Hayes et al v. American Credit Acceptance, LLC et al
Filing
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MEMORANDUM AND ORDER denying 52 Motion to Strike. Within fourteen (14) calendar days from the date of this order, plaintiffs shall serve supplemental Rule 26(a)(2) disclosures as directed in this order. Signed by Magistrate Judge K. Gary Sebelius on 8/12/14. (bh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GINGER HAYES, et al.,
Plaintiffs,
v.
AMERICAN CREDIT
ACCEPTANCE, LLC, et al.,
Defendants,
and
REPO REMARKETING, INC.,
Third-Party Defendant.
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Case No. 13-2413-RDR
MEMORANDUM AND ORDER
This matter comes before the court upon Defendant Find Track Locate, Inc.’s Motion to
Strike Plaintiffs’ Rule 26(a)(2) Expert Designations (ECF No. 52). For the reasons explained
below, Find Track Locate’s motion is denied.
I.
Background
Plaintiffs Ginger A. Hayes, Richard W. Hayes, and Richard L. Hayes assert claims
against the defendants stemming from incidents associated with attempts to collect an alleged
debt and enforce a security interest. They assert claims under the Kansas Consumer Protection
Act (KCPA), 50 K.S.A. 623, et seq. The Second Amended Complaint also alleges that Plaintiffs
Ginger W. Hayes and Richard W. Hayes are considered disabled persons under the KCPA,
which would entitle them to enhanced penalties if they prevail. Plaintiffs allege that Ginger W.
Hayes is a disabled person because she suffers from and is treated for anxiety.1 They allege
Richard L. Hayes is a disabled person because he suffers from severe coronary artery disease.2
On April 3, 2014, plaintiffs designated their expert witnesses. Included in the
designations are “non-retained expert Dr. Robert Mingle” and “non-retained expert Dr. Charles
Barth, III.”3 Dr. Mingle is Ginger Hayes’ treating physician, and Dr. Barth is Richard L. Hayes’
treating physician. The disclosures state that the treating physicians are anticipated to testify
about their patients’ health conditions, which may ultimately support a finding that they are
“disabled persons” under K.S.A. § 50-676(b), and the treating physicians are also anticipated to
testify that their patients’ health conditions were aggravated as a proximate result of defendants’
conduct.
II.
Discussion
Although plaintiffs’ disclosures specify that the treating physicians are non-retained
experts, Defendant Find Track Locate (FTL) contends that the scope of the treating physicians’
anticipated testimony would render them subject to the requirements of retained experts, which
would include submission of formal expert reports. Because the treating physicians did not
submit formal expert reports, FTL argues that the court should strike their expert designations.
Alternatively, FTL argues that even if the scope of the treating physicians’ proposed testimony
does not render them subject to the requirements of formal experts, plaintiffs’ summaries of the
treating physicians’ anticipated testimonies are also insufficient, and for that reason, the court
should also strike their designations.
1
Second Am. Compl. at ¶ 71.
2
Id. at ¶ 73.
3
Pls.’ Expert Witness Designations at 2, ECF No. 47.
2
Rule 26(a)(2) governs disclosure of expert testimony. A witness “retained or specifically
employed to provide expert testimony in the case or one whose duties as the party’s employee
regularly involve giving expert testimony” must prepare an expert report.4
The report must contain:
(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.
Rule 26 was amended in 2010 to require a more limited disclosure regarding the testimony of
other “non-retained experts.” Under Rule 26(a)(2)(C), this disclosure must state “the subject
matter on which the witness is expected to present evidence under Federal Rule of Evidence 702,
703, or 705” and “a summary of the facts and opinions to which the expert is expected to
testify.”5 The purpose behind the more limited disclosure required under Rule 26(a)(2)(C) was to
resolve the tension that has often prompted courts to require a formal expert witness report from
a witness who would usually be exempted from the requirement, such as a treating physician.6
4
Fed. R. Civ. P. 26(a)(2)(B).
5
Fed. R. Civ. P. 26(a)(2)(C).
6
Fed. R. Civ. P. 26 advisory committee’s note to the 2010 amendments.
3
Prior to the 2010 amendments, this court held open the possibility that a treating
physician could be subject to Rule 26(a)(2)(B)’s requirement of a formal expert report depending
on the scope of the treating physician’s testimony. Specifically, the court would consider
whether the physician’s anticipated testimony included information and opinions developed and
drawn during the treatment of the patient.7 Generally,
[t]o the extent that the treating physician testifies only as to the
care and treatment of his/her patient, the physician is not to be
considered a specially retained expert notwithstanding that the
witness may offer opinion testimony under Fed. R. Evid. 702, 703,
and 705. However, when the physician’s proposed opinion
testimony extends beyond the facts made known to him during the
course of the care and treatment of the patient and the witness is
specifically retained to develop specific opinion testimony, he
becomes subject to the provisions of Fed. R. Civ. P. 26(a)(2)(B).
The determinative issue is the scope of the proposed testimony.8
This district has generally allowed “treating physicians to opine on causation without a fullblown expert report where the cause of injury is a necessary part of a patient’s treatment.”9
FTL raises issue with proposed testimony that the plaintiffs are disabled persons under
K.S.A. 50-676(b) and proposed testimony that plaintiffs medical conditions were aggravated as a
“proximate result” of defendants’ conduct. FTL contends this testimony calls for legal
conclusions and medical conclusions that are beyond that which are incidental to the care and
treatment of plaintiffs. FTL also contends that plaintiffs’ counsel could not confirm that these
opinions are contained in the treating physicians’ records or that the treating physicians provided
care and treatment to these plaintiffs during the time period at issue in the amended complaint.
7
Jones v. Greyhound Lines, Inc., No. 08-1185-MLB-DWB, 2009 WL 2195760, at *3 (D. Kan. July 22, 2009).
8
Id. at *2 (quoting Wreath v. United States, 161 F.R.D. 448, 450 (D. Kan. 1995)).
9
Id. (citing cases); see also Stanton v. Greens at Shawnee Apartments Mgmt. Co., No. 11-2478-CM, 2012 WL
4867228, at *4 (D. Kan. Oct. 15, 2012) (Noting that “[c]ourts have found a variety of subjects are properly within a
treating physician’s opinion and not subject to Rule 26(a)(2)” and citing cases).
4
Although FTL speculates that the treating physicians’ records may not support the
anticipated testimony, there is simply nothing contained within plaintiffs’ disclosures definitively
establishing that the anticipated testimony concerns anything other than information and
opinions developed during the course of treatment. The fact that medical records may or may not
memorialize the anticipated opinions is not the determinative factor for whether the treating
physicians would be subject to the requirements of retained experts. The issue is whether it is
apparent that the anticipated opinion testimony extends beyond the information made known to
the treating physicians during their care and treatment of their patients. Because this does not
appear to be the case, the court finds that the treating physicians’ anticipated testimony does not
call for them to provide Rule 26(a)(2)(B) expert witness reports.
The court must then decide whether plaintiffs’ disclosures adequately comply with Rule
26(a)(2)(C), governing the disclosure of testimony from non-retained experts. As Magistrate
Judge Kenneth G. Gale noted in a 2013 opinion, there is scant case law outlining what
constitutes a sufficient disclosure under Rule 26(a)(2)(C).10 At a minimum, the disclosure should
obviate the danger of unfair surprise regarding the factual and opinion testimony of the nonretained expert.11 It is not enough to state that the witness will testify consistent with information
contained the medical records or consistent with the testimony given during his or her
deposition.12 Instead, Rule 26(a)(2)(C) disclosures must contain more than a passing reference to
10
Shepeard v. Labette Cnty. Med. Ctr., No. 11-1217-MLB-KGG, 2013 WL 881847, at *1 (D. Kan. Mar. 7, 2013).
11
See id.
12
See, e.g., Kondragunta v. Ace Doran Hauling & Rigging Co., No. 1:11-cv-01094-JEC, 2013 WL 1189439, at *6
(N.D. Ga. Mar. 21, 2013) (finding it insufficient that a party provided medical records in lieu of a summary of
testimony); Nicastle v. Adams Cnty. Sheriff’s Office, No. 10-cv-00816-REB-KMT, 2011 WL 1655547, at *3 (D.
Colo. Apr. 29, 2011) (finding it insufficient that non-retained expert witnesses would testify consistent with all
matters raised in their depositions).
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the general type of care a treating physician provided.13 They must summarize actual and
specific opinions.14 The disclosing party should provide “a brief account that states the main
points” of the entirety of the anticipated testimony.15 This does not mean that the disclosures
must outline each and every fact to which the non-retained expert will testify or outline the
anticipated opinions in great detail. Imposing these types of requirements would make the Rule
26(a)(2)(C) disclosures more onerous than Rule 26(a)(2)(B)’s requirement of a formal expert
report. That was certainly not the intent behind the 2010 amendments to the rule. Instead, the
court “must take care against requiring undue detail, keeping in mind that these witnesses have
not been specially retained and may not be as responsive to counsel as those who have.”16
FTL makes conclusory statements that plaintiffs’ Rule 26(a)(2)(C) disclosures are
insufficient because they only generally describe the subject matter of the anticipated testimony
and do not summarize the proposed opinions or the facts. This assessment is only partially
correct. The disclosures state the treating physicians are expected to testify about Mr. and Ms.
Hayes’ specific medical conditions, which could support a finding that they are “disabled
persons” under K.S.A. § 50-676(b). The disclosures go on to detail the type of prescription
medication Ms. Hayes uses and the specific cardiovascular procedures Mr. Hayes has undergone.
This is sufficient to put defendants on notice regarding the anticipated testimony concerning Mr.
and Ms. Hayes’ alleged disabilities under the KCPA. The disclosures fall short, however,
13
See Shepeard, 2013 WL 881847, at *1.
14
See id.
15
A.R. by Pacetti v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, No. 12-cv-02197-RM-KLM,
2013 WL 5462277, at *3 (Sept. 30, 2013) (quoting Nicastle v. Adams Cnty. Sheriff’s Office, No. 10-cv-00816-REBKMT, 2011 WL 1674954, at *1 (D. Colo. May 3, 2011)).
16
Valentine v. CSX Transp., Inc., No. 09-1432-JMS-MJD, 2011 WL 7784120, at *4 (S.D. Ind. May 10, 2011).
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concerning the anticipated testimony that defendants’ conduct proximately caused Mr. and Ms.
Hayes’ respective health conditions to worsen. The disclosures lack any factual detail describing
how this is the case. The disclosures need to be more specific with regard to why the treating
physicians believe that the defendants’ conduct caused their patients’ conditions to worsen and
how their patients’ conditions worsened as a result of the defendants’ actions. The addition of
this information would put defendants on notice regarding the basis for this line of anticipated
testimony.
Because plaintiffs’ disclosures fail to fully comply with Rule 26(a)(2)(C), the court must
consider whether to strike the disclosure under Rule 37(c). When a party fails to provide the
information required under Rule 26(a)(2), the party is not allowed to use that witness to supply
evidence “unless the failure was substantially justified or is harmless.”17 “The determination of
whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the
district court.”18 While a court “need not make explicit findings concerning the existence of a
substantial justification or the harmlessness of a failure to disclose,” the court should be guided
by the following factors: 1) the prejudice or surprise to the party against whom the testimony is
offered, 2) the ability to cure any prejudice, 3) the potential for trial disruption if the testimony is
allowed, and 4) the erring party’s bad faith or willfulness.19 The burden to demonstrate
substantial justification and the lack of harm is on the party who failed to make a proper
17
Fed. R. Civ. P. 37(c)(1); see also Jacobsen v. Deseret Book Co., 287 F.3d 936, 952 (10th Cir. 2002); see In re
Cessna 208 Series Aircraft Prods. Liab. Litig., 2008 WL 4937651, at *3) (“Rule 37(c)(1) provides that a party that
without substantial justification fails to disclose information required by Rule 26(a) or 26(e) is not—unless such
failure is harmless—permitted to use as evidence at a trial, at a hearing or on a motion any witness or information
not so disclosed.”).
18
Sibley, No. 08-2063-KHV, 2013 WL 1819773, at *7 (citations omitted).
19
Id. (citing Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999);
Gutierrez v. Hackett, 131 F. App’x 621, 625-26 (10th Cir. 2005)).
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disclosure.20 The primary goal of sanctions is to deter misconduct.21 “In ruling on a motion to
exclude expert testimony under Rule 37(c)(1), the court should bear in mind that it is a ‘drastic
sanction.’”22
Plaintiffs’ disclosures put the defendants on notice generally that the treating physicians
would be testifying their conduct proximately caused plaintiffs’ medical conditions to worsen.
Despite the disclosures’ lack of specificity, defendants should not be surprised by this line of
anticipated testimony. Moreover, any prejudice resulting from the lack of specificity can be
cured by allowing plaintiffs to supplement their disclosures. Providing additional time will not
delay these proceedings. The court has temporarily suspended all case management deadlines to
accommodate the participation of a newly named defendant. Finally, there is no indication of a
willful failure or bad faith on the part of the plaintiffs. For these reasons, the court denies
defendants’ motion and orders plaintiffs to serve supplemental Rule 26(a)(2) disclosures that
contain the information outlined in this order.
Accordingly,
IT IS THEREFORE ORDERED that Defendant Find Track Locate, Inc.’s Motion to
Strike Plaintiffs’ Rule 26(a)(2) Expert Designations (ECF No. 52) is denied.
IT IS FURTHER ORDERED that within fourteen (14) calendar days from the date of
this order plaintiffs shall serve supplemental Rule 26(a)(2) disclosures as directed above.
IT IS SO ORDERED.
Dated this 12th day of August, 2014, at Topeka, Kansas.
20
A.H. v. Knowledge Learning Corp., No. 09-2517-DJW, 2010 WL 4272844, at *5 (D. Kan. Oct. 25, 2010)
(citations omitted).
21
Burton v. R.J. Reynolds Tobacco Co., 203 F.R.D. 636, 640 (D. Kan. 2001).
22
A.H., 2010 WL 4272844, at *5 (citing Myers v. Mid-West Nat. Life Ins. Co., No. 04–cv–00396–LTB–KLM, 2008
WL 2396763, at *2 (D. Colo. June 9, 2008); Burton, 203 F.R.D. at 640)).
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s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge
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