Serwe v. Wal-Mart Stores, Inc.

Filing 39

ORDER that Defendant's Motion to Exclude Testimony from Plaintiff's Treating Physicians and Evidence of Plaintiff's Medical Billing Pursuant to FRCP 37 (ECF No. 29 ) is denied. Signed by Judge Miranda M. Du on 3/7/2018. (Copies have been distributed pursuant to the NEF - LH)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 Plaintiff, 9 10 11 v. ORDER WAL-MART STORES, INC., a Delaware Foreign Corporation, et. al., (Re: Def’s Motion to Exclude — ECF No. 29) Defendants. 12 13 *** Case No. 2:16-cv-00017-MMD-NJK MICHAEL L. SERWE, I. SUMMARY 14 Before the Court is Defendant Wal-Mart Stores, Inc.’s (“Walmart”) Motion to 15 Exclude Testimony from Plaintiff’s Treating Physicians and Evidence of Plaintiff’s Medical 16 Billing Pursuant to FRCP 37 (“Motion”). (ECF No. 29.) Plaintiff Michael Serwe (“Serwe”) 17 filed a response (ECF No. 32); and Walmart has replied (ECF No. 33.) For the reasons 18 discussed, below the Motion is denied 19 II. BACKGROUND 20 Serwe alleges that on June 3, 2014, he was riding his bicycle across Walmart’s 21 parking lot when he crashed and injured himself. (ECF No. 1-2 at 3.) Serwe appears to 22 assert a single claim for negligence. (ECF No. 1-2.) 23 There is no dispute that Plaintiff has not disclosed any expert witness in this case. 24 In Plaintiff’s disclosures dated April 22, 2016, Plaintiff identified among witnesses his 25 treating physician, Kirk Mendez, M.D., and the “Custodian of Records” for Mountain View 26 Hospital (“the Hospital”), and disclosed billing records from the Hospital. (ECF No. 29-6 at 27 3-5.) Plaintiff’s disclosures state that Dr. Mendez is “expected to testify regarding the facts 28 and circumstances surrounding the incident on June 3, 2014.” (Id. at 3.) 1 III. DISCUSSION 2 Walmart argues that Dr. Mendez should be excluded from testifying as an expert 3 witness because Plaintiff fails to disclose him as an expert.1 (ECF No. 29 at 10.) Plaintiff 4 counters that Dr. Mendez is expected to testify as to his treatment of Plaintiff, and not as 5 a retained expert. (ECF No. 32 at 4-5.) 6 Treating physicians may testify as to “opinions that were formed during the course 7 of treatment” without providing a written report. Fed. R. Civ. P. 26(a)(2)(B); see Goodman 8 v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011) (holding that a treating 9 physician is exempt from Rule 26(a)(2)’s requirement to provide a written report, but when 10 a treating physician morphs into a witness hired to render expert opinions that go beyond 11 the usual scope of a treating doctor’s testimony, the proponent of the testimony must 12 comply with Rule 26(a)(2)). Walmart seems to suggest that causation cannot fall within 13 opinions formed during the course of treatment. However, a treating physician may have 14 to determine the cause of injuries as part of the treatment. Thus, to the extent Dr. Mendez 15 determined the cause of Plaintiff’s injuries as part of the course and scope of his treatment, 16 then Dr. Mendez may testify as to this matter. Dr. Mendez, however, may not render expert 17 opinions that exceed the scope of his treatment of Plaintiff. 18 IV. CONCLUSION 19 The Court notes that the parties made several arguments and cited to several cases 20 not discussed above. The Court has reviewed these arguments and cases and determines 21 that they do not warrant discussion as they do not affect the outcome of Walmart’s Motion. 22 /// 23 /// 24 /// 25 /// 26 27 28 1Walmart also argues that evidence of the medical billings should be excluded absent testimony from an expert witness as to the reasonableness of the bills. (ECF No. 29 at 19-20.) However, it is not clear to the Court that Dr. Mendez cannot testify as to the reasonableness of the medical bills as part of his treatment of Plaintiff. 2 1 It is therefore ordered that Defendant’s Motion Exclude Testimony from Plaintiff’s 2 Treating Physicians and Evidence of Plaintiff’s Medical Billing Pursuant to FRCP 37 (ECF 3 No. 29) is denied. 4 5 DATED THIS 7th day of March 2018. 6 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?