Wiseman v. Wal-Mart Stores, Inc. et al

Filing 35

MEMORANDUM OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 7/5/2017. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ELIZABETH WISEMAN

*
*
*
*
*
*
*
*
*
*

Plaintiff,
v.
WALMART STORES, INC., et al.
Defendants.
*

*

*

*

*

*

*

Civil Case No. 1:16-cv-04030-SAG

*

*

*

*

*

*

MEMORANDUM OPINION
Defendant Walmart Stores, Inc. (“Walmart”) has filed a Motion in Limine seeking to
exclude from evidence Plaintiff Elizabeth Wiseman’s (“Plaintiff’s”) proffered expert opinion
testimony and related medical information. [ECF No. 25]. Plaintiff filed an Opposition and
Motion for Leave to File Expert Witness Disclosure, [ECF No. 26], and Walmart filed a Reply
thereto, [ECF No. 28].

Walmart has also moved for sanctions against Plaintiff, including

attorneys’ fees, and Plaintiff has opposed the motion. [ECF Nos. 28, 31]. For the reasons set
forth below, Walmart’s Motion in Limine is DENIED in part and deferred in part; Plaintiff’s
Motion for Leave to File Expert Witness Disclosure is GRANTED in part and deferred in part;
and Walmart’s request for sanctions is DENIED.
I.

BACKGROUND
On June 28, 2014, Plaintiff slipped and fell while walking down the detergent aisle of

Walmart Store #2290 in Owings Mills, Maryland. See Pl.’s Compl., [ECF No. 2]. Plaintiff
alleges that the fall caused her significant and serious injury. Id. Plaintiff filed a complaint
against Walmart in state court in November, 2016, and Walmart removed the matter to this court
soon after. See [ECF No. 1]. Pursuant to a scheduling order, Rule 26(a)(2) disclosures were due
1

on February 27, 2017 and March 27, 2017 for Plaintiff and Walmart, respectively. [ECF No.
11]. On March 10, 2017, Plaintiff responded to Walmart’s discovery requests, and produced, in
relevant part, two hundred and thirty-four pages of bills and records relating to Plaintiff’s
medical treatment.

Pl.’s Opp., [ECF No. 26-6, 3].

On March 27, 2017, Walmart timely

submitted its Rule 26(a)(2) disclosures. [ECF No. 26-11]. Plaintiff, however, failed to submit
any expert disclosures until April 27, 2017, two weeks before the discovery deadline, at which
time she identified 13 treating physicians as “hybrid fact/expert witnesses[.]” [ECF No. 26-14].
In contemporaneous correspondence, Plaintiff’s counsel informed opposing counsel that Plaintiff
“only intend[s] to call Dr. Chad Zooker at trial, but [has] noted the other providers to the extent
[the parties] are unable to agree to the authenticity and inadmissibility [(sic)] of … Plaintiff’s
medical bills and records.” [ECF No. 26-13]. The instant motion followed. [ECF No. 25].
II.

THE LEGAL STANDARD
Federal Rule of Civil Procedure 26(a)(2)(A) requires a party to “disclose to other parties

the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence
702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). In addition, Rule 26(a)(2)(B) requires parties 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.” Fed. R. Civ. P. 26(a)(2)(B). See Sullivan v. Glock, Inc., 175 F.R.D. 497, 500 (D.
Md. 1997). A report is complete, and compliant with Rule 26(a)(2), if it is sufficiently detailed
such that “surprise is eliminated, unnecessary depositions are avoided and costs are reduced.”
Id. at 503 (citations and internal quotation marks omitted). However, as set out in Sullivan,
treating physicians are generally considered to be hybrid fact/expert witnesses and
[t]o the extent that the source of the facts which form the basis for a treating
physician’s opinions derive from information learned during the actual treatment
2

of the patient – as opposed to being subsequently supplied by an attorney
involved in litigating a case involving the condition or injury – then no Rule
26(a)(2)(B) statement should be required.
Id. at 501 (emphasis added). For witnesses for whom no written report is required, a party must
disclose “(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.” Fed. R. Civ. P. 26(a)(2)(C). See Loc. R. 104.10 (D. MD.
2016). Additionally, Federal Rule of Civil Procedure 26(e) requires that a party who has made a
Rule 26(a) disclosure supplement that disclosure or response if “the party learns that in some
material respect the disclosure or response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other parties during the
discovery process[.]” Fed. R. Civ. P. 26(e)(1)(A).
“[A] party [that] fails to provide information or identify a witness as required by Rule
26(a) or (e), … is not allowed to use 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.” Fed. R.
Civ. P. 37(c)(1). Rule 37(c) is self-executing and automatic. See Fed. R. Civ. P. 37(c) advisory
committee note (1993). Rule 37(c)(1) also allows the court to “order payment of reasonable
expenses, including attorney’s fees, caused by the failure.” Id.
In Southern States Rack and Fixture, Inc. v. Sherwin-Williams Co., the Fourth Circuit
articulated five factors that lower courts should consider in determining whether a Rule 37(c)(1)
violation was harmless or substantially justified:
(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 evidence.

3

318 F.3d 592, 596-97 (4th Cir. 2003). The non-disclosing party bears the burden of establishing
that its Rule 26(a)(2) violation does not warrant preclusion. Id. at 597. Trial courts are conferred
“broad discretion” in determining whether a party’s noncompliance with Rule 26(a)(2) was
substantially justified or harmless. Id. at 596. District courts need not expressly consider each
Southern States factor when evaluating discovery violations. 1 See Hoyle v. Freitliner LLC, 650
F.3d 321, 330 (4th Cir. 2011).
III.

DISCUSSION

A. Expert Disclosure of Plaintiff’s Treating Physicians
As a threshold matter, Plaintiff’s Rule 26(a)(2) disclosure, which identifies 13 treating
physicians as hybrid fact/expert witnesses and provides a summary of the subject matter, facts,
and opinions about which the witnesses are expected to testify, satisfies the requirements of
Federal Rule of Civil Procedure 26(a)(2)(C). See [ECF No. 26-14]; Fed. R. Civ. P. 26(a)(2)(C);
Loc. R. 104.10 (D. MD. 2016). Despite suggestions by Walmart to the contrary, Plaintiff is not
required to produce a curriculum vitae or resume for these hybrid witnesses as part of Rule
26(a)(2)(C) disclosures. See Def.’s Mot., [ECF No. 25-1, 4]; Sullivan, 175 F.R.D. at 501. Of
course, if requested in discovery, such documents should be produced.
Walmart correctly asserts that Plaintiff’s expert disclosures were untimely, as they were
submitted 59 days beyond the court-set deadline. Def.’s Mot., [ECF No. 25-1, 2]. See Fed. R.
Civ. P. 26(a)(2)(A). Accordingly, this Court must determine the appropriate sanction. Walmart
contends that the penalty for Plaintiff’s improper expert disclosure lies in the “automatic
exclusion” provision of Rule 37(c)(1). Def.’s Mot., [ECF No. 25, 3]. Walmart argues that the

1

 While both parties based their arguments on the four factors set forth in Sullivan v. Glock, this court will assess this
matter under the test set forth in Southern States. The Fourth Circuit has specified that “a district court should be
guided” by the five factors. Southern States Rack and Fixture, Inc., 318 F.3d at 597 (emphasis added). However, the
factors analyzed under both tests are similar enough that applying the Southern States test instead of the Sullivan test
does not materially impact the arguments set forth by either party. 

4

tardy disclosure was neither harmless nor substantially justified. Specifically, Walmart contends
that Plaintiff’s excuse that the late disclosure was an “inadvertent mistake” is not substantial
justification. Def.’s Reply, [ECF No. 28, 6-7].

Walmart further argues that the untimely

disclosure deprives them of the opportunity to depose Plaintiff’s designated experts and to
engage in expert rebuttal discovery before the discovery deadline. Def.’s Mot., [ECF No. 25-1,
3-4]. Plaintiff, on the other hand, admits that her Rule 26(a)(2) disclosure is untimely, but insists
that the failure was neither willful nor in bad faith. Pl.’s Opp., [ECF No. 26, 9]. In addition,
Plaintiff argues that the error is harmless because Plaintiff’s witnesses are treating physicians, so
their information was available to Walmart prior to disclosure; the amount of prejudice to
Walmart is minimal, especially compared to the damage Plaintiff’s case would suffer if her
designated experts are excluded; and a continuance of the discovery deadline can cure the effects
of the prejudice caused by Plaintiff’s failure to disclose. Pl.’s Opp., [ECF No. 26, 9-11].
Plaintiff’s untimely disclosure was not substantially justified, and Plaintiff admits as
much. See Pl.’s Opp., [ECF No. 26, 9]. Consequently, the real inquiry is whether the error was
harmless. Walmart’s ability to cure the surprise of the late disclosure is somewhat limited now
that discovery is closed, with a trial date set for September 18, 2017. See [ECF No. 20].
Additionally, due to Plaintiff’s late submission, Walmart had to name its defense experts without
review of Plaintiff’s expert disclosures. See Def.’s Mot., [ECF No. 25-1, 3-4]. Plaintiff claims
that Walmart had access to information pertaining to Plaintiff’s witnesses because all witnesses
were treating physicians who were included in Plaintiff’s medical records and bills. See Pl.’s
Opp., [ECF No. 26, 9]. However, since Plaintiff did not send the medical records and bills until
March 10, 2017, ten days after her Rule 26(a)(2) disclosure deadline, see Pl.’s Opp., [ECF No.

5

26, 3], production of the records did not fully eliminate the harm caused by the late disclosure.
Additionally, Plaintiff’s explanation for the delay is not compelling.
Nevertheless, considering the importance of the evidence, a complete exclusion of
Plaintiff’s expert witness testimony would severely harm Plaintiff’s case and is excessive, given
that Plaintiff’s error can largely be cured without such drastic measures. See The Mayor and
City Council of Baltimore v. Unisys Corporation, No. 12-cv-614, 2013 WL 4784118, at *5 (D.
Md. Sept. 5, 2013). Given the broad discretion district courts have in weighing the Southern
States factors, the most appropriate resolution in this case is to render the untimely Rule 26(a)(2)
disclosure harmless by (1) allowing discovery from Dr. Zooker and (2) considering, on a fact
specific basis, whether exclusion of the other treating physicians’ testimony is warranted. Prior
to Walmart’s Motion in Limine, Plaintiff offered to accommodate whatever Walmart required
“in order to ensure the Defendants were not prejudiced by failure to timely file the Expert
Witness Disclosure.” Pl.’s Opp., [ECF No. 26, 9]. Walmart then requested that this Court grant
“90 days of additional time to depose Dr. Zooker as well as an additional 60 days thereafter to
designate any additional rebuttal expert witnesses.” Def.’s Reply, [ECF No. 28, 4]. That
proposal is reasonable.

Accordingly, Plaintiff’s error is rendered harmless by extending

discovery as Walmart requests for the purpose of allowing Dr. Zooker’s deposition and
designation of rebuttal witnesses, and considering, as set forth below, whether Plaintiff’s other
hybrid expert witnesses should be excluded. A conference call will be held to set a new trial
schedule to accommodate the additional expert discovery, which will not be completed by the
September trial date.2

2

Walmart has filed a motion for summary judgment on liability, [ECF No. 32], which is not yet ripe. The
conference call will be scheduled after resolution of that motion, if the motion is denied.

6

B. Experts Called for Purpose of Admitting Medical Records and Bills
Plaintiff seeks to call the other twelve treating physicians solely to admit medical records
and bills. Walmart generally challenges the admissibility and relevance of those documents, if
offered without expert testimony. Def.’s Mot., [ECF No. 25-1, 4]. In particular, Walmart
contends that:
[w]ithout any experts to introduce and explain the medical records and bills,
Plaintiff is unable to meet her burden to show how the medical records and bills
are causally related to the alleged negligence, and is unable to prove whether the
medical bills are fair and reasonable to the treatment of the injuries.
Id. at 4-5.
The hearsay issues inherent in medical records and bills may be addressed by Federal
Rule of Evidence 803(6), which states that: “[t]he following [is] not excluded by the rule against
hearsay, regardless of whether the declarant is available as a witness: … A record of an act,
event, condition, opinion, or diagnosis[.]” Fed. R. Evid. 803(6). Assuming Plaintiff satisfies the
criteria set out in Rule 803(6)(A)-(E), medical records “‘kept by hospitals and doctors often fit
the [Rule 803(6)] exception and are routinely admitted.’ The rule’s reference to ‘opinions’ and
‘diagnoses’ suggests this result.” Doali-Miller v. Supervalu, Inc., 855 F. Supp. 2d 510, 517 (D.
Md. 2012). As for medical bills, “documents prepared in the ordinary course of business are
generally presumed to be reliable and trustworthy . . .” Id. at 516 (quoting Certain Underwriters
at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 204-05 (4th Cir. 2000)). As such, Plaintiff’s
medical bills and records properly disclosed before the discovery deadline are not excluded as
hearsay, if the relevant provisions of Rule 803(6) are met.
Other factors also govern to the admissibility of the records and bills, however, since
evidence is only admissible if relevant. See Fed. R. Evid. 401 (defining evidence as relevant if it
has “any tendency” to make a fact of consequence to the issues in question “more or less
7

probable than it would be without the evidence.”). Maryland law requires expert testimony to
establish causation between the alleged negligence and the injuries reflected in medical records,
as well the reasonableness and fairness of the medical bills as evidence of damages, “when a
personal injury claim involves a ‘complicated medical question’ that ‘falls within the province of
medical experts[.]’” Galloway v. Horne Concrete Const., 524 Fed. App’x. 865, 870 (4th Cir.
2013) (citing Wilhelm v. State Traffic Safety Comm’n, 230 Md. 91, 185 A.2d 715, 719 (1962)).
Whether a case involves a “complicated medical question” is a fact-intensive inquiry, and “the
seminal case of Wilhelm” sets out three categories of cases where expert testimony is
unnecessary.

Id. at 870-871. In applying Wilhelm, Maryland courts consider, among other

circumstances, the nature and severity of Plaintiff’s alleged injury; Plaintiff’s past relevant
medical history, if any; and the timing, nature, and necessity of medical treatment sought after
the injury. See, e.g., Shpigel v. White, 357 Md. 117, 741 A.2d 1205 (1999); Desua v. Yokim, 137
Md. App. 138, 768 A.2d 56 (Md. Ct. Spec. App. 2001). Thus, to evaluate whether expert
testimony is required as to a particular medical record or bill, and whether exclusion is warranted
based on surprise and the importance of the evidence, this court requires more fact-specific
information that has not been provided by either party. On or before July 26, 2017, Walmart
should file a supplement identifying which of Plaintiff’s medical records and bills it intends to
challenge on grounds of causation and/or reasonableness. Plaintiff will have two weeks to
respond, addressing (1) whether expert testimony would be required to establish the admissibility
of each challenged record or bill and (2) if so, why exclusion of the expert for untimely
designation is inappropriate. Walmart will have one week from Plaintiff’s submission to reply.
IV.

CONCLUSION

8

For the reasons set forth above, Walmart’s Motion in Limine to exclude Plaintiff’s expert
opinion testimony, [ECF No. 25], is DENIED in part as to Dr. Zooker’s testimony, and deferred
as to testimony from Plaintiff’s twelve other proposed expert witnesses. Conversely, Plaintiff’s
Motion for Leave to File Expert Witness Disclosure, [ECF No. 26], is GRANTED in part as to
Dr. Zooker and deferred as to the other twelve treating physicians. The schedule will be
modified to permit Walmart 90 days from the date of this order to depose Dr. Zooker, and 60
days thereafter to designate any additional rebuttal witnesses, and the parties will file additional
submissions according to the schedule set forth herein. A new trial date will be scheduled, and
the September 18, 2017 trial date will be removed from the calendar. Pursuant to Federal Rule
of Civil Procedure 37(a)(5)(C), no fees or expenses will be awarded to Walmart because relief is
being denied in part.
A separate order is filed herewith.

Dated: July 5, 2017

9

/s/
Stephanie A. Gallagher
United States Magistrate Judge