Ace American Insurance Co. et al v. McDonald's Corporation
Filing
15
MEMORANDUM OPINION signed by Judge George Levi Russell, III on 6/28/2012. (bf2, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ACE AMERICAN INSURANCE CO.,
et al.,
:
:
Plaintiff,
:
v.
Civil Action No. GLR-11-3150
:
MCDONALD’S CORP.,
:
Defendant.
:
MEMORANDUM OPINION
THIS MATTER is before the Court on McDonald’s Corporation’s
(“McDonald’s”)
Motion
to
Strike
Plaintiffs’
Ace
American
Insurance Co. (“Ace American”) Rule 26(a)(2) Disclosures.
No. 13).
(ECF
This is a negligence and liability case involving the
extent to which McDonald’s is liable for Plaintiff Diane Hines’
injuries, which allegedly occurred after Ms. Hines slipped and
fell while inside McDonald’s.
The issues before the Court are:
(1)
Rule
whether
Ace
American’s
26(a)(2)
disclosures
were
untimely; (2) whether Ace American’s Rule 26(a)(2) disclosures
were
not
in
compliance
with
Rule
26(a)(2)(B)
and
Rule
26(a)(2)(C); and (3) whether the Court should grant McDonald’s
Motion
to
Strike
Ace
American’s
Rule
26(a)(2)
because they were untimely and incomplete.
that:
(1)
Ace
American’s
disclosures
were
Disclosures
The Court concludes
untimely;
(2)
Ace
American’s Rule 26(a)(2) disclosures were in non-compliance with
Rule 26(a)(2)(B) and (C); and (3)
while Ace American’s Rule
26(a)(2) disclosures were untimely and in non-compliance, the
failed disclosures are substantially justified or harmless under
Rule
37(c)(1).
Accordingly,
for
the
reasons
outlined
in
specific detail below, the Court denies McDonald’s Motion to
Strike Ace American’s Rule 26(a)(2) Disclosures, and orders Ace
American
to
26(a)(2)(C)
timely
file
disclosure
an
appropriate
consistent
with
the
supplemental
Rule
within
Rule
seven
days of this order.
I. BACKGROUND
This negligence and premises liability case involves the
extent
of
McDonald’s
Plaintiff Diane Hines.
liability
for
the
alleged
injury
of
According to the Complaint, Ms. Hines is
an employee of Dunbar Armored, Inc. (“Dunbar”) and is covered by
Ace American Insurance.
While making a pick-up for Dunbar at
McDonald’s, Ms. Hines slipped and fell on grease left on the
floor of McDonald’s premises.
complaint,
filed
on
November
(Compl. ¶ 10, ECF No. 2).
4,
2011,
centers
on
The
McDonald’s
failure to perform its duty of ordinary and reasonable care to
maintain safe premises that are free of hazards or to warn Ms.
Hines of the dangerous condition.
of
McDonald’s
(Compl. ¶ 18).
alleged
breach,
Ms.
(Compl. ¶ 17).
Hines
As a result
sustained
injuries.
Ace American and Dunbar have paid and provided
2
worker’s compensation benefits to Ms. Hines, and seek judgment
in the amount of $500,000 against McDonald’s, plus costs of
proceedings, interest, and attorney’s fees.
(Compl. ¶ 18).
The initial Scheduling Order dated November 10, 2011, (ECF
No.
8),
was
modified
on
November
23,
2011.
(ECF
No.
10).
According to the modified Scheduling Order, the deadline for
preliminary discovery, which would include written discovery and
deposition of fact witnesses, is July 27, 2012.
Counsel 1, Nov. 23, 2011, ECF No. 10).
Ace American’s Rule
26(a)(2) disclosures were due on May 9, 2012.
Counsel 2, Nov. 23, 2011).
(Ct. Mem. To
(Ct. Mem. To
Ace American did not provide Rule
26(a)(2) disclosures until May 14, 2012.
(Def.’s Mot. Strike ¶
1, ECF No. 13; Pls.’ Resp. Opp’n ¶ 4, ECF No. 14).
In those
disclosures, Ace American did not provide expert reports and
only disclosed the names and addresses of Ms. Hines’ treating
physicians.
(Def.’s Mot. Strike ¶¶ 5-6; Pls.’ Resp. Opp’n, Ex.
B).
McDonald’s
filed
a
Motion
to
Strike
Plaintiffs’
Rule
26(a)(2) Disclosures for failure to comply with the requirements
of Rule 26(a)(2)(B) and Rule 26(a)(2)(C).
¶¶ 5-6).
(Def.’s Mot. Strike
In response, Ace American stated that it decided not
to utilize a liability expert and that “[a]ll of the experts
identified in Plaintiffs’ expert disclosure are Plaintiff Diane
Hines’ treating physicians . . . and are not required to be
3
identified
(Pls.’
as
Resp.
expert
Opp’n
¶
witnesses
5).
pursuant
McDonald’s’
to
Motion
Rule
to
26(a)(2).”
Strike
Ace
American’s Rule 26(a)(2)Disclosures is now before the Court for
consideration.
II. DISCUSSION
A. Standard of Review
Federal
Rule
of
Civil
Procedure
26(a)(2)(A)
requires
litigants to disclose “the identity of any witness [they] may
use at trial to present evidence under Federal Rule of Evidence
702, 703, or 705.”
Fed.R.Civ.P. 26.
Rule 26(a)(2)(B) further
requires litigants to produce written reports for any witness
who
is
“retained
or
specially
employed
to
provide
expert
testimony in the case” or “whose duties as the party's employee
regularly involve giving expert testimony.”
Those reports must
include:
(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.
Fed.R.Civ.P. 26(a)(2)(B).
Rule
26(a)(2)(C),
while
less
onerous,
requires
that
the
disclosure of witnesses who do not need to provide a written
4
report
must
provide:
“(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.”
Rule
26(a)(2)
Fed.R.Civ.P. 26(a)(2)(C).
Rule
37(c)(1)
requirements
by
“gives
“forbidding
teeth”
a
to
the
party's
use
of
improperly
disclosed information at a trial, at a hearing, or on a motion,
unless
the
party's
failure
justified or harmless.”
to
disclose
is
substantially
Tokai Corp. v. Easton Enterprises, 632
F.3d 1358, 1365 (Fed. Cir. 2011) (citing Yeti By Molly Ltd. v.
Deckers Outdoor Corp.,
259 F.3d 1101, 1106 (9th Cir. 2001))
(internal quotations omitted).
failure
to
disclose
was
In determining whether a party’s
substantially
justified
or
harmless,
this Court is guided by consideration of five factors: (1) the
surprise
to
the
party
against
whom
the
evidence
would
be
offered; (2) the ability of that party to cure the surprise; (3)
the extent to which allowing the evidence would disrupt the
trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the
evidence.
Southern States Rack and Fixture, Inc. v. Sherwin-
Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).
facing
sanctions
bears
the
burden
5
of
establishing
The party
that
its
omission was justified or harmless.
Carr v. Deeds, 453 F.3d
593, 602 (4th Cir. 2006).
Because a party’s failure to make the disclosures required
by Rule 26(a)(2) “unfairly inhibits its opponent's ability to
properly
prepare,
undermines
district
the
court
unnecessarily
district
has
court's
prolongs
management
“particularly
sanctions under Rule 37(c)(1).
wide
litigation,
of
the
latitude”
and
case,”
to
a
order
Id. at 604.
B. Analysis
1. Ace American’s
Untimely
Ace
American’s
Rule
Rule
26
26(a)(2)
(a)(2)
Disclosures
disclosures
were
Were
untimely
because they were filed four days after the deadline stated on
the
Court’s
Scheduling
Order.
Regarding
the
timeliness
to
disclose expert testimony, Rule 26 states: “A party must make
these disclosures at the times and in the sequence that the
court orders.”
Fed.R.Civ.P. 26(a)(2)(D).
The extent of the
disclosure required under Rule 26 (a)(2) depends on whether the
witnesses are expert witnesses “retained or specially employed
to
provide
“hybrid
expert
fact/expert
26(a)(2)(A).”
testimony”
witness
or
whether
pursuant
to
the
Fed.
witnesses
R.
Civ.
are
P.
MD R USDCT CIV Rule 104.10; Fields v. Allstate
Corp., CIV.A. CBD-11-653, 2012 WL 1792639 at *2 (D. Md. May 15,
2012).
Experts that are specially retained are governed by Rule
6
26(a)(2)(B), while hybrid witnesses such as treating physicians
are governed by Rule 26(a)(2)(C).
Fed.R.Civ.P.26; MD R USDCT
CIV Rule 104.10; Fields, 2012 WL 1792639 at *2.
Here, the Court’s Scheduling Order clearly indicated that
Ace American’s Rule 26(a)(2) disclosures were required by May 9,
2012.
(Ct. Mem. To Counsel 2, Nov. 23, 2011).
disclosures,
2012.
however,
were
(Def.’s
Although
Mot.
Ace
American
emailed
Strike
¶
to
1;
contends
Ace American’s
McDonald’s
Pls.’
that
Resp.
their
on
May
Opp’n
Rule
14,
¶
4).
26(a)(2)
disclosure was not untimely because they were not required to
identify
hybrid
witnesses
American is incorrect.
104.10.
pursuant
to
Rule
26(a)(2),
Ace
See Fed.R.Civ.P.26; MD R USDCT CIV R
Pursuant to Rule 26(a)(2)(C), Ace American was required
to disclose the identity of its hybrid fact/expert witnesses as
well as provide the additional information indicated in Rule
26(a)(2)(C).
The
disclosure
of
required under Rule 26(a)(2)(C).
only
identified
treating
the
treating
physicians
is
Thus, even though Ace American
physicians,
Ace
American
untimely
submitted its Rule 26(a)(2) disclosures on May 14, 2012.
2. While Ace American’s Rule 26 (a)(2)(B) Disclosures
Were Complete, Their Rule 26(a)(2)(C) Disclosures Were
Incomplete
Ace American’s Rule 26(a)(2)(B) disclosures were complete
because Ace American was not required to provide a comprehensive
report for Ms. Hines’ treating physicians.
7
Ace American’s Rule
26(a)(2)(C) disclosures were incomplete, however, because Ace
American was required to provide a summary of the facts and
opinions
to
which
the
treating
physicians
listed
were
to
testify.
Rule
26(a)(2)
distinction
disclosure
of
of
requires
which
the
is
two
types
critical
identity
of
but
any
of
disclosures,
often
witness
the
overlooked:
“(1)
who
may
provide
opinion testimony at trial in accordance with Fed. R. Evid. 702,
703, and 705; and (2) the far more comprehensive written and
signed report which Rule 26(a)(2)(B) requires for ‘a witness who
is retained or specially employed to provide expert testimony .
. . .’”
Sullivan v. Glock, Inc., 175 F.R.D. 497, 500 (D. Md.
1997)(emphasis in original).
Rule 26(a)(2)(A) applies to hybrid
fact/expert witnesses.
Treating physicians are recognized
Id.
as hybrid fact/expert witnesses and, generally, are not required
to provide a Rule 26(a)(2) expert report.
Id.; Kristensen ex
rel. Kristensen v. Spotnitz, No. 3:09-cv-00084, 2011 WL 5320686
at *1 (W.D. Va. June 3, 2011).
Since December 2010, however,
Rule 26(a)(2)(C) requires that disclosure of hybrid fact/expert
witnesses must include more than mere identification.
Mezu v.
Morgan State Univ., 269 F.R.D. 565, 581 n.15 (D. Md. 2010);
Kristensen, 2011 WL 5320686 at *2.
Rule 26(a)(2)(C) expanded
“the
26(a)(2)(A)
disclosures
required
for
Rule
witnesses
to
include a disclosure of ‘the subject matter on which the witness
8
is expected to present evidence under Federal Rule of Evidence
702, 703, or 705,’ as well as ‘a summary of the facts and
opinions to which the witness is expected to testify.’” Mezu,
269 F.R.D. at 581 n.15 (internal citation omitted).
Ace American’s Rule 26(a)(2)(B) disclosures were complete
because Ace American did not retain a liability expert and plans
to utilize only hybrid fact/expert witnesses that are exempt
from Rule 26(a)(2)(B).
McDonald’s argues that Ace American did
not identify which of the persons listed on Ace American’s Rule
26(a)(2)
disclosures
Strike ¶ 5).
were
treating
physicians.
(Def.’s
Mot.
Ace American’s Rule 26(a)(2) disclosure, however,
stated that “[t]hese treating physicians may include, but are
not limited to, the following . . . ,” and then proceeded to
list Ms. Hines’ treating physicians. (Pls.’ Resp. Opp’n, Ex. B).
All of Ms. Hines’ treating physicians are hybrid fact/expert
witnesses that are exempt from the reporting requirements under
Rule
26(a)(2)(B).
104.10.
See
Fed.R.Civ.P.26;
MD
R
USDCT
CIV
Rule
Additionally, Ace American’s response indicated that
Ace American decided not to use a liability expert.
Thus, Ace
American complied with Rule 26(a)(2)(B) because Ace American had
no experts that needed to be disclosed under Rule 26(a)(2)(B).
Even though Ace American complied with the requirement of
Rule 26(a)(2)(B), Ace American’s Rule 26(a)(2) disclosures were
incomplete because Ace American failed to provide a summary of
9
the facts and opinions to which the treating physicians listed
were to testify.
Ace American argues that “all of the experts
identified in Plaintiffs’ expert disclosure are . . . treating
physicians . . . and are not required to be identified as expert
witnesses pursuant to Rule 26(a)(2).”
This is incorrect.
(Pls.’ Resp. Opp’n ¶ 5).
Ace American misinterprets the requirements
under Federal Rule 26 and Local Rule 104.10.
While treating
physicians are hybrid fact/expert witnesses that are exempt from
being required to submit a comprehensive report required under
Rule 26(a)(2)(B), these hybrid fact/expert witnesses still must
be disclosed pursuant to Rule 26(a)(2)(A).
Further, pursuant to
Rule 26(a)(2)(C), these hybrid witnesses must also provide a
“summary of facts and opinions to which the witness is expected
to testify.”
Fed.R.Civ.P.26(a)(2)(C); MD R USDCT CIV Rule 104.
Ace American failed to do so.
The only information that Ace
American disclosed regarding the treating physicians was their
identity and an address.
American’s
Rule
26(a)(2)
(Pls.’ Resp. Opp’n, Ex. B).
disclosures
were
Thus, Ace
incomplete
because
they failed to comply with Rule 26(a)(2)(C).
3. The Untimely and Incomplete Nature of Ace American’s
Rule 26(a)(2) Disclosures Are Substantially Justified
or Harmless under Rule 37(c)(1)
Although
Ace
American’s
Rule
26
(a)(2)
disclosures
were
untimely and in non-compliance, and arguably rendered McDonald’s
unable
to
“comply
with
its
own
10
Rule
26(a)(2)
disclosure
requirements,”
McDonald’s
(Def.’s
Motion
Disclosures
Mot.
to
Strike
Strike
because
the
Ace
¶
7),
the
American’s
delay
and
Court
Rule
denies
26(a)(2)
incompleteness
are
substantially justified or harmless under Rule 37 (c)(1).
Federal
Rule
of
Civil
Procedure
failure to make disclosures.
provides
37(c)(1)
untimely
states
or
that
governs
See Fed.R.Civ.P.37.
inadequate
“the
37(c)(1)
party
expert
is
not
If a party
disclosures,
allowed
the
to
use
Rule
that
information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially
justified or is harmless.”
WL
1792639
at
*2.
On
Fed.R.Civ.P.37(c)(1); Fields, 2012
motion,
the
Court
may
choose
to
additionally or alternatively “(A) . . . order payment of the
reasonable expenses, including attorney’s fees, caused by the
failure; (B) . . . inform the jury of the party’s failure; and
(C) . . . impose other appropriate sanctions, including any of
the
orders
listed
in
Rule
37(b)(2)(A)(i)-(vi).”
Fed.R.Civ.P.37(c)(1)(A)-(C).
The Fourth Circuit has held that district courts have broad
discretion
determining
and
should
whether
consider
the
the
following
nondisclosure
of
factors
evidence
substantially justified or harmless under Rule 37(c)(1):
11
when
is
(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that
party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing
party's explanation for its failure to disclose the
evidence.
Southern States, 318 F.3d at 597.
The purpose of Rule 37(c)(1) is to prevent a party from
surprising and, thus, prejudicing the opposing party. Southern
States, 318 F.3d at 596.
Hence, the Fourth Circuit’s test “does
not require a finding of bad faith or callous disregard of the
discovery rules.”
Id.
the fifth factor.”
Id. at 598.
Furthermore,
Rule
Bad faith, however, may be “relevant to
26(e)
requires
that
disclosures
made
under Rule 26(a) must be timely supplemented if a party learns
that “the disclosure or response is incomplete or incorrect . .
. or as ordered by the court.”
Fed.R.Civ.P. 26(e).
In this case, the Southern States factors weigh against
striking Ace American’s Rule 26(a)(2) disclosures.
Regarding
the first two factors, the issue of surprise and ability to cure
the
surprise,
the
litigation
is
in
an
early
discovery deadline is not until July 27, 2012.
10).
Ace
stage.
The
(See ECF No.
Hence, no surprise will occur if, pursuant to Rule 26(e),
American
supplements
its
Rule
conform with this Court’s Order.
26(a)(2)(C)
disclosures
to
Regarding the third factor, no
trial date has been set yet, so the issue of trial disruption
12
can be avoided if a supplemental Rule 26(a)(2)(C) disclosure is
timely filed pursuant to Rule 26(e).
Likewise, even though a
settlement conference is scheduled for August 27, 2012, a timely
filed supplemental Rule 26(a)(2)(C) disclosure is unlikely to
disrupt
those
American’s
proceedings.
Rule
26(a)(2)
American’s case.
Regarding
disclosures
factor
are
four,
essential
to
Ace
Ace
Since Ace American decided not to retain a
liability expert and instead included all of Ms. Hines’ treating
physicians
on
Ace
American’s
Rule
26(a)(2)
disclosure,
the
information to which Ms. Hines’ treating physicians would likely
testify
is
critical.
These
treating
should be allowed to testify.1
physicians,
therefore,
Finally, regarding the fifth
factor, Ace American’s explanation for failing to disclose the
requisite
information
was
that
Ace
American
believed
it
did
comply with the disclosures under Rule 26(a)(2) based on their
understanding of the requirements. It is clear that Ace American
did not understand the requirements under Rule 26 (a)(2)(C) and
Local Rule 104.10.
This is not uncommon; Rule 26 disclosures
have been a “trap for the unwary” for quite some time.
Sullivan,
between
175
hybrid
F.R.D.
at
witnesses
500-01
and
(noting
a
1
that
retained
the
expert
See
distinction
is
“often
The Court will only permit Ms. Hines’ treating physicians
to function as hybrid fact/expert witnesses, as disclosed by Ace
American, meaning that these treating physicians may only base
their opinions on “information learned during the actual
treatment of the patient . . . .” Sullivan, 175 F.R.D. at 501.
13
overlooked in practice”).
In this case, there is sufficient
time to supplement the Rule 26(a)(2) disclosures.
McDonald’s
Motion
Disclosures
is
to
denied
Strike
because
Plaintiffs’
the
Fourth
Accordingly,
Rule
26(a)(2)
Circuit’s
Rule
37
balancing test weighs in favor of a finding that the failed
disclosure is harmless.
III. CONCLUSION
For
Motion
the
to
foregoing
Strike
Ace
reasons,
this
American’s
Court
Rule
denies
26(a)(2)
McDonald’s
Disclosures.
Further, pursuant to Rule 26(e), this Court orders Ace American
to
timely
file
an
appropriate
supplemental
Rule
26(a)(2)(C)
disclosure consistent with the Rule within seven days of this
order.
McDonald’s shall file a motion for extension of time, if
necessary, in order to file its Rule 26 disclosures within seven
days of receipt of the supplement by Plaintiff Ace American.
Accordingly, it is hereby
ORDERED that Defendant’s Motion to Strike Plaintiff’s Rule
26(a)(2) Disclosures is DENIED.
Entered this 28th day of June, 2012
_____/s/______________
George L. Russell, III
United States District Judge
14
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