Dill v. Vaccaro & Sons Produce Inc et al

Filing 33

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff Ed Thomas Dill, Jr.'s Motion to Reconsider Order Barring Causation Opinion by Treating Physician and Memorandum of Law in Support (Doc. 30 ) is DENIED. Signed by Magistrate Judge Noelle C. Collins on 11/18/2020. (TMT)

Case: 4:19-cv-01206-NCC Doc. #: 33 Filed: 11/18/20 Page: 1 of 4 PageID #: 137

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ED THOMAS DILL, JR.,
Plaintiff,
v.
VACCARO & SONS PRODUCE, INC.,
and JEREMY P. KLOBE,
Defendants.

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Case No. 4:19-CV-01206-NCC

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Ed Thomas Dill, Jr.’s Motion to Reconsider
Order Barring Causation Opinion by Treating Physician and Memorandum of Law in Support
(Doc. 30). The motion is fully briefed and ready for disposition. The parties have consented to
the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C.
§ 636(c) (Doc. 10). For the following reasons, Plaintiff’s Motion will be DENIED.
On June 2, 2020, the Court entered an Order barring the testimony of Dr. Matthew
Gornet (“Dr. Gornet”), Plaintiff’s physician, as to causation but permitting his testimony as to
facts identified during his treatment of Plaintiff. In doing so, the Court found that Plaintiff had
failed to properly disclose Dr. Gornet or provide a report required by Federal Rule of Civil
Procedure 26(a)(2)(C) and the Undersigned’s Judicial Requirements. The Court also amended
the case management order in this matter to afford the parties an opportunity to properly depose
Dr. Gornet and to allow Defendants an opportunity to move forward with their expert discovery
in light of the late disclosure of Dr. Gornet. Plaintiff now seeks reconsideration of the Court’s
Order, asserting (1) the Court erroneously concluded Dr. Gornet is a medical expert rather than a

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treating physician; and (2) the Court erroneously assumed Dr. Gornet did not render a causation
opinion in his record of treatment (Doc. 30 at 4).
As a preliminary matter, the Court finds that Federal Rule of Civil Procedure 60(b)
applies in this instance, as the motion is not directed at a final judgment. See Broadway v.
Norris, 193 F.3d 987, 989 (8th Cir. 1999). See also Elder–Keep v. Aksamit, 460 F.3d 979, 984
(8th Cir. 2006) (internal quotation marks omitted) (“[W]e have determined that motions for
reconsideration are nothing more than Rule 60(b) motions when directed at non-final orders.”).
Federal Rule of Civil Procedure 60(b) permits relief from an order due to, as relevant here,
mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence; fraud,
misrepresentation, or misconduct by an opposing party; or any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Relief under “Rule 60(b) is an ‘extraordinary remedy’ that is justified only
under ‘exceptional circumstances.’” Prudential Ins. Co. of Am. v. Natl. Park Med. Ctr., Inc., 413
F.3d 897, 903 (8th Cir. 2005) (quoting Watkins v. Lundell, 169 F.3d 540, 544 (8th Cir. 1999)).
Further, “[r]elief is available under Rule 60(b)(6) only where exceptional circumstances have
denied the moving party a full and fair opportunity to litigate his claim and have prevented the
moving party from receiving adequate redress.” Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir.
2005). The Rule 60(b)(6) catch-all provision is not a vehicle for setting forth arguments that
were made or could have been made earlier in the proceedings. See Broadway, 193 F.3d at 98990. District courts enjoy broad discretion in ruling on motions to reconsider. See Concordia
College Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir. 1993).
The Court finds no reason raised to reconsider and vacate its prior order. Contrary to
Plaintiff’s assertion, the Court previously evaluated Dr. Gornet as a treating physician. In this
Circuit and under the Federal Rules of Civil Procedure, a treating physician testifying as to
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causation, even if causation is indicated in his record of treatment, is treated as a non-retained
expert and must be disclosed with an accompanying report. Vanderberg v. Petco Animal
Supplies Stores, Inc., 906 F.3d 698, 702 (8th Cir. 2018). See also Bayes v. Biomet, Inc., No.
4:13-CV-00800-SRC, 2020 WL 5848068, at *1 (E.D. Mo. Oct. 1, 2020). The report in such
cases is not as extensive as those for retained experts but the report must include “the subject
matter on which the witness is expected to present” expert opinion testimony, in this case the
causation of Plaintiff’s injuries, and “a summary of the facts and opinions to which the witness is
expected to testify.” Fed. R. Civ. P. 26(a)(2)(c). As this area of the rules is particularly
convoluted, the Undersigned has provided guidance in her Judicial Requirements clarifying that
statements as to causation would require a report under the Rules. See https://www.moed.
uscourts.gov/sites/moed/files/judges/requirements/ncc.pdf. In this instance, Plaintiff did not
disclose Dr. Gornet in any manner until March 19, 2020, several months after the expert
disclosure deadline had passed. While Plaintiff has now seen Dr. Gornet on several occasions
and has formed a treatment relationship with him, this relationship does not alter the Court’s
analysis. When a party fails to comply with the disclosure requirements of Federal Rule of Civil
Procedure 26(a), the party may not use that information to supply evidence on a motion, at a
hearing, or at a trial. Fed. R. Civ. P. 37(c). As such, Dr. Gornet may not testify as to causation
but, as Plaintiff’s physician, may testify to the facts obtained through his treatment of Plaintiff.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff Ed Thomas Dill, Jr.’s Motion to Reconsider
Order Barring Causation Opinion by Treating Physician and Memorandum of Law in Support
(Doc. 30) is DENIED.

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Dated this 18th day of November, 2020.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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