McCants v. Correct Care Solutions, LLC et al

Filing 46

ORDER granting 42 motion for relief from expert-witness disclosure requirement as to Dr. Koduri. Signed by Magistrate Judge James P. O'Hara on 9/5/2017. (amh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LISA McCANTS,
Plaintiff,
v.
CORRECT CARE SOLUTIONS, LLC and
KAY THOMPSON,
Defendants.

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Case No. 16-2787-DDC

ORDER
This employment discrimination case comes before the court on the motion of the
plaintiff, Lisa McCants, for relief from the directive in the Amended Scheduling Order1 that
she serve an expert-witness disclosure, in compliance with Fed. R. Civ. P. 26(a)(2)(C), for
her treating physician, Vinoya K. Koduri, M.D. (ECF No. 42). Plaintiff states Dr. Koduri
“will testify based upon his personal observations based on person [sic] knowledge, including
treatment of Ms. McCants,” and not as an expert witness.2 Defendant Correct Care
Solutions, LLC, does not oppose the motion to the extent Dr. Koduri will testify only as a lay
witness, but notes that if plaintiff plans to use Dr. Koduri “to testify as to the diagnosis and
causation of her purported hypertension and anxiety,” such testimony would fall in the realm

1

ECF No. 39.

2

ECF No. 42 at 2.

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of expert testimony requiring a Rule 26(a)(2)(C) summary disclosure.3 As discussed below,
plaintiff’s motion is granted, but with a caution.
Fed. R. Civ. P. 26(a)(2)(A) requires a party “to 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.” In 2010, sub-section (C) was added to Rule 26(a)(2) specifically to address
non-retained witnesses, such as treating physicians, who “may both testify as a fact witness
and also provide expert testimony.”4 Rule 26(a)(2)(C) eliminates the requirement of such
“hybrid” witnesses to file a detailed written expert report5 and instead requires only a written
disclosure stating “the subject matter on which the witness is expected to testify” and “a
summary of the facts and opinions to which the witness is expected to testify.” Since the
addition of sub-section (C), it is typical for plaintiffs to file a written disclosure for treating

3

ECF No. 45 at *1 (emphasis added). Defendant Kay Thompson did not file a
response to the motion and therefore is deemed not to oppose it. See D. Kan. Rule 7.4(b).
4

Fed. R. Civ. P. 26(a)(2)(C) Advisory Committee Notes to 2010 Amendments (“Rule
26(a)(2)(C) is added to mandate summary disclosures of the opinions to be offered by expert
witnesses who are not required to provide reports under Rule 26(a)(2)(B) and of the facts
supporting those opinions. . . . 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.
Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure
required under Rule 26(a)(2)(C). The (a)(2)(C) disclosure obligation does not include facts
unrelated to the expert opinions the witness will present.”)
5

See, e.g., Fed. R. Civ. P. 26(a)(2)(B).

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physicians they intend to call as witnesses.6
Plaintiff correctly points out, however, that the Tenth Circuit recognized in Guerrero
v. Meadows that a “treating physician does not need to be certified as an expert witness and
may testify as a lay witness [under Fed. R. Evid. 701] ‘if he or she testifies about
observations based on personal knowledge, including the treatment of the party.’”7 Thus, if
plaintiff truly wishes to offer only Dr. Koduri’s lay opinion, then plaintiff is correct that she
need not produce a Rule 26(a)(2)(C) disclosure.
The court, however, cautions plaintiff that this is a risky position to take. Without a
Rule 26(a)(2)(C) disclosure, it is very possible that the presiding judge will not permit Dr.
Koduri to testify about the cause of plaintiff’s purported hypertension and anxiety. Under
Rule 701, opinion lay testimony is testimony that is “rationally based on the witness’s
perception,” and (at least since the adoption of subsection (c) in 2000) not “based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.”8 At least

6

See, e.g., Morre v. Univ. of Kan., No. 14-2420-SAC, 2016 WL 1261041, at *1-2 (D.
Kan. March 30, 2016) (ruling non-retained treating physician must provide a Rule
26(a)(2)(C) expert disclosure even where his or her “proposed testimony includes
information solely about his or her treatment [and diagnosis] of the patient”); Hayes v. Am.
Credit Acceptance LLC, No. 13-2413, 2014 WL 3927277, at *3 (D. Kan. Aug. 12, 2014)
(requiring Rule 26(a)(2)(C) disclosures discussing “why the treating physicians believe that
the defendants’ conduct caused their patients’ conditions to worsen”).
7

Guerrero v. Meadows, 646 F. App’x 597, 602 (10th Cir. April 29, 2016) (quoting
Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999)).
8

The court notes that Davoll v. Webb, the case Guerrero relied upon in reaching its
holding, was decided prior to the 2000 amendments to Rule 701. Subsection (c) of that rule
was added “to eliminate the risk that the reliability requirements set forth in Rule 702 will
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one court has recognized that “the Tenth Circuit has not defined the bounds of permissible
testimony for a treating physician as a lay witness,”9 but concluded “opinions regarding
diagnosis of a medical condition are almost always expert testimony, because diagnosis
requires judgment based on scientific, technical, or specialized knowledge in almost every
case.”10 Should plaintiff wish to reconsider her position, the court grants her until September
11, 2017, to serve a Rule 26(a)(2)(C) disclosure for Dr. Koduri.
IT IS SO ORDERED.
Dated September 5, 2017, at Kansas City, Kansas.

s/James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

be evaded through the simple expedient of proffering an expert in lay witness clothing. . . .
The amendment makes clear that any part of a witness’ [sic] testimony that is based upon
scientific, technical, or other specialized knowledge within the scope of Rule 702 is governed
by the standards of Rule 702 and the corresponding disclosure requirements.” Fed. R. Evid.
701 Advisory Committee Notes to 2000 Amendments.
9

Peshlakai v. Ruiz, No. Civ. 13-0752, 2013 WL 6503629, at *18 n.8 (D.N.M. Dec. 7,
2013) (cited in United States v. Powers, 578 F. App’x 763, 775 (10th Cir. 2014)).
10

Id. at *17 (citing James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1214
(10th Cir. 2011)). See also Parker v. Cent. Kan. Med. Ctr., 178 F. Supp. 2d 1205, 1210 (D.
Kan. 2001) (“Any conclusions drawn by [the treating physician] must fall within the province
of a lay witness who has personal knowledge of the situation.”).
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