Wimer v. Everhard et al

Filing 25

Opinion and Order. Plaintiff's Motion to Exempt Plaintiff's Treating Physicians from the Written Report Requirements of Fed.R.Civ.P. 26(a)(2)(B) (Related doc # 21 ) is granted. Judge Christopher A. Boyko on 12/10/2018. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT WIMER,
Plaintiff,
vs.
JOSHUA EVERHARD, et al.,
Defendants.

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CASE NO. 1:17CV2021
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #21) of Plaintiff
Robert Wimer to Exempt Plaintiff’s Treating Physicians from the Written Report
Requirements of Fed.R.Civ.P. 26(a)(2)(B).
This is a motor vehicle personal injury case brought in this Court on the basis of
diversity jurisdiction. As a result of the automobile accident, Plaintiff allegedly suffered
injuries to his neck, back and left shoulder. Plaintiff has not retained a medical expert and
intends to rely on the testimony of his treating physicians at trial.
Pursuant to Fed.R.Civ.P. 26(a)(2)(B), a written report must be provided by a witness

who is “retained or specially employed to provide expert testimony in the case or one whose
duties as the party’s employee regularly involve giving expert testimony.”
Plaintiff has disclosed the identities of his physicians and has provided Defendant with
their medical records. Plaintiff expects the physicians to testify concerning the nature, cause
and treatment of his injuries. Plaintiff asks the Court to exempt the treating physicians from
the expert report requirement.
Defendant argues that the opinions of the treating doctors are not readily apparent in
the medical records. Moreover, Defendant asserts that it is important to know specifically
whether Plaintiff’s doctors opine that a new injury occurred at the C3-4 level of Plaintiff’s
spine as a result of the accident or if the accident caused an aggravation of a pre-existing
condition.
The Advisory Committee Notes to Rule 26 state: “A treating physician, for example,
can be deposed or called to testify at trial without any requirement for a written report.”
“Implicit in Rule 26 . . . is the recognition that some witnesses may qualify as experts even
though such witnesses need not produce the report required by Rule 26(a)(2) (B). Treating
physicians are the quintessential examples of such experts.” Weimer v. Honda of America,
Mfg., Inc., No. 2:06-CV-844, 2008 WL 4503562, at *1 (S.D.Ohio Oct. 1,2008). The Sixth
Circuit has expressly held that a treating physician who is not required to produce the Rule 26
report may nevertheless testify as to his opinion on causation when that opinion is based on
his treatment of the patient. Fielden v. CSX Transp., Inc., 482 F.3d 866, 871 (6th Cir. 2007).
Therefore, the Court grants the Motion (ECF DKT #21) of Plaintiff Robert Wimer to
Exempt Plaintiff’s Treating Physicians from the Written Report Requirements of Fed.R.Civ.P.

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26(a)(2)(B). However, the Court recognizes its evidentiary gate-keeping function, and will
re-visit this issue if raised by a motion in limine or otherwise, should Plaintiff’s treating
physicians offer opinion testimony which goes beyond the matters learned in the scope of
their treatment of Plaintiff.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: December 10, 2018

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