Alfaro et al v. D. Las Vegas, Inc. et al

Filing 38

ORDER - 1. Defendants' Motion to Strike Torrez's Future Damages Calculation (ECF No. 23 ) and Motion to Preclude Plaintiffs from Offering Expert Testimony (ECF Nos. 24 ) are GRANTED. 2. Counter-Defendant's Motion to Preclud e Plaintiffs from Offering Expert Testimony (ECF Nos. 26 ) and Motion to Strike Report of Dr. Enrico Fazzini (ECF No. 27 ) are GRANTED. Signed by Magistrate Judge Peggy A. Leen on 8/24/2016. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7
8
9
10

SAMANTHA ALFARO and GREGORY
JOHN TORREZ,
Plaintiffs,

15
16

(Mot Strike – ECF No. 23)
(Mot Preclude – ECF No. 24)
(Mot. Preclude – ECF No. 26)
(Mot. Strike Report – ECF No. 27)

D. LAS VEGAS, INC., et al.,
Defendants.
D. LAS VEGAS, INC., et al.,

13
14

ORDER

v.

11
12

Case No. 2:15-cv-02190-MMD-PAL

Counter-Claimants,
v.
GREGORY JOHN TORREZ,
Counter-Defendant.

17

This matter is before the court on Defendants D. Las Vegas Inc. and Edgar Vinicio

18

Vallejo’s Motion to Strike Torrez’s Future Damages Calculation (ECF No. 23) and Motion to

19

Preclude Plaintiffs from Offering Expert Testimony (ECF No. 24), and Counter-Defendant

20

Gregory John Torrez’s Motion to Preclude Samantha Alfaro from Offering Expert Testimony

21

(ECF No. 26) and Motion to Strike Report of Dr. Enrico Fazzini (ECF No. 27). These Motions

22

are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local

23

Rules of Practice. On July 19, 2016, the court held a hearing on the Motions. Present were

24

counsel for Plaintiffs, Anthony Sharp and Kristopher Helmick; counsel for Defendants D. Las

25

Vegas, Inc. and Edgar Vinicio Vallejo, Meredith Holmes; and counsel for Counter-Defendant

26

Torrez, Colin Cavanaugh. The court has considered the Motions, Plaintiffs’ Responses (ECF

27

Nos. 31, 32), the Replies (ECF Nos. 33, 34, 35), and the arguments of counsel at the hearing.

28
1

BACKGROUND

1
2

I.

The Complaint and Procedural History

3

The complaint in this case was filed in state court and removed on November 18, 2015.

4

See Petition for Removal (ECF No. 1). This is a personal injury action arising out of an

5

automobile accident on December 18, 2014, on Las Vegas Boulevard. Gregory Torrez was

6

driving, and Samantha Alfaro was in the front passenger seat. Torrez drove southbound on Las

7

Vegas Boulevard entering the right turn lane to turn onto Harmon Avenue. Torrez pulled

8

alongside a D. Las Vegas “party bus” also traveling southbound on Las Vegas Boulevard. The

9

complaint alleges the driver of the party bus attempted to merge into the right turn lane and

10

collided with the driver’s side of Torrez’s vehicle. Alfaro and Torrez filed suit against the driver

11

of the party bus, Edgar Vinicio Vallejo, and his employer, D. Las Vegas, Inc., asserting claims

12

for negligence and negligent entrustment for personal injuries sustained in the collision.

13

Defendants filed an answer and counterclaim against Torrez for indemnity and contribution,

14

which made Torrez both a Plaintiff and Counter-Defendant in this action.

15

The parties submitted a proposed Discovery Plan and Scheduling Order (ECF No. 14) on

16

January 25, 2016, which requested special scheduling review, and 235 days to complete

17

discovery rather than the 180 days deemed presumptively reasonable under LR 26-1(e). Special

18

scheduling review was requested because the parties did not believe that all discovery could be

19

accomplished within the time periods provided by LR 26-1(e) “due to the fact that a

20

counterclaim was filed in this action and the answer to the counterclaim was not filed until

21

January 6, 2016.” The court set the matter for hearing and questioned counsel about their request

22

for special scheduling review. See Mins. of Proceedings (ECF No. 17). After hearing from

23

counsel, the court indicated the proposed stipulated discovery plan and scheduling order would

24

be approved, but that no further extensions would be considered absent a strong showing of good

25

cause and due diligence. Id. The court entered the Discovery Plan and Scheduling Order (ECF

26

No. 16), which established a July 10, 2016 discovery cutoff, and May 11, 2016, deadline for

27

serving expert reports.

28
2

1

On April 29, 2016, the parties filed a Stipulation and Proposed Order (ECF No. 18) to

2

extend the discovery deadlines by 90 days. The stipulation indicated the additional time was

3

needed to allow Defendants to obtain the Las Vegas Metropolitan Police Department

4

(“LVMPD”) file concerning this accident. Defendants subpoenaed the LVMPD file on February

5

16, 2016, but were informed that because Torrez was arrested for DUI in connection with the

6

accident, LVMPD would not respond to the subpoena until the ongoing criminal investigation

7

was completed. Torrez testified at his deposition that he had entered a guilty plea and needed to

8

finish one more class to complete the requirements of his sentencing. In addition, the stipulation

9

indicated that Plaintiffs produced updated medical records from West Coast Orthopedic on

10

March 16, 2016, indicating that Torrez was continuing treatment and wished to discuss surgery

11

at his next visit. At his deposition, Torrez also testified that his physician had recommended

12

surgery. Defendants stated they needed the additional time to retain an expert to perform an

13

independent medical examination and opine on both causation and necessity of the surgery.

14

Plaintiffs did not claim they needed additional time for expert disclosures.

15

The court set the stipulation for hearing on May 12, 2016. Counsel for Plaintiffs did not

16

appear. See Mins. of Proceedings (ECF No. 21). The court questioned counsel regarding their

17

diligence in attempting to complete discovery within the extended time allowed under the

18

discovery plan and scheduling order. After the hearing, the court denied the parties’ stipulation

19

for a 90-day extension, but granted a 30-day extension of the fact discovery cutoff to obtain the

20

LVMPD records and records from the medical authorizations that were served on disclosed

21

providers. Id. However, the court indicated it would not approve an extension of the expert

22

disclosure deadlines. Id. During the hearing, counsel for Defendants advised the court that they

23

needed the additional 90 days because of Plaintiffs’ inadequate discovery disclosures. The court

24

directed counsel to take whatever action they deemed appropriate to address Plaintiff’s

25

incomplete or lacking disclosures. Id.

26

///

27

///

28

///
3

II.

1

The Parties’ Positions

2

A. Defendants D. Las Vegas and Vallejo 

3

Defendants D. Las Vegas and Vallejo’s motions ask the court to exclude Torrez’s future

4

damage calculation and to preclude Plaintiff from offering any expert testimony on various

5

grounds. First, although Torrez had timely disclosed past medical specials of $12,751.11, he

6

served a sixth supplemental disclosure after the expert disclosure deadline disclosing future

7

damages in the amount of $8,823,330 without providing any supporting documentation or expert

8

report. Second, Defendants seek to preclude both Plaintiffs from offering expert testimony based

9

on their failure to provide “the subject matter on which the witness is expected to present

10

evidence under Federal Rules of Evidence 702, 703 or 705; and a summary of the facts and

11

opinions to which the witness is expected to testify.” Acknowledging that treating physicians

12

may testify as both fact and expert witnesses, Defendants argue the Plaintiffs’ disclosures do not

13

comply with the requirements of Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure.1

14

With respect to Alfaro’s retained expert, Dr. Fazzini, Defendants argue Alfaro did not comply

15

with the report requirements of Rule 26(a)(2)(B). Additionally, Defendants maintain Dr. Fazzini

16

is not qualified to render an opinion concerning the causation of Alfaro’s self-reported increase

17

in seizures based on the accident. Defendants argue Plaintiffs’ non-compliance with their Rule

18

26(a) disclosure requirements is neither substantially justified nor harmless.

19

Alfaro’s lack of compliance is not harmless, these Defendants argue, because they are

20

prejudiced by the inadequate disclosures. Discovery has closed, the court has indicated it will

21

not be reopened, and Plaintiffs’ failure to comply with the expert disclosure requirements

22

undermines the Defendants’ right to meaningful cross-examination of these witnesses.

23

Additionally, without the disclosures required by Rule 26(a)(2), Defendants could not make an

24

informed decision about which, if any, of the witnesses to depose. Defendants therefore seek an

25

order striking Torrez’s future damages calculation, precluding Torrez from offering any evidence

26
27
28

1

Unless otherwise stated, all references to a “Rule” or “Rules” in this Order refer to the Federal Rules of
Civil Procedure.

4

1

of future damages at the time of trial, and an order that both Plaintiffs be precluded from offering

2

expert testimony at the time of trial from their treating physicians.

3

B. Counter-Defendant Torrez’s Motion

4

Torrez seeks to exclude the testimony of Alfaro’s non-retained treating physicians, and

5

the testimony of her retained expert, Dr. Fazzini, under Rule 37(c)(1) on various grounds. First,

6

Torrez seeks to preclude Alfaro from offering expert testimony of treating physicians and other

7

healthcare providers claiming they are hybrid retained experts for whom Rule 26(a)(2)(B) expert

8

reports are required. He also seeks to exclude testimony of Alfaro’s treating physicians for

9

failure to comply with Rule 26(a)(2)(C) asserting that Alfaro’s disclosures consist of a

10

boilerplate two-sentence description of the treating physicians’ anticipated testimony without the

11

required summary of facts and opinions. Finally, Torrez seeks to exclude Dr. Fazzini from

12

testifying as a retained expert on the ground his written report is unsigned and incomplete, and

13

his only opinion consists of a single ambiguous sentence. Additionally, Dr. Fazzini’s report pre-

14

dates months of subsequent treatment and contradictory evaluations by other providers.

15

C. Alfaro’s Response

16

Alfaro opposes the motions asserting she appropriately disclosed her treating physicians

17

to testify regarding their opinions formed during the course of treatment, and therefore written

18

reports are not required. She also claims that her disclosures of her treating physicians’ opinions

19

fully comply with Rule 26(a)(2)(C). Finally, Alfaro acknowledges that Dr. Enrico Fazzini is a

20

retained expert for whom a written report is required under Rule 26(a)(2)(B), but she argues that

21

her disclosures regarding Dr. Fazzini meet all of the elements required by the rule. Alfaro claims

22

that her expert disclosure for Dr. Fazzini contains his opinions, the basis and reasons for them,

23

the facts and data that were considered in forming them, his qualifications, a list of all

24

publications authored in the previous 10 years, as well as a list of Dr. Fazzini’s testimony for the

25

previous 4 years and a statement of his compensation in this case. In short, Alfaro argues that

26

there is no basis under Rule 26 for precluding Dr. Fazzini or any of Alfaro’s treating physicians

27

from testifying in this case.

28

///
5

1

D. Plaintiff Torrez’s Response

2

Torrez, in his capacity as a Plaintiff, also argues that both Plaintiffs timely disclosed

3

each of their treating physicians as expert witnesses and complied with all of the requirements of

4

Rule 26(a)(2)(C). He maintains there is no basis under Rule 26 for precluding any of Plaintiffs’

5

treating physicians from offering testimony regarding each provider’s evaluation of treatment of

6

each Plaintiff, including opinions regarding reasonable medical necessity of treatment, causation,

7

and reasonableness of charges. (As a Counter Defendant represented by another lawyer he takes

8

the polar opposite position.) With respect to the motion to strike his future damages calculation,

9

Torrez filed a notice of non-opposition acknowledging that the future damages calculation was

10

not timely disclosed. During oral argument, counsel for Torrez again acknowledged that the

11

future damage calculation was not timely disclosed and agreed that the report and future

12

damages calculation were inadmissible. However, he reserved the right to argue the jury should

13

award an amount of money for future damages for future pain and suffering without offering a

14

quantifiable or monetary amount for future medical expenses.
III.

15

Plaintiff’s Treating Physician Disclosures

16

On December 24, 2015, Alfaro and Torrez served an initial disclosure under Rule 26(a).

17

The initial disclosure is attached as Exhibit A (ECF No. 26-1) to the motion. In the initial

18

disclosure, Alfaro and Torrez identified a total of 11 healthcare providers.2 The initial disclosure

19

also identified “person(s) most knowledgeable and/or custodian of records and/or the treating

20

physician or other healthcare provider” by name. For each of these providers, the following

21

identical disclosure was provided:
The aforementioned medical care providers and/or their representatives are
expected to testify as treating physicians and as experts regarding the injuries
sustained; past, present and future medical treatment impairment; prognosis;
disability; pain and suffering; disfigurement; causation; and the reasonableness
and necessity of all care and billing as it relates to Plaintiff, as well as the
authenticity of their medical records and cost of the services rendered.
The aforementioned medical care providers will opine regarding future treatment,
including, but not limited to, spinal cord simulators, chiropractic care, physical

22
23
24
25
26
27
28

2

Seven healthcare providers were the same for both Alfaro and Torrez; however, Alfaro treated with
three additional providers and Torrez treated with one additional provider. See Mot. Ex. A (ECF No. 261); Mot. Ex. D (ECF No. 26-4).

6

1
2
3
4
5

therapy, rehabilitative care, fusion surgery and/or therapeutic and/or diagnostic
injections of the facets, nerve roots and/or medical branches. Said doctors will
also opine regarding other pain management procedures such as radiofrequency
ablations, occipital blocks and any other foreseeable medical treatment. Said
doctors will also opine regarding all treatment in this case as it pertains to
defending their opinions, to include any and all medical treatment as a result of
the incident at issue, and any and all medical treatment prior to the incident at
issue, and any and all depositions of other medical providers or defense experts,
and any and all defense medical reports prepared to attack said doctor’s opinions.

6

The disclosure “reserves the right” to call any and all treating physicians, psychiatrists,

7

healthcare providers to testify concerning “any and all aspects of the case, including the issues of

8

standard of care, causation and damages.” In addition, the initial disclosure indicated that the

9

custodian of records for all treating physicians and medical providers were expected to testify “as

10

to the medical treatment and resulting bills provided to the Plaintiff.” The “persons most

11

knowledgeable” for all of the medical facilities and treating physicians were “expected to testify

12

as expert witnesses about the injuries sustained by Plaintiff in the past, present and future

13

medical treatment, bills, injuries, past and future pain, suffering, disfigurement and disability as a

14

result of this incident.”

15

Plaintiffs served a supplemental Rule 26(a) initial disclosure on February 8, 2016. See

16

Mot. Ex. D (ECF No. 26-4).

17

providers as well as “persons most knowledgeable” and custodians of records for each of the

18

providers. For each of these providers the following identical supplemental disclosure was

19

provided:

20

The supplemental disclosure listed the same 11 healthcare

26

The persons most knowledgeable at [this provider] are expected to offer expert
testimony at the time of trial regarding this medical provider’s evaluation and
treatment of Plaintiff; and to offer expert testimony that the treatment rendered to
Plaintiff and/or future treatment recommended to Plaintiff by this medical
provider (such treatment including, but not limited to, evaluation, testing,
diagnosis, procedures, exercise and/or therapy regiments, follow up and/or
prescription medication) was and is reasonably medically necessary; and to offer
expert testimony that the reasonable medical necessity of such treatment was
caused by the incident(s) described in Plaintiff’s Complaint; and to offer expert
testimony that the costs for such past and future treatment rendered and/or
recommended by this provider are reasonable and customary for this geographical
area in which such treatment was rendered and/or such recommendations were
made.

27

The supplemental initial disclosure also indicated that each of the medical care providers

28

and/or their unidentified representatives were “expected to testify as treating physicians and as

21
22
23
24
25

7

1

experts regarding the injuries sustained; past, present and future medical treatment and

2

impairment; prognosis; disability; pain and suffering; disfigurement; causation; and the

3

reasonableness and necessity of all care and billing as it relates to Plaintiff, as well as the

4

authenticity of their medical records and the cost of their services rendered.” The supplemental

5

disclosure repeated the language about the subject matter on which the medical care providers

6

would opine contained in the initial disclosures served December 24, 2015. The supplemental

7

disclosure also included a computation of special damages for Alfaro indicating that total

8

medical expenses incurred to date were $32,313.41 from her 10 providers listed in the initial and

9

supplemental disclosures. The total medical expenses incurred to date for Torrez from his eight

10
11

providers listed was $11,091.11.
IV.

Alfaro’s Retained Expert Disclosure

12

On April 1, 2016, Plaintiffs served a designation of initial expert witnesses and

13

documents pursuant to Rule 26(a)(2) and LR 26-1(e)(3). See Mot. Ex. E (ECF No. 26-5). In it,

14

Plaintiffs identified Enrico Fazzini D.O. as a licensed and board certified neurologist expected to

15

testify concerning Alfaro’s injuries, the reasonableness and necessity of all medical treatment,

16

the necessity of costs of any past or future medical treatment, and any permanent medical

17

impairment of Alfaro. The expert designation also indicated that Dr. Fazzini was expected to

18

testify regarding the medical record review he prepared regarding Alfaro’s treatment. His fee

19

schedule, curriculum vitae, and list of expert witness testimony were attached to the expert

20

designation as Exhibit 1. Id. at 7. What Alfaro claims is a “medical record review” was attached

21

as Exhibit 2. Id. at 19.

22

The medical record review is dated March 27, 2015, and consists of a two-page report

23

outlining Dr. Fazzini’s examination of Alfaro the same date. The report indicates that Alfaro

24

was referred to him on March 27, 2015, for a neurological consultation following a motor

25

vehicle injury that occurred on December 18, 2014. It relates information that Alfaro reported to

26

Dr. Fazzini and describes the neurological examination he conducted as well as his impressions

27

and recommendations. The report concludes “[t]his patient remains moderately disabled as a

28

direct consequence of the injuries sustained in the motor vehicle accident of 12/18/14.”
8

DISCUSSION

1
2

I.

Legal Standards

3

These motions involve the recurring issue of when a treating physician is transformed

4

into an expert offering testimony on matters beyond the treatment rendered for purposes of the

5

expert disclosure requirements of Rule 26(a)(2)(B). It also involves the scope of opinions a

6

treating physician may offer in the absence of a Rule 26(a)(2)(B) compliant report. Finally, the

7

motion involves the adequacy of treating physician expert disclosures under Rule 26(a)(2)(B)

8

and (C).

9

A. Expert Report Requirements

10

Rule 26(a)(2) requires parties to “disclose to the other parties the identity of any witness

11

it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” The

12

Advisory Committee Notes to the 1993 amendments to Rule 26 indicate that the disclosure

13

requirements for expert testimony were intended to allow opposing parties to have a reasonable

14

opportunity to prepare for effective cross-examination and arrange for expert testimony from

15

other witnesses. See Fed. R. Civ. P. 26 Advisory Comm. Notes (1993). Amendments in 2010

16

made significant changes to Rule 26(a)(2) and (b)(4) to address concerns about expert discovery.

17

The Federal Rules of Civil Procedure establish two different classes of experts: (1) those

18

who are retained or specially employed to give expert opinion testimony in a case, and (2) those

19

who are not retained or specially employed but nevertheless may provide expert testimony under

20

Federal Rules of Evidence 702, 703, or 705. Specially retained experts are required to comply

21

with the Rule 26(a)(2)(B) report requirements.

22

testimony based on their “knowledge, skill, experience, training or education” under Federal

23

Rules of Evidence 702, 703, or 705 are required to comply with the expert disclosure

24

requirements of Rule 26(a)(2)(C).

25

Witnesses who qualify to provide expert

1. Retained Expert Report Requirements

26

Rule 26(a)(2)(B) requires written expert reports from witnesses “retained or specially

27

employed to provide expert testimony in the case.” For each disclosed expert, Rule 26(a)(2)(B)

28

requires that an expert witness disclosure be accompanied by a written report prepared and
9

1

signed by the witness containing: (1) a complete statement of all opinions and the basis and

2

reasons for them; (2) the facts or data considered by the witness in forming them; (3) any

3

exhibits that will be used to summarize or support them; (4) the qualifications of the witness,

4

including a list of all publications authored by the witness in the previous 10 years; (5) a list of

5

all other cases in which the witness testified as an expert at trial or by deposition within the

6

preceding 4 years; and (6) the compensation to be paid for the study and testimony. Fed. R. Civ.

7

P. 26(a)(2)(B). An expert’s report must be “detailed and complete.” Elgas v. Colorado Belle

8

Corp., 179 F.R.D. 296, 300 (D. Nev. 1998) (quoting Sierra Club v. Cedar Point Oil Co., Inc., 73

9

F.3d 546, 571 (5th Cir. 1996)). Expert reports are required in order to eliminate “unfair surprise

10

to the opposing party and [to conserve] resources.” Id. at 299 (quoting Reed v. Binder, 165

11

F.R.D. 424, 429 (D.N.J. 1996)).
2. Non-Retained Expert Report Requirements

12
13

Parties relying on expert opinions of non-retained experts must make the disclosures

14

required by Rule 26(a)(2)(C), which are considerably less extensive than the disclosure

15

requirements of Rule 26(a)(2)(B). Although a treating physician is often called as an expert

16

witness at trial, he or she is generally not retained or specially employed for this purpose, but

17

rather to treat a plaintiff for his or her medical complaints. In 2010, Rule 26 was amended to

18

create Rule 26(a)(2)(C) and resolve the tension that sometimes prompted courts to require

19

reports under 26(a)(2)(B) from witnesses exempted from the expert report requirement. The

20

Advisory Committee Notes regarding this amendment state, in relevant part:

21

24

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. This disclosure is
considerably less extensive than the report required by Rule 26(a)(2)(B). Courts
must take care against requiring undue detail, keeping in mind that these
witnesses have not been specially retained and may not be as responsive to
counsel as those who have.

25

…

26

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

22
23

27
28

10

1
2

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.

3

See Fed. R. Civ. P. 26 Advisory Comm. Notes (2010). The amended rule strikes a balance

4

between requiring an expert report from a witness, like a treating physician, who was not

5

specially retained to provide expert testimony and requiring an opposing party to search through

6

hundreds of pages of medical records in an attempt to guess at what expert testimony a treating

7

physician might provide.

8

B. Treating Physicians’ Testimony

9

The Federal Rules of Civil Procedure and Federal Rules of Evidence regarding treating

10

physician testimony have evolved over the years.

The 1993 Advisory Committee Notes

11

addressing Rule 26(a) observed that treating physicians are fact witnesses to the extent they

12

provide testimony arising out of their roles as actors in events giving rise to the litigation. Under

13

the 1993 amendments, to the extent treating physicians were fact witnesses, they were not

14

regarded as experts for whom expert reports were required under Rule 26(a)(2)(B). However, a

15

treating physician who did not supply an expert report was not permitted to go beyond

16

information learned or acquired, or opinions reached as a result of the treating relationship.

17

In Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011), the

18

Ninth Circuit addressed, for the first time, when, if ever, a treating physician is required to

19

prepare an expert report compliant with Rule 26(a)(2)(B). In Goodman, the plaintiff tripped and

20

fell in an Arizona office supply store and filed a complaint in state court alleging the store

21

negligently allowed an unreasonably dangerous condition to exist which resulted in her fall and

22

serious injuries. The case was removed to federal court based on complete diversity between the

23

parties. Under Arizona law, causation is an essential element of a negligence claim. The district

24

judge prohibited Goodman’s medical experts from testifying about causation in her case-in-chief

25

because she did not comply with her Rule 26(a)(2)(B) report disclosure obligations. On appeal,

26

the Ninth Circuit held that “when a treating physician morphs into a witness hired to render

27

expert opinions that go beyond the usual scope of a treating doctor’s testimony, the proponent of

28

the testimony must comply with Rule 26(a)(2).” Id. at 819–20. However, because the law
11

1

regarding “hybrid experts” was not settled, and because treating physicians are usually exempt

2

from the requirement of providing written reports, the Ninth Circuit exercised its discretion to

3

apply this clarification prospectively. Id.

4

The Goodman court recognized the general rule that a treating physician is a percipient

5

witness of the treatment rendered, rather than an expert retained or specially employed to provide

6

expert testimony. For this reason, a treating physician is ordinarily not subject to the written

7

report requirements of Rule 26(a)(2)(B). Id. at 824 (citing Fed. R. Civ. P. 26 Advisory Comm.

8

Notes (1993)). However, the Ninth Circuit noted that district courts in the circuit have limited

9

treating physician testimony to opinions formed during the course of treatment when the party

10

seeking admission of the testimony disclosed no expert report. Id. at 825.

11

Joining other circuits that had addressed the issue, the Ninth Circuit held that “a treating

12

physician is only exempt from Rule 26(a)(2)(B)’s written report requirement to the extent that

13

his opinions were formed during the course of treatment.” Id. at 826. The Goodman court found

14

that the plaintiff had retained a number of her treating physicians to render expert testimony

15

beyond the scope of the treatment rendered, and to form their opinions, those doctors reviewed

16

information provided by the plaintiff’s attorney, which the doctors had not reviewed during the

17

course of their treatment. For these reasons, the Ninth Circuit agreed with the district court that

18

these doctors fell outside the scope of the “treating physician” exception, and under Rule

19

26(a)(2)(B), written reports were required.

20

C. Scope of Treating Physician Opinion Testimony

21

Disputes often arise about what expert opinions a treating physician may offer without

22

providing a Rule 26(a)(2)(B) compliant report. The majority of these disputes involve whether a

23

treating physician may offer expert opinions on causation, disability, the need for future surgery

24

and treatment, and the cost of future care, treatment, and surgery. Before the 2010 amendments

25

to Rule 26(a)(2), the majority of courts in the country concluded that 26(a)(2)(B) reports were

26

not required for treating physicians expressing opinions as to causation, diagnosis, prognosis,

27

and the extent of disability as long as those opinions were based on the patient’s treatment. See,

28

e.g., Sprague v. Liberty Mut. Ins. Co., 177 F.R.D. 78, 81 (D.N.H. 1998) (collecting cases) (“The
12

1

majority of other courts in the country have concluded that Rule 26(a)(2)(B) reports are not

2

required as a prerequisite to a treating physician expressing opinions as to causation, diagnosis,

3

prognosis, and extent of disability where they are based on the treatment.”); Salas v United

4

States, 165 F.R.D. 31, 33 (W.D.N.Y. 1995) (“The relevant question is whether these treating

5

physicians acquire their opinions as to the cause of the plaintiff’s injuries directly through the

6

treatment of the plaintiff.”).

7

Two decisions in this district published years before the 2010 amendment held that

8

treating physicians are exempt from the Rule 26(a)(2)(B) report requirements even when offering

9

opinions on causation, diagnosis, prognosis, and the extent of disability.

In Piper v.

10

Harnischfeger Corp., 170 F.R.D. 173 (D. Nev. 1997), Magistrate Judge McQuaid rejected

11

arguments that a treating physician was limited to “factual percipient observations” and was

12

required to provide a Rule 26(a)(2)(B) report to give opinions on such matters as causation,

13

future treatment, the extent of disability, “and the like.” Id. at 174–75. The court found those

14

positions too narrow and Rule 26(a)(2)(B) was not that restrictive by reasoning:

15
16
17
18

It is common place for a treating physician during, and as a part of, the course of
treatment of a patient to consider things such as the cause of the medical
condition, the diagnosis, the prognosis, and the extent of disability caused by the
condition, if any. Opinions such as these are a part of the ordinary care of the
patient and do not subject the treating physician to the extensive reporting
requirements of Fed. R. Civ. P. 26(a)(2)(B).

19

Id. at 175. The Harnischfeger decision cited a number of other federal district court decisions

20

that had reached a similar conclusion. Id.

21

In Elgas v. Colorado Belle Corp., 179 F.R.D. 296 (D. Nev. 1998), Magistrate Judge

22

Johnston followed Harnischfeger holding that the expert report requirements of Rule 26(a)(2)(B)

23

only apply to experts who are retained or specially employed to provide expert testimony. Id. at

24

297. The plaintiff in Elgas designated a doctor who had not personally treated the plaintiff but

25

was the directing physician at the medical clinic plaintiff visited. The doctor was consulted by a

26

nurse practitioner who did treat the plaintiff and the doctor directed the nurse practitioner’s work.

27

The court held that the doctor had knowledge of the plaintiff’s medical condition through

28

consultation, and therefore qualified as a treating physician who was not subject to the Rule
13

1

26(a)(2)(B) requirements. However, the court held that the doctor “should not be allowed to

2

render a medical opinion based on factors that were not learned in the course of his limited

3

treatment of the Plaintiff at his clinic.” Id. at 300.

4

The Elgas court agreed with Harnischfeger that a treating physician’s opinion on matters

5

such as causation, future treatment, the extent of disability, and the like “are part of the ordinary

6

care of the patient” and, therefore, a treating physician may testify regarding these matters

7

without being subject to the extensive reporting requirements of Rule 26(a)(2)(B). Id. However,

8

Elgas also found that a party could not avoid the Rule 26(a)(2)(B) requirements “by simply

9

indicating that her expert is a treating physician.” Id. at 299. Quoting Hall v Sykes, 164 F.R.D.

10

46, 48–49 (E.D. Va. 1995), the court found that a Rule 26(a)(2)(B) report would be required

11

from a treating physician “retained or employed to render a medical opinion based on factors that

12

were not learned during the course of the treatment of the patient.” Id. at 298.

13

Goodman, Harnischfeger, and Elgas were decided before the 2010 amendments to Rule

14

26(a)(2), which now require 26(a)(2)(C) reports for experts, like treating medical providers, who

15

provide expert testimony under Federal Rules of Evidence 702, 703, or 705. In Goodman the

16

Ninth Circuit relied on the Sixth Circuit’s decision in Fielden v. CSX Transportation, Inc., 482

17

F.3d 866 (6th Cir. 2007). There, the Sixth Circuit held that “a report is not required when a

18

treating physician testifies within a permissive core on issues pertaining to treatment, based on

19

what he or she learned through actual treatment and from the Plaintiff’s records up to and

20

including that treatment.” Id. at 871. The Ninth Circuit concluded that Fielden “does not stand

21

for the proposition that a treating physician never has to disclose an expert report.” 644 F.3d at

22

825 (emphasis in original). In Fielden, the court found that evidence in the record showed the

23

physician had formed his causation opinion during the course of treatment, and there was no

24

evidence the doctor formed his causation opinion at the request of counsel. 482 F.3d at 871–72.

25

The Fielden decision distinguished medical provider testimony regarding causation that pertains

26

to the patient’s treatment from causation testimony prepared in anticipation of litigation.

27

The Ninth Circuit also relied on the Seventh Circuit’s decision in Meyers v. Nat’l R.R.

28

Passenger Co., 619 F.3d 729, 734–35 (7th Cir. 2010), which held that an expert report is
14

1

required when a treating physician is offered to provide testimony concerning the cause of the

2

plaintiff’s injury, but did not make that determination in the course of providing treatment.

3

Goodman noted that the Eighth Circuit “goes further, requiring disclosure of a written report

4

anytime a party seeks to have a treating physician testify as to causation of a medical condition,

5

as opposed to merely the existence of the condition.” 644 F.3d at 825 (citing Brooks v. Union

6

Pacific R.R. Co., 620 F.3d 896, 900 (8th Cir. 2010)) (emphasis in original). Goodman also cited

7

district court decisions within the circuit that “have limited treating physician testimony to

8

opinions formed during the course of treatment when the party seeking admission of the

9

testimony disclosed no expert report.” Id.

10

Since Goodman was decided, motions to exclude or strike treating physician or treating

11

provider opinions for failure to comply with Rule 26(a)(2) have proliferated. Arguments are

12

repeatedly advanced that a Rule 26(a)(2)(B) report is required any time a treating provider offers

13

expert opinion testimony. Here, Torrez’s motion argues that all of Plaintiffs’ treating physicians’

14

“medical legal” opinions should be excluded because Plaintiffs did not provide Rule 26(a)(2)(B)

15

compliant reports. Specifically, Torrez argues the court should exclude all treating physician

16

testimony regarding “opinions on the reasonableness and necessity of all care and billing, past

17

and future damages, and the opinions of other providers and defense experts.”

18

Goodman did not hold that a Rule 26(a)(2)(B) report is required any time a treating physician

19

offers expert opinions. Rather, Goodman found that the plaintiff had retained a number of her

20

treating physicians to render opinions outside the scope of her treatment, and they had

21

considered medical records and information provided by her attorneys that they had not reviewed

22

during the course of treatment. A footnote in the decision describes the extensive materials

23

provided by plaintiff’s counsel and the request by counsel to opine on injuries caused by the

24

plaintiff’s fall “NOT ONLY based on your own observations but also based on your

25

understanding of the patient’s medical records as well.” Id. at 826 n.2 (emphasis in original).

However,

26

The court concludes that Goodman did not adopt the Eighth Circuit’s approach of

27

requiring a Rule 26(a)(2)(B) report any time an expert offers expert opinions. Rather, the Ninth

28

Circuit joined the Sixth and Seventh Circuits that have held expert reports are required when a
15

1

treating provider is used to render opinions that are not reached during the course of treatment.

2

Goodman cited, but did not criticize, a number of district court decisions in this circuit that have

3

“limited treating physician testimony to opinions formed during the course of treatment when the

4

party seeking admission of the testimony disclosed no expert report.” Id. at 825. After citing

5

these cases, Goodman announced its holding that “a treating physician is only exempt from Rule

6

26(a)(2)(B)’s written report requirement to the extent that his opinions were formed during the

7

course of treatment.” Id. at 826. The court in Lutrell v. Novartis Pharmaceuticals Corp., 894 F.

8

Supp. 2d 1324 (E.D. Wash. 2012), reached the same conclusion. Applying Goodman, it found

9

“a treating physician may be allowed to opine even as to causation if the opinion was formed

10

during the course of providing treatment, regardless of submission of an expert report.” Id. at

11

1333. However, Lutrell noted that in United States v. Urena, 659 F.3d 903, 908 (9th Cir. 2011),

12

a criminal case, the Ninth Circuit stated that a treating physician’s opinion on issues of causation

13

is expert testimony.

14

Urena is clearly distinguishable and its holding limited. The decision was not based on

15

and did not cite, the Federal Rules of Civil Procedure. Urena was convicted of assault with a

16

dangerous weapon and possession of contraband in prison arising out of an altercation with

17

another inmate who received superficial lacerations that required stitches. A “shank” was found

18

underneath Urena’s shoulder. Urena confessed that the shank was his and that he held it during

19

the fight. At trial the government called the injured inmate’s treating physician who testified

20

about the nature and extent of the inmate’s injuries. The doctor’s report stated that an injury to

21

the inmate’s right eye was likely caused by a punch or a fall to the ground, not a knife. The

22

government moved to preclude Urena from asking the doctor about causation and the court

23

agreed as long as the government did not open the door to that line of questioning on direct.

24

Urena then sought to designate the doctor as his own medical expert, which the trial court

25

denied. On appeal, Urena argued the district judge abused his discretion by refusing to instruct

26

the jury on his theory that he acted in self-defense, and that his Confrontation Clause rights were

27

violated by refusing to allow him to cross-examine the treating physician about the cause of the

28
16

1

other inmate’s injuries. He also claimed the trial court abused its discretion by refusing to allow

2

him to designate the doctor as an expert during trial.

3

The Ninth Circuit found the trial court did not abuse his discretion in denying Urena’s

4

belated attempt to designate the doctor as his medical expert during trial, stating the trial court

5

had “ample discretion to prevent a party from designating a new expert after the trial has

6

started.” Id. The Ninth Circuit also found no abuse of discretion in the exclusion of evidence

7

that Urena should have disclosed before trial in reciprocal discovery required by the Federal

8

Rules of Criminal Procedure. Id. at 909 (“It follows from these principles that a district court

9

may normally refuse to permit expert testimony from an expert not previously designated before

10

trial in the pretrial conference.”). The actual case holding stated that the district court did not

11

abuse its discretion in declining to permit Urena to add the doctor as a defense witness during

12

trial. Id. (“We hold that the district court did not abuse its discretion in declining to permit Urena

13

to add Dr. David as a defense witness on the causation issue during trial.”).

14

The Urena court noted that “other courts have held that a physician’s assessment of the

15

cause of an injury is expert testimony.” Id. at 908 (citing decisions in the Second and Eleventh

16

Circuit). The Ninth Circuit simply agreed with these two circuits that the doctor’s “opinions on

17

issues of causation required expert testimony.” Id. The Ninth Circuit made this statement

18

responding to the defendant’s argument that he was not required to designate the doctor as an

19

expert before trial “because a doctor’s evaluation of an injury is intertwined of his judgment of

20

what caused the injury.” Id. The Urena court did not cite Goodman and cited two cases that

21

were not addressed in Goodman.

22

requirements for a treating physician providing an expert opinion on the causation of a patient’s

23

injury. It also did not explicitly address experts who provide opinions under Federal Rule of

24

Evidence 702. Urena merely held that the trial court did not abuse its discretion in denying the

25

defendant’s request to designate the doctor as a defense expert witness during trial.

It did not address the expert designation and reporting

26

In short, the Urena decision simply does not apply to the requirements of Rule 26(a)(2).

27

A treating physician’s causation opinion is an expert opinion under Federal Rule of Evidence

28

702 because it requires training, education, and specialized knowledge. Goodman holds that if
17

1

that opinion was reached during the course of treating the patient, a Rule 26(a)(2)(B) report is

2

not required. After the 2010 amendments, a non-retained expert, like a treating physician, must

3

comply with the Rule 26(a)(2)(C) disclosure requirements, which are considerably less onerous

4

than the Rule 26(a)(2)(B) report requirements.

5

More recently, in DeRosa v. Blood Systems, Inc., 298 F.R.D. 661 (D. Nev. 2014), District

6

Judge Mahan assumed, without deciding, that treating physicians testifying in an expert capacity

7

were exempt from the report-disclosure requirements of Rule 26.

8

opinions offered in a treating physician’s affidavit used to support plaintiff’s opposition to a

9

motion for summary judgment on various grounds.

However, he excluded

10

In DeRosa, the plaintiff brought a medical malpractice action against Blood Systems, Inc.

11

(“BSI”) for personal injuries she alleged were sustained during a phlebotomy procedure.

12

Plaintiff’s treating physician, Dr. Enrico Fazzini, concluded the plaintiff’s symptoms were

13

irreversible and that she was permanently disabled from full use of her left arm. The plaintiff did

14

not disclose Dr. Fazzini as a witness in any capacity during discovery. BSI filed a motion for

15

summary judgment asserting plaintiff failed to present any evidence regarding the standard of

16

care for phlebotomy procedures. Under Nevada law, a medical malpractice claim brought

17

requires a plaintiff to establish that defendant’s conduct departed from the accepted standard of

18

medical care.

19

Plaintiff filed Dr. Fazzini’s affidavit in response to the motion for summary judgment in

20

order to establish the standard of care for phlebotomy. Dr. Fazzini’s affidavit stated “[i]n my

21

professional medical opinion, the phlebotomist’s care and treatment fell below the reasonable

22

standard of care for such treatment in the medical industry.” Id. at 664. The affidavit did not

23

convey any details concerning what types of precautions, techniques, or other actions constitute

24

the reasonable standard of care for phlebotomy procedures and did not specify any particular

25

actions by the BSI technician that violated the standard. Additionally, the plaintiff presented no

26

evidence of Dr. Fazzini’s experience, if any, in the field of phlebotomy that would qualify him as

27

an expert on the standard of care. The court agreed that a treating physician could testify to the

28

standard of care in medical malpractice cases, but “only if the physician would qualify as an
18

1

expert in the field in which in which he is testifying.” Id (citing Prabhu v. Levine, 111 Nev.

2

1538, 930 P.2d 103, 109 (1996)). Because the plaintiff did not indicate that Dr. Fazzini would be

3

called as a witness prior to her response to the motion for summary judgment, the court declined

4

to presume Dr. Fazzini was qualified and pointed out that both the court and the defendant “are

5

left only to guess at what the content of his testimony might be.” Id.

6

The court next addressed the plaintiff’s arguments based on Harnischfeger that treating

7

physicians testifying in an expert capacity are exempt from the report disclosure requirements of

8

Rule 26. Id. at 664–65. The court assumed, arguendo, that this assertion is true, but pointed out

9

that Rule 26(a)(2)(C) still requires a disclosure, stating “the subject matter on which the witness

10

is expected to present evidence . . . and a summary of the facts and opinions to which the witness

11

is expected to testify.” Id. at 664. The court found the case before it “a prime example of why

12

such disclosures are necessary.” Id. Applying Rule 37(c), the court found that the plaintiff could

13

not rely on Dr. Fazzini’s affidavit to oppose the motion and granted summary judgment in BSI’s

14

favor. Id. (“The court will not allow plaintiff to game the court by waiting until the eleventh

15

hour to designate an expert to testify to an essential element of her claim, preventing BSI from

16

deposing him or otherwise learning the basis for and substance of his opinions.”).

17

To summarize, before the 2010 amendments to Rule 26(a)(2), the majority of courts held

18

that treating physicians providing opinions on causation, diagnosis, prognosis, and the extent of

19

disability were not required to provide Rule 26(a)(2)(B) reports if their opinions were formed

20

during the course of treating their patients. However, if a treating physician’s opinions were

21

based on information provided by an attorney or others that were not reviewed during the course

22

of treatment, a Rule 26(a)(2)(B) report was required “insofar as their additional opinions are

23

concerned.” Goodman, 644 F.3d at 826. The 2010 amendments to Rule 26(a)(2) now mandate

24

that non-retained experts, like treating medical providers, who offer opinions based on their

25

“knowledge, skill, experience, training or education” under Federal Evidence Rules 702, 703, or

26

705, make the disclosures required by Rule 26(a)(2)(C). Rule 26(a)(2)(C) requires disclosure of

27

“(i) the subject matter on which the written witness is expected to present evidence under Federal

28

Evidence Rule 702, 703 or 705; and (ii) a summary of facts and opinions to which the witness is
19

1

expected to testify.” Fed. R. Civ. P. 26(a)(2)(C)(i), (ii). The disclosure obligation stated in

2

26(a)(2)(C) “does not apply to facts unrelated to the expert opinions the witness will present.”

3

Fed. R. Civ. P. 26 Advisory Comm. Notes (2010). A treating physician is still a percipient

4

witness of the treatment rendered and may testify as a fact witness and also provide expert

5

testimony under Federal Evidence Rules 702, 703, and 705. However, with respect to expert

6

opinions offered, a Rule 26(a)(2)(C) disclosure is now required.

7

D. Sanctions Under Rule 37(c)(1)

8

Rule 37 authorizes sanctions for a party’s failure to make disclosures or cooperate in

9
10
11
12

discovery:
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.

13

Fed. R. Civ. P. 37(c)(1).

Rule 37(a)(4) explicitly provides that an evasive or incomplete

14

disclosure, answer, or response to a discovery obligation “is to be treated as a failure to disclose,

15

answer, or respond.”

16

requirements by forbidding the use at trial of any information that is not properly disclosed.

17

Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 861 (9th Cir. 2014). Rule 37(c)(1) is

18

a “self-executing, automatic” sanction designed to provide a strong inducement for disclosure.

19

Goodman, 644 F.3d at 827.

Thus, Rule 37 gives “teeth” to Rule 26’s mandatory disclosure

20

The burden is on the party facing discovery sanctions under Rule 37(c)(1) to prove that

21

its failure to disclose was substantially justified or harmless. R&R Sails, Inc., v Ins. Co. of Pa.,

22

673 F.3d 1240, 1246 (9th Cir. 2012) (citing Torres v. City of Los Angeles, 548 F.3d 1197, 1213

23

(9th Cir. 2008) (applying Rule 37(c)(1) to a failure to disclose an expert report as required by

24

Rule 26(a)(2)(B)).

25

requirements of Rule 26(a) is a sanction available to the district court even in the absence of a

26

showing of bad faith or willfulness. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d

27

1101, 1106 (9th Cir. 2001). Under Rule 37(c)(1), preclusion of evidence is neither mandatory,

28

nor the only sanction the court may consider. Rule 37(c)(1) explicitly provides that in addition

Exclusion of an expert’s testimony for failure to comply with the

20

1

to or instead of preclusion, the court may order the following sanctions: (1) the payment of

2

reasonable expenses including attorney’s fees caused by the failure; (2) an instruction informing

3

the jury of the party’s non-compliance; and (3) any “other appropriate sanctions, including any

4

of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” Fed. R. Civ. P. 37(c)(1)(A)–(C).

5

The Ninth Circuit has recognized that although “in the ordinary case, violations of Rule

6

26 may warrant evidence preclusion,” it is a harsh sanction. R&R Sails, 673 F.3d at 1247.

7

Preclusion of evidence is a “particularly harsh” sanction when it would effectively result in

8

dismissal of a party’s claim. Id. When a preclusion sanction would amount to a dismissal of a

9

party’s claim the Ninth Circuit requires the district court to determine (1) whether the claimed

10

noncompliance involved willfulness, fault, or bad faith; and (2) the availability of lesser

11

sanctions. Id. These two requirements are part of the court’s harmlessness analysis. Id.

12

II. Analysis and Decision

13

This case raises the recurring issue of the permissible scope of the testimony of a treating

14

physician who fails to provide an expert report under Rule 26(a)(2)(B), the scope of the opinions

15

treating providers may provide in the absence of a Rule 26(a)(2)(B) expert report, and the

16

adequacy of Plaintiffs’ Rule 26(a)(2)(B) and (C) disclosures.

17

Here, both Plaintiffs disclosed 11 medical treating providers by name as well as a “person

18

most knowledgeable” and a custodian of records as witnesses who would provide treating

19

physician and expert testimony. To the extent any of the providers are relied upon to testify

20

about information not acquired or relied upon in treating Plaintiffs, a Rule 26(a)(2)(B) report was

21

required for those opinions.

22

disclosure requirements of Rule 26(a)(2)(C). Plaintiffs claim their initial and supplemental

23

disclosures comply with their Rule 26(a)(2)(C) obligations. The court disagrees.

At a minimum, Plaintiffs were required to comply with the

24

A. Plaintiffs Disclosures Do Not Satisfy Rule 26(a)(2)(C)

25

The court finds that both Plaintiffs’ initial disclosure and supplemental disclosure for

26

their treating physicians fail to meet the requirements of Rule 26(a)(2)(C). They do not disclose

27

any expert opinions at all. Although the identical disclosures arguably include broad subject

28

matter areas on which each witness is expected to testify or present evidence, they do not include
21

1

a “summary of the facts and opinions to which the witness is expected to testify.” See Fed. R.

2

Civ. P. 26(a)(2)(C)(ii). The initial disclosure and supplemental disclosures do not even identify

3

the conditions for which Plaintiffs were treated, their diagnosis or prognosis, or the course of

4

treatment provided. No information at all is provided linking any injury claimed by either

5

Plaintiff to the accident in this case. The identical descriptions of expected testimony that

6

Plaintiffs provided for all 11 treating physicians and providers are so generic, unhelpful, and

7

boilerplate they could apply to any virtually any case.

8

In addition, the disclosures and supplemental disclosures of the treating physicians

9

designate unidentified “persons most knowledgeable” and custodians of records for each of the

10

named providers.

During oral argument, counsel for Alfaro clarified that the disclosures

11

provided for custodians of records was only a precaution in case they were needed to

12

authenticate the medical records and bills for each provider. With respect to the “persons most

13

knowledgeable,” counsel for Alfaro argued that frequently, treating physicians are not

14

knowledgeable about billing practices and records, or able to testify about the reasonableness of

15

the charges. For this reason, the disclosures identified “persons most knowledgeable” for each

16

provider expecting that the provider might produce an office manager or other administrative

17

staff member to testify at deposition or trial instead of the provider. Plaintiffs’ initial and

18

supplemental disclosures provided detailed information about past medical specials each Plaintiff

19

incurred for each of the 11 providers. They did not provide the summary of opinions or factual

20

bases for any opinions that the past medical specials were incurred for any medical condition(s)

21

caused by the accident. They also did not state any facts on which they based the conclusory

22

opinion that the treatment and bills were reasonable and necessary. The court and opposing

23

counsel are left to guess what testimony each of the providers may offer.

24

A custodian of records may certainly authenticate medical records. The court is hard

25

pressed to find any prejudice to opposing counsel because a name was not provided for each

26

custodian of records for each provider. In the court’s experience, a custodian of records’

27

testimony is rarely needed, especially where opposing counsel have been provided with HIPAA

28

compliant releases enabling them to obtain medical records directly from the providers. The
22

1

same is not true with Plaintiffs’ designation of a “person most knowledgeable” from each of the

2

medical providers. Counsel for Plaintiffs do not explain how an unidentified “person most

3

knowledgeable” office manager or administrator from each of the medical providers would be

4

able to offer admissible opinions about reasonableness and necessity of past medical specials.

5

This is especially true where, as here, counsel stated in oral argument the treating physicians

6

themselves are often unable to opine on the reasonableness and customary charges for medical

7

services provided.

8

Rule 26(a)(2)(B) and Rule 26(a)(2)(C) share the same common purpose: to prevent unfair

9

surprise and to conserve resources. An opposing party is entitled to an expert disclosure from a

10

non-retained expert, including treating providers, that specifies what opinions will be offered,

11

and the factual bases for those opinions. Rule 26(a)(2)(C) mandates “summary disclosures of the

12

opinions to be offered by the expert witness who are not required to provide reports under Rule

13

26(a)(2)(B) and of facts supporting those opinions.” Fed. R. Civ. P. 26 Advisory Comm. Notes

14

(2010). Although considerably less is required under Rule 26(a)(2)(C), the disclosure must

15

contain sufficient information to allow opposing counsel to make an informed decision on which,

16

if any, of the treating providers should be deposed, determine whether to retain experts, and

17

conduct a meaningful deposition or cross examination of the witness at trial. See, e.g., Pineda v.

18

City & Cnty. of S.F., 280 F.R.D. 517, 523 (N.D. Cal. 2012) (finding that without information

19

about the opinions on which non-retained experts are expected to testify and the main facts on

20

which these opinions are based, opposing counsel’s ability to meaningfully depose or cross

21

examine these witnesses was undermined, and counsel could not make an informed decision on

22

which, if any, of numerous treating physicians should be deposed).

23

B. Alfaro’s Expert Disclosure Does Not Satisfy Rule 26(a)(2)(B)

24

The court also finds that Alfaro’s disclosure of Dr. Fazzini as her retained expert fails to

25

comply with her Rule 26(a)(2)(B) obligations. Even before Goodman was decided, courts

26

considered treating physicians retained to conduct a records review to be specially retained

27

experts for whom an expert report is required under Rule 26(a)(2)(B). See, e.g., Wreath v.

28

United States, 161 F.R.D. 448, 450 (D. Kan. 1995). Goodman held that Rule 26(a)(2)(B) reports
23

1

were required of treating physicians who offer expert opinions based on information reviewed or

2

acquired outside the treating relationship. 644 F 3d at 826. Rule 26(a)(2)(B) reports must be

3

“detailed and complete.” Elgas, 179 F.R.D. at 300. Dr. Fazzini’s two-page report falls short of

4

this requirement.

5

Although the expert witness designation for Dr. Fazzini describes his report as a medical

6

records review, clearly it is not. The report consists solely of information reported to Dr. Fazzini

7

by Alfaro and the results of his neurological examination of her on that particular day. No

8

medical records of any other provider are reviewed. Dr. Fazzini recommended a series of

9

additional tests, told Alfaro to refrain from driving, and recommended that she return for re-

10

evaluation in one month. This is by no stretch of the imagination a medical records review.

11

Rather, it is a narrative report of a single office visit Alfaro had with Dr. Fazzini for a

12

neurological consult on a particular day. It appears counsel for Alfaro intended to have Dr.

13

Fazzini prepare a medical records review report, but did not do so and merely attached a single

14

narrative report to the expert witness designation along with his CV and list of prior testimony,

15

publications, and compensation.

16
17

C. Rule 37(c)(1) Sanctions are Warranted and Plaintiffs’ Failure to Satisfy Rule
26(a)(2) Obligations Was Not Harmless

18

Plaintiffs do not claim that their failure to timely meet the Rule 26(a)(2) disclosure

19

obligations is substantially justified or harmless. Rather, Plaintiffs claim their disclosures are

20

adequate in all respects, and that preclusion or other sanctions are not warranted or authorized by

21

Rule 26. The court disagrees. A party that fails to timely comply with its Rule 26(a) and (e)

22

disclosure requirements unfairly interferes with opposing counsel’s ability to properly prepare

23

the case for deposition and trial. It also thwarts opposing counsel’s ability to determine whether

24

its own experts are required, unnecessarily prolongs litigation, and interferes with the court’s

25

management of its docket. The Ninth Circuit has repeatedly held that parties are required to

26

timely comply with the court’s case management order, which is entered “to establish deadlines

27

to foster the efficient treatment and resolution of cases.” Wong v. Regents of Univ. of California,

28

410 F.3d 1052, 1060 (9th Cir. 2005). The Ninth Circuit has also emphasized that a case
24

1

management order “is not a frivolous piece of paper, idly entered, which can be cavalierly

2

disregarded by counsel without peril.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

3

610 (9th Cir. 1992) (internal quotations and citations omitted).

4

In this district, the Local Rules of Practice establish 180 days as a presumptively

5

reasonable amount of time to complete discovery. See LR 26-1(e). The 180 days is measured

6

from the date of the first defendant’s answer or first appearance. The Local Rule requires parties

7

to designate expert witnesses 60 days before the discovery cutoff, and rebuttal witnesses 30 days

8

thereafter. This gives parties 60 days to complete rebuttal expert disclosures, any follow up

9

discovery suggested by the expert designations, and any expert depositions before the close of

10

discovery. Dispositive motions are due 30 days after the close of discovery so that the parties

11

have a fully developed record on which to base dispositive motions. If dispositive motions are

12

not filed, the joint pretrial order is due 30 days after the dispositive motion deadline, which

13

results in a trial setting from the district judge. If dispositive motions are timely filed the

14

deadline for filing the joint pretrial order is suspended until 30 days after decision of dispositive

15

motions. These discovery plan and scheduling order deadlines are designed to bring cases to

16

trial in a timely and efficient manner after the close of discovery. When parties do not timely

17

comply with their expert disclosure obligations, the court’s discovery plan and scheduling order

18

is disrupted, and resolution of the case on the merits delayed.

19

In this case, the parties applied for and received special scheduling review, and 55 days

20

more than deemed presumptively reasonable under LR 26-1(e) in which to complete discovery.

21

Before giving the parties the special scheduling review they requested, the court set the matter

22

for hearing and heard from both sides concerning their justification for the additional time. The

23

court gave the parties the time they requested, but expressly told them that they were unlikely to

24

get any further extensions absent a strong showing of good cause and due diligence. See Mins.

25

of Proceedings (ECF No. 17).

26

On April 29, 2016, less than 21 days before the expert disclosure deadline, the parties

27

submitted a proposed stipulation extending the discovery plan and scheduling order deadlines an

28

additional 90 days. The court set the matter for hearing. Counsel for Plaintiffs did not appear at
25

1

the hearing to provide additional justification for the additional 90 days requested. To the extent

2

the parties were seeking an extension of the deadlines for disclosing experts in their case-in-

3

chief, the stipulation was not timely filed. LR 26-4 requires any stipulation to extend any

4

deadline set by the court’s discovery plan and scheduling order to be filed at least 21 days before

5

the expiration of the deadline. The stipulation did not represent that Plaintiffs needed additional

6

time to complete expert disclosures. Rather Defendants were requesting additional time because

7

Torrez disclosed additional medical records and testified at his deposition that surgery had been

8

recommended and Defendants wanted to retain an exert to conduct an independent medical

9

exam. The court gave the parties a 30-day extension of the deadline to conduct fact discovery

10

because of the delay experienced in receiving subpoenaed information from LVMPD related to

11

the accident and Torrez’s arrest and prosecution for DUI, but did not extend the expert disclosure

12

deadlines.

13

In short, Plaintiffs do not claim their failure to disclose was substantially justified or

14

harmless, and disruption of the court’s case management order is not harmless. Plaintiffs’ failure

15

to make the required expert disclosures prejudiced Defendants, who were unable to make

16

informed decisions about which, if any, of the 11 providers and 11 “persons most

17

knowledgeable” from each provider should be deposed, determine whether defense experts were

18

required, or conduct meaningful cross-examination of the experts at deposition or trial. Without

19

the required disclosures, Defendants were relegated to taking depositions of all 11 providers

20

without meaningful information to prepare for cross-examination at deposition or trial. Rule

21

37(c)(1) sanctions are therefore warranted. The more difficult question is whether preclusion or

22

some other sanction or combination of sanctions should be imposed.

23

It is unknown whether preclusion sanctions would effectively result in dismissal of

24

Plaintiffs’ claims because neither side provided the court with any information concerning the

25

Plaintiffs’ injuries. Plaintiffs have asserted state negligence claims against Defendants. To

26

prevail on a negligence claim in Nevada, a plaintiff must prove: the existence of a duty of care,

27

breach of that duty, the breach was the legal cause of the plaintiff’s injuries, and plaintiff

28

suffered damages. Hadler v. PacifiCare of Nevada, 340 P.3d 1264, 1267 (Nev. 2014). In most
26

1

cases, medical expert testimony is required to establish legal causation in a negligence claim. In

2

some cases, expert causation testimony is not required where “the connection is a kind that

3

would be obvious to laymen, such as a broken leg from being struck by an automobile.” Brooks,

4

620 F.3d at 899 (citing Moody v. Maine Cent. R.R. Co., 823 F.2d 693, 695 (1st Cir. 1987)).

5

As the court has no information about either Plaintiffs’ claimed injuries, the court cannot

6

whether preclusion sanctions would effectively result in dispositive sanctions. To the extent that

7

either Plaintiff requires medical expert opinion testimony on causation, a preclusion sanction

8

would dispose of their negligence claims. As such, the Ninth Circuit requires the court to

9

consider whether Plaintiffs’ failure to comply with their Rule 26(a) disclosure obligations was

10

the result of willfulness, fault, or bad faith. The court concludes it was. As indicated, Plaintiffs

11

do not claim their failure to comply was substantially justified or harmless. Rather, Plaintiffs

12

argue they met all of their disclosure obligations. The violation was willful in the sense it is

13

clear that Plaintiffs intentionally made disclosures designed to give as little information as

14

possible despite the requirements of Rule 26(a)(2)(C). In opposing these motions, Plaintiffs did

15

not ask for an opportunity to cure these defects, or claim the defects were curable. Plaintiffs

16

gave the court no information at all about their injuries, how many treating providers were

17

expected to offer opinions, or what opinion any of their treating physicians would offer. No

18

information was provided concerning whether those opinions were based on treatment, or

19

rendered at the request of counsel for purposes of litigation. Under these circumstances, the

20

court concludes Plaintiffs’ failure to comply with their Rule 26(a)(2) disclosure obligations was,

21

at a minimum, a result of refusal to provide the information required under Rule 26(a)(2)(C) and

22

erroneous reading of Rule 26(a).

23

When preclusion results in dismissal of a party’s claim, the Ninth Circuit also requires

24

the court to consider whether lesser sanctions are available. Neither side has suggested any

25

alternative sanction. In Pineda, the court imposed Rule 37(c)(1) sanctions thoughtfully crafted

26

to avoid the harsh sanction of precluding all of the plaintiffs’ non-retained treating physicians

27

from testifying. 280 F.R.D. at 523. There, the court granted the motion to preclude with respect

28

to 10 of the plaintiffs’ non-retained treating providers but allowed the plaintiffs to designate 3 of
27

1

13 non-retained treating providers intended to provide expert opinions, and amend their Rule

2

26(a)(2)(C) disclosure to provide the information required if the plaintiffs elected to do so.

3

Mindful of the additional expense the defendant would incur, the court also required the

4

plaintiffs to immediately advise defendant whether they intended to provide amended disclosures

5

as required. If so, the court made the plaintiffs responsible for additional costs defendant

6

incurred by late disclosure as a sanction. The court declined to extend the expert disclosure

7

deadline because the time had not yet run, finding it premature. Id. at 523–24.

8

Here, however, the deadline for designating experts ran May 11, 2016, the deadline for

9

completing discovery ran August 10, 2016, and dispositive motions are due September 9, 2016.

10

Imposing the types of sanctions the Pineda court imposed would reduce or eliminate much of the

11

prejudice to Defendants by Plaintiffs’ late disclosures. The court could simply shift the costs of

12

Plaintiffs’ noncompliance to Plaintiffs. However, substantial delay would occur in a case where

13

the parties have already received special scheduling review and more time than deemed

14

presumptively reasonable to complete discovery. It would require reopening discovery and

15

establishing new deadlines, and disrupt the court’s management of its docket. It would also

16

impact the integrity of the court’s orders. Parties are simply not at liberty to ignore the court’s

17

discovery plan and scheduling order deadlines without consequence. Had Plaintiffs made some

18

effort to make the required disclosures, the court might be influenced to impose lesser sanctions.

19

However, as indicated, the disclosures Plaintiffs made in this case were so generic, unhelpful and

20

boilerplate, that they could have been made in virtually any case. Moreover, even in the face of

21

motions to strike and exclude, Plaintiffs steadfastly maintained that they met their disclosure

22

obligations, nothing more was required, and no sanctions were authorized. Lesser sanctions are

23

unlikely to deter Plaintiffs’ counsel from advocating the same position prospectively. For these

24

reasons, the court finds that, although preclusion sanctions are potentially dispositive, they are

25

warranted.

26

///

27

///

28

///
28

1

Accordingly,

2

IT IS ORDERED:

3

1. Defendants’ Motion to Strike Torrez’s Future Damages Calculation (ECF No. 23) and

4

Motion to Preclude Plaintiffs from Offering Expert Testimony (ECF Nos. 24) are

5

GRANTED.

6

2. Counter-Defendant’s Motion to Preclude Plaintiffs from Offering Expert Testimony

7

(ECF Nos. 26) and Motion to Strike Report of Dr. Enrico Fazzini (ECF No. 27) are

8

GRANTED.

9

Dated this 24th day of August, 2016.

10
11
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29