, at *1 (S.D. Ill. May 10, 2010) (“Under Rule 26(a)(2)(A), a party must,
as part of its initial disclosures, identify the names of any expert witness it may use.”); Walton v.
Best Buy Co., No. 08-CV-15084, 2010 WL 1494612, at *5 (E.D. Mich. Apr. 14, 2010)
(“Plaintiff’s listing of only the categories for which she may use expert witnesses at trial does not
satisfy Rule 26(a)(2)(A).”). Thus, Plaintiffs did not properly identify Jones and Luna.
When a party fails to identify a witness, the party is not allowed to use that witness at
trial unless the failure was substantially justified or harmless. Fed. R. Civ. P. 37(c)(1); Dynegy
Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 515 (7th Cir. 2011). Whether such a failure is
justified or harmless is left to the broad discretion of the Court. Dynegy, 648 F.3d at 515;
Westefer v. Snyder, 422 F.3d 570, 584 n.21 (7th Cir. 2005). While the Court need not make
explicit findings when determining if the failure was substantially justified or harmless, the
Court is guided by four factors: “(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.” Tribble, 2012 WL 245029, at *4–5; Westefer, 422 F.3d at 584 n.21.
Plaintiffs contend there is no prejudice because even if Jones and Luna were not properly
named, listing the medical providers gave Defendant sufficient notice because Defendant “can
readily ascertain and narrow the potential expert witnesses which the Plaintiffs may use.”
[Docket No. 48 at 6–7.] However, listing six different medical institutions—each with
potentially hundreds of employees—does not put Defendant on sufficient notice. It is also not
the Defendant’s obligation to ascertain the identity of the opposing party’s witnesses; Rule
26(a)(2)(A) places the burden of identification squarely on the party offering the witnesses.
Furthermore, the ability to cure the prejudice is minimal since the discovery deadline has passed
and extending the deadline would delay the May 14, 2012, trial date.1 See Tribble, 2012 WL
245029, at *4–5 (“Without proper disclosures, a party may miss its opportunity to disqualify the
expert, retain rebuttal experts, or hold depositions for an expert not required to provide a
report.”); McGowan v. Chapman, No. 3:09-CV-17-DGW, 2011 WL 5374116, at *3 (S.D. Ill.
Nov. 7, 2011) (“The Court finds that Defendant’s untimely disclosure and failure to provide
reports was harmful to the Plaintiff. Plaintiff had no opportunity to conduct discovery on the
experts’ opinions or to find rebuttal experts.”). Although Plaintiffs supplemented their
disclosure on February 14, 2012, one month before the close of discovery, it is unreasonable to
have required Defendant to conduct discovery on two belatedly disclosed expert witnesses one
month before the close of discovery and nearly two months before trial.
Additionally, there is evidence of bad faith and willfulness on the part of Plaintiffs. Rule
26(a)(2)(A) unmistakably states that the “witness” must be named and there is ample case law
emphasizing the rule. See, e.g., Tribble, 2012 WL 245029, at *4–5 (“This is a strict but
well-founded requirement: ‘Knowing the identity of the opponent’s expert witnesses allows a
“[N]on-expert witness discovery and discovery relating to liability issues shall be
completed by September 9, 2011; expert witness discovery and discovery relating to damages
shall be completed by March 9, 2012.” [Docket No. 20.]
party to properly prepare for trial.’”). Plaintiffs knew who their treating physicians were or at
least had easy access to that information. Nonetheless, Plaintiffs failed to identify Jones and
Luna in their preliminary witness list and expert disclosure. [Docket Nos. 30, 40.] Plaintiffs
even failed to provide their identities after Defendant sent numerous emails to Plaintiffs pointing
out that Rule 26(a)(2)(A) requires that the identities of the treating physicians be disclosed.
[Docket No. 42, Exs. 1–2.] Plaintiffs knew the rule, failed to comply, and declined to identify
the witnesses when confronted by Defendant. Accordingly, Plaintiffs’ failure to identify Jones
and Luna as required by Rule 26(a)(2)(A) is neither substantially justified nor harmless.
Defendant’s motion to exclude [Docket No. 41] is therefore granted with respect to Jones and
Federal Rule of Civil Procedure 26 requires that expert witnesses provide certain
disclosures to the opposing party. Coleman v. Am. Family Mut. Ins. Co., 274 F.R.D. 641, 644
(N.D. Ind. 2011) (“A treating physician is an expert witness when he testifies about opinions
formed during or after treatment of a patient.”). Prior to being amended in 2010, Rule 26
required specifically retained expert witnesses to provide formal and detailed disclosures. Fed.
R. Civ. P. 26(a)(2). As such, treating physicians not retained to provide expert testimony could
usually be deposed or called to testify at trial without any requirement for a written report.
Wallace v. Hounshel, No. 1:06-CV-1560-RLY-TAB, 2008 WL 2704714, at *1 (S.D. Ind. July 3,
However, this rule produced a battle ground of litigation over the permissible scope of a
treating physician’s testimony and whether a treating physician was specifically retained to
testify at trial. See Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729, 734–735 (7th Cir. 2010)
(“[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).’”);
Musser v. Gentiva Health Servs., 356 F.3d 751, 758 n.3 (7th Cir. 2004) (“It is clear that there is
some expert testimony in the nature of the treating physician’s testimony that does not require a
report. But some district courts have suggested that if the Rule 26(a)(2)(A) testimony exceeds
the scope of treatment and ventures into more general expert opinion testimony, a report may be
necessary.”). Consequently, treating physicians who were in a position to offer expert testimony
at trial, but who had neither the time nor the inclination to provide a formal expert report, may
have been expected to meet the exacting report requirements with which other regularly retained
physicians were more accustomed.
To address this dilemma, Rule 26 was amended in 2010 to require “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.” Fed. R. Civil P. 26(a)(2)(C);
Coleman, 274 F.R.D. at 645. As the advisory committee’s notes reflect, “[t]his amendment
resolves a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B)
even from witnesses exempted from the report requirement.” The committee’s notes to Rule
26(a)(2)(C) further explain:
A witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify
as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or
705. Frequent examples include physicians or other health care professionals and
employees of a party who do not regularly provide expert testimony.
The parties agree that Chen must submit a summary disclosure under Rule 26(a)(2)(C).
[Docket No. 42 at 5; Docket No. 48 at 4.] However, the parties disagree whether medical
records are sufficient to satisfy Rule 26(a)(2)(C). [Docket No. 42 at 5; Docket No. 48 at 4.]
Under Rule 26(a)(2)(C), the summary disclosure must include:
(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.
Citing Valentine v. CSX Transp., Inc., No. 1:09–CV–1432–JMS–MJD, 2011 WL 2066705, at *5
(S.D. Ind. May 25, 2011), Plaintiffs claim that medical records are sufficient to satisfy Rule
26(a)(2)(C). However, Valentine explicitly states that “Defendant failed to provide any
indication as to the expected testimony of any of these witnesses as required by Rule 26.” Id.
Perhaps Plaintiffs misconstrue the court’s determination in Valentine that the nondisclosure was
harmless. Id. at *6. But in any event, this case does not stand for the proposition that medical
records are sufficient to satisfy Rule 26(a)(2)(C).
In contrast, Defendant cites Kristensen v. Spotnitz, No. 3:09-CV-00084, 2011 WL
5320686, at *2–4 (W.D. Va. June 3, 2011), for the proposition that medical records alone do not
satisfy Rule 26(a)(2)(C). In Kristensen, “Plaintiffs state[d] that they filed the April 28
summaries as a precaution, but that they nevertheless had ‘exceeded the requirement’ of Rule
26(a)(2)(C) by timely filing the complete medical records of the treating physicians.” Id. at *2.
Examining the definition of “summary,” the court opined that “a ‘summary’ is ordinarily
understood to be an ‘abstract, abridgment, or compendium . . . .’” Id. Consequently, the court
held that “Plaintiffs cannot comply with the rule by disclosing the complete records of the
treating physicians in issue.” Id.
Similarly, in Nicastle v. Adams County Sheriff’s Office, No. 10–CV–00816, 2011 WL
1674954, at *1 (D. Colo. May 3, 2011), the defendant’s disclosure was merely a citation to 963
pages of documents along with audio recordings and transcripts. The court found that the
“[d]esignation of such a prodigious volume of material does not constitute a summary of the
facts to which the witnesses will testify within the meaning and requirements of Rule
26(a)(2)(C).” Id. According to the court, “a summary is defined as a brief account that states the
main points of a larger body of information,” and by citing to “a large body of detailed
information . . . [defendant] fails to provide anything approaching a brief account or statement of
the main facts on which his experts will rely.” Id.; see also Certain Interested Underwriters at
Lloyd’s London v. Cooper, No. 3:10-CV-01382-JFA, 2012 WL 554577, at *6 (D.S.C. Feb. 21,
2012) (stating that a summary of the subject matter, facts, and opinions to which a witness is
expected to testify must be made by the attorney and not the witness).
The foregoing cases are persuasive. The advisory committee’s notes to the 2010
amendments to Rule 26(a)(2)(C) are consistent with Kristensen’s and Nicastle’s definitions of
“summary.” The advisory committee’s notes state that “[t]his disclosure is considerably less
extensive than the report required by Rule 26(a)(2)(B).” The committee’s notes also state that
courts should not require “undue detail” and the disclosure should not include “facts unrelated to
the expert opinions the witness will present.” Plaintiffs’ medical records go beyond a mere
summary and discuss facts unrelated to the treating physicians’ opinions, such as Zenaida’s
height, weight, age, and the details of her medical procedure. [See Docket No. 48, Ex. 1.]
Moreover, while the medical records touch on the subject matter of a treating physician’s
testimony, the records do not necessarily provide an accurate or complete summary of expected
testimony since medical records are not typically created in anticipation that those records would
be used as a witness disclosure. Furthermore, allowing a party to “go beyond” the requirements
of Rule 26(a)(2)(C) by providing medical records in lieu of a summary would invite a party to
dump a litany of medical records on the opposing party, contrary to the rule’s attempt to extract a
“summary.” See, e.g., Nicastle, 2011 WL 1674954, at *1 (citing to 963 pages of documents
along with audio recordings and transcripts is not a summary). Accordingly, medical records
alone do not comply with Rule 26(a)(2)(C).
Nonetheless, expert testimony should not be excluded if the lack of disclosure is
substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). With respect to Chen, the prejudice
and surprise is minimal since Plaintiffs filed their preliminary witness list on April 30, 2011,
putting Defendant on notice of Chen several months before the close of discovery. Moreover,
while the medical records do not constitute a summary under Rule 26(a)(2)(C), the records give
Defendant a general idea of Chen’s personal observations, diagnoses, and treatment. In light of
the approaching May 2012 trial date, any prejudice that exists can be cured by limiting Chen’s
testimony to the subject matter contained in the medical records and formed during the course of
treatment. See Crabbs v. Wal–Mart Stores, Inc., No. 4:09–CV–00519, 2011 WL 499141, at *2
(S.D. Iowa Feb. 4, 2011) (“In the absence of Rule 26(a)(2)(C) summaries, the opinion testimony
of [the] treating physicians . . . will be limited to the subject matter of their treatment as
disclosed in the medical records and to opinions formed in the course of the treatment provided
Defendant does not dispute that personal observations, diagnoses, and treatment are
contained in the medical records and stem from the course of treatment. However, Defendant
challenges Plaintiffs’ claim that “causation is as plain as day contained within the medical
records.” [Docket No. 48 at 9.] Chen’s records only state that the “patient is a 49-year-old
female who slipped and fell.” [See Docket No. 48, Ex. 1.] Nothing in the records indicate that
Chen reached a conclusion as to causation during the course of treatment. Most likely, Chen
simply wrote down what Zenaida said happened to her. This is why a Rule 26(a)(2)(C) summary
is important: it clarifies the expected testimony of a witness and the bases for the conclusions.2
To blindly spring causation testimony on Defendant two months before trial without the benefit
of any explanation or discovery is therefore extremely prejudicial.
While Plaintiffs could provide a belated summary describing the causation testimony,
that leaves Defendant little time to find a rebuttal witness and no room to depose Chen on the
subject of causation now that discovery is closed. See Tribble, 2012 WL 245029, at *5
(“Without proper disclosures, a party may miss its opportunity to disqualify the expert, retain
rebuttal experts, or hold depositions for an expert not required to provide a report.”); McGowan,
2011 WL 5374116, at *3 (“The Court finds that Defendant’s untimely disclosure and failure to
provide reports was harmful to the Plaintiff. Plaintiff had no opportunity to conduct discovery
on the experts’ opinions or to find rebuttal experts.”) Also, while allowing additional discovery
As noted, a treating physician offered to provide expert testimony as to causation, “but
who did not make that determination in the course of providing treatment,” was deemed to be
“‘retained or specially employed to provide expert testimony in the case,’ and thus . . . required
to submit an expert report in accordance with Rule 26(a)(2)[(B)].’” Meyers, 619 F.3d at 734–35.
However, after Myers was decided, Rule 26 was amended to include subpart C. Coleman, 274
F.R.D. at 645 (stating that Myers no longer applies in light of the summary disclosure
requirement). But see McAllister v. Town of Burns Harbor, No. 2:07-CV-141-JVB, 2011 WL
4916566, at *2 n.1 (N.D. Ind. Oct. 13, 2011) (“The Court cannot conclude, on the basis of the
Committee Notes, that Meyers is no longer valid.”). Even if the Court took the McAllister
approach, it would not change the result in this case since Plaintiffs also did not provide any sort
of Rule 26(a)(2)(B) disclosure.
could potentially cure the prejudice, any additional discovery would likely interfere with the
quickly approaching trial date. Thus, to cure the prejudice to Defendant, Chen should not be
permitted to testify to causation. Defendant’s motion to exclude is therefore granted to the
extent that Chen’s testimony is limited to personal observations, diagnoses, and treatment
contained in the medical records and formed in the course of treatment.
For the reasons above, Defendant’s motion to exclude [Docket No. 41] is granted in part
and denied in part. Jones and Luna are excluded from testifying. Chen’s testimony is limited to
personal observations, diagnoses, and treatment contained in the medical records and formed in
the course of treatment.
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
Ryan Bruce Bowers
BARNES & THORNBURG LLP
Sarah Jane Graziano
HENSLEY LEGAL GROUP
Matthew S. Winings
BARNES & THORNBURG
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