Westerdahl et al

Filing 14

ORDER denying 10 Motion to Exclude Plaintiff's Treating Physician From Testifying as an Expert Witness. Dr. White's testimony limited as outlined. If defendant takes issue with this resolution, he may, within 7 days of this order, make a filing as outlined. So Ordered by Judge Joseph N. Laplante. (jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Julie Westerdahl, et al.
v.

Civil No. 10-cv-266-JL

Bruce I. Williams
SUMMARY ORDER
The court is not inclined to undertake a rigorous
construction of the parties' joint-filed Discovery Plan (document
no. 7) to determine whether its reference to "experts" on p. 3
was intended to cover both retained and non-retained expert
witnesses, although common sense suggests that it was intended to
cover only retained experts (particularly given its reference to
expert reports and Fed. R. Civ. P. 26(a)(2)(B), which requires
such reports only for retained experts, see Aumand v. Dartmouth
Hitchcock Med. Ctr., 611 F. Supp. 2d 78, 88 (D.N.H. 2009)).
The bottom line is that Dr. White's role as a non-retained
treating physician witness, and the subject matter of his
testimony, were disclosed to the defendant barely one month after
the deadline set forth in the Discovery Plan (if it even applied
to non-retained experts). Despite the heavy motion practice on
this issue, complete with a reply and surreply, the defendant has
not persuasively articulated any possible prejudice from that

late disclosure (if any).

So it was harmless and does not

warrant exclusion of Dr. White or his opinion testimony.

See

Fed. R. Civ. P. 37(c)(1); cf. Aumand, 611 F. Supp. 2d at 87
(excluding opinion testimony by non-retained treating physician
witnesses where they were not disclosed until pre-trial
statement).

Defendant’s motion to exclude (document no. 10) is

therefore denied.
Plaintiffs’ counsel is advised, however, that Dr. White’s
testimony will be limited to the subjects specified in the
February 8, 2011 disclosure letter, subject to the further
limitation that his opinion testimony must be (a) fairly
discernible from Julie Westerdahl’s medical records or otherwise
based on opinions that Dr. White formed in a reliable manner
while examining and treating her; and (b) within the scope of
opinions that a treating physician reasonably and normally would
form during such examination and treatment.

See Bartlett v. Mut.

Pharm. Co., 742 F. Supp. 2d 182, 200 (D.N.H. 2010).

Plaintiff’s

counsel is cautioned not to take excessive liberties in this
regard.
If the defendant takes issue with this resolution of the
issue, he may, within 7 days of this order, subject to the
constraints of Rule 11, make a filing identifying any prejudice

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he will suffer as a result of this resolution, and proposing a
specific remedy.

SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

July 13, 2011

Andrew D. Dunn, Esq.
Elizabeth D. Foster, Esq.
Thomas J. Fay, Esq.

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