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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,

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v.

ORDER

WAL-MART STORES, INC., a Delaware
Foreign Corporation, et. al.,

(Re: Def’s Motion to Exclude —
ECF No. 29)

Defendants.

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Case No. 2:16-cv-00017-MMD-NJK

MICHAEL L. SERWE,

I.

SUMMARY

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Before the Court is Defendant Wal-Mart Stores, Inc.’s (“Walmart”) Motion to

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Exclude Testimony from Plaintiff’s Treating Physicians and Evidence of Plaintiff’s Medical

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Billing Pursuant to FRCP 37 (“Motion”). (ECF No. 29.) Plaintiff Michael Serwe (“Serwe”)

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filed a response (ECF No. 32); and Walmart has replied (ECF No. 33.) For the reasons

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discussed, below the Motion is denied

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II.

BACKGROUND

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Serwe alleges that on June 3, 2014, he was riding his bicycle across Walmart’s

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parking lot when he crashed and injured himself. (ECF No. 1-2 at 3.) Serwe appears to

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assert a single claim for negligence. (ECF No. 1-2.)

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There is no dispute that Plaintiff has not disclosed any expert witness in this case.

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In Plaintiff’s disclosures dated April 22, 2016, Plaintiff identified among witnesses his

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treating physician, Kirk Mendez, M.D., and the “Custodian of Records” for Mountain View

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Hospital (“the Hospital”), and disclosed billing records from the Hospital. (ECF No. 29-6 at

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3-5.) Plaintiff’s disclosures state that Dr. Mendez is “expected to testify regarding the facts

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and circumstances surrounding the incident on June 3, 2014.” (Id. at 3.)

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III.

DISCUSSION

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Walmart argues that Dr. Mendez should be excluded from testifying as an expert

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witness because Plaintiff fails to disclose him as an expert.1 (ECF No. 29 at 10.) Plaintiff

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counters that Dr. Mendez is expected to testify as to his treatment of Plaintiff, and not as

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a retained expert. (ECF No. 32 at 4-5.)

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Treating physicians may testify as to “opinions that were formed during the course

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of treatment” without providing a written report. Fed. R. Civ. P. 26(a)(2)(B); see Goodman

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v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011) (holding that a treating

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physician is exempt from Rule 26(a)(2)’s requirement to provide a written report, but when

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a treating physician morphs into a witness hired to render expert opinions that go beyond

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the usual scope of a treating doctor’s testimony, the proponent of the testimony must

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comply with Rule 26(a)(2)). Walmart seems to suggest that causation cannot fall within

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opinions formed during the course of treatment. However, a treating physician may have

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to determine the cause of injuries as part of the treatment. Thus, to the extent Dr. Mendez

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determined the cause of Plaintiff’s injuries as part of the course and scope of his treatment,

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then Dr. Mendez may testify as to this matter. Dr. Mendez, however, may not render expert

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opinions that exceed the scope of his treatment of Plaintiff.

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IV.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of Walmart’s Motion.

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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.
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It is therefore ordered that Defendant’s Motion Exclude Testimony from Plaintiff’s

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Treating Physicians and Evidence of Plaintiff’s Medical Billing Pursuant to FRCP 37 (ECF

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No. 29) is denied.

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DATED THIS 7th day of March 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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