Roberson v. McDonald Transit Associates, Inc.

Filing 66

ORDER. Signed by Magistrate Judge Roy Percy on 9/20/17. (bnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
CARROL D. ROBERSON

v.

PLAINTIFF

CIVIL ACTION NO. 3:16CV162-MPM-RP

MCDONALD TRANSIT ASSOCIATES, INC., et al.

DEFENDANTS

ORDER LIMITING TESTIMONY OF PLAINTIFF’S WITNESSES
Defendants have objected to any witness that plaintiff will attempt to call as an expert
witness at trial asserting that plaintiff has failed to properly designate any expert witnesses.
Docket 64. Defendants raised their objection to doctors Michael Muhlbauer, James Walker and
Thomas L. Windham at the final pretrial conference. The undersigned directed the parties to file
information supporting their respective positions. The parties have done so, and the court is
prepared to rule.
Defendant’s are concerned with the labeling of these three treating physicians as experts
because plaintiff failed to comply with the rules for the disclosure of witnesses and the
designation of experts in accordance with Federal Rule of Civil Procedure 26 and Local Uniform
Civil Rule 26. In his response (Docket 65), plaintiff concedes that Drs. Walker and Windham
are fact witnesses, but provides the Initial Disclosure that identified Dr. Muhlbauer as a witness
and the nature of his proposed testimony.
FED. R. CIV. P. 26(a)(1)(A) dictates that:
a party must, without awaiting a discovery request, provide to the other parties:
(i) the name, and if known, the address and telephone number of each
individual likely to have discoverable information – along with the
subjects of that information – that the disclosing party may use to support
its claims or defenses . . .;

(ii) a copy – or a description by category and location – of all documents,
electronically stored information, and tangible things that the disclosing
party has in its possession, custody, or control and may use to support is
claims or defenses . . . .
These disclosures must be made within 14 days after the parties’ Rule 26(f) conference pursuant
to FED.R.CIV.P. 26(a)(1)(C) and the party must supplement its disclosure “in a timely manner if
the party learns that in some material respect the disclosure or response is incomplete or
incorrect . . .” as required by FED.R.CIV.P. 26(e). “If a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party 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). The purpose of these
disclosure requirements is to “eliminate unfair surprise to the opposing party.” Hill v. Koppers
Indus., 2009 U.S. Dist. LEXIS 98798, at *38 (N.D.Miss. Sept. 30, 2009); citing Muldrow ex rel.
Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 167 (D.C. Cir. 2007).
In addition to initial disclosures, FED. R. CIV. P. 26(a)(2) requires a party to disclose the
identity of any expert witness it may use at trial and provide a written, signed report. Local
Uniform Civil Rule 26(a)(2) requires that
[a] party must make full and complete [expert] disclosure as required by
Fed.R.Civ.P. 26(a)(2) and L.U.CIV.R. 26(a)(2)(D) no alter than the time specified
in the case management order. Absent a finding of just cause, failure to make full
expert disclosures by the expert designation deadline is grounds for prohibiting
introduction of that evidence at trial. . . .
(D) A party must designate physicians and other witnesses who are not
retained or specially employed to provide expert testimony but who are expected
to be called to offer expert opinions at trial. No written report is required from
such witnesses, but the party must disclose the subject matter on which the
witness is expected to present evidence under FED.R.EVID. 207, 203 or 205, and a
summary of the facts and opinions to which the witness is expected to testify.
The party must also supplement initial disclosures.

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A treating physician not designated as an expert, but properly identified as a witness, may
testify as a treating physician, but his/her testimony is limited to those facts and opinions
contained in the plaintiff’s medical records. Doss v. NPC Int’l, 2010 U.S. Dist. LEXIS 85583
(N.D.Miss. July 20, 2010)(limiting testimony of treating physician because designation of
physician as expert failed to comply with requirements of L.U.CIV.R. 26); citing Duke v. Lowe’s
Home Centers, 2007 U.S. Dist. LEXIS 80415 (N.D. Miss. Oct. 19, 2007)(“concluding that
without expert report, treating physician’s testimony was ‘limited to those facts and opinions
contained in [the] medical records’”).
In the instant case, defendants do not dispute that they were aware of the treatment
received by plaintiff from the three physicians at issue: Dr. Michael Muhlbauer, Dr. James
Walker and Dr. Thomas L. Windham. During the pendency of this litigation or prior related
litigation, in which plaintiff complained of – among other things – the injury that is the subject of
this litigation, plaintiff has produced to defendant his treatment records from these three
physicians. Because plaintiff intends to call Drs. Walker and Windham only as fact witnesses
and they have properly been identified as witnesses with knowledge of plaintiff’s physical
condition, the issue of their testimony is moot.
The undersigned has reviewed the plaintiff’s Initial Disclosure containing the designation
of Dr. Muhlbauer and concludes that it sufficiently put defendants on notice that plaintiff
intended to call him as an expert witness. This Initial Disclosure was made by the plaintiff to
counsel for the defendants in the prior related case of Carrol D. Roberson v. McDonald Transit
Associates, Inc., et al., Cause No. 3:14-cv-168, in which the plaintiff complained of – among
other things – the injury that is the subject of this litigation. Defendants cannot claim any unfair

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surprise as plaintiff indicated that Dr. Muhlbauer would “give testimony on the history of
Roberson’s spinal and lumbar problems, spinal blocks, and two recent surgeries. Also, Dr.
Muhlbauer will elaborate on the fragile condition of Roberson’s spinal and lumbar region and
probability that certain injuries created a medical condition necessitating surgery.” Docket 65,
Exhibit 1, p. 6. Given that plaintiff is pro se and is given more leniency than a represented party,
defendants’ objection to plaintiff’s designation of Dr. Muhlbauer as an expert witness is
OVERRULED. Dr. Muhlbauer will remain on the Final Pretrial Order as an expert witness, and
defendants objection will be stricken. The designations of Drs. Walker and Windham will be
changed to fact witnesses.
SO ORDERED, this the 20th day of September, 2017.

/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE

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