Burgess et al v. Fischer et al

Filing 72

ORDER DENYING DEFENDANT'S MOTION IN LIMINE (DOC 69 ). The Court will not exclude the testimony of Plaintiffs treating physicians at this time. Therefore, Defendants motion in limine is DENIED. Signed by Magistrate Judge Michael J Newman on 03/02/2012. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LUCAS BURGESS, et al.,
:

Case No. 3:10-cv-24

:

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Plaintiffs,
-vs-

SHERIFF GENE FISCHER, et al.,

:

Defendants.

ORDER DENYING DEFENDANTS’ MOTION IN LIMINE (DOC. 69)

This case is before the Court on Defendants’ motion in limine to exclude the testimony of
Plaintiffs’ expert witnesses pursuant to Fed. R. Civ. P. 26(a)(2). Doc. 69. While Defendants
initially sought to exclude Dr. Paris’ testimony, they subsequently withdrew that request in their
Reply memorandum. Doc. 71 at PageID 624-25. Therefore, that portion of Defendants’ motion is
DENIED AS MOOT.
Defendants also seek to exclude the testimony of Plaintiffs’ treating physicians at trial for
failing to comply with Civil Rule 26(a)(2)’s disclosure requirements. Treating physicians are
generally not required to provide a written expert report. See Fed. R. Civ. P. 26(a)(2) advisory
committee notes to 1993 amendments; Kitts v. Gen. Tel. N., Inc., No. 2:04-cv-174, 2005 WL
2277438, at *5 (S.D. Ohio Sept. 19, 2005). Nonetheless, a party using treating physician testimony
at trial must timely disclose: (1) “the subject matter on which the witness is expected to present
evidence”; and (2) “a summary of the facts and opinions to which the witness is expected to testify.”
Fed. R. Civ. P. 26(a)(2)(C).

In Plaintiffs’ disclosure of expert witnesses report, Plaintiffs identified six treating
physicians. Doc. 58. For each witness, Plaintiffs stated that the physician examined or treated Mr.
Burgess’ injuries, “and may be called to testify regarding Mr. Burgess’ injuries and damages.” Id.
Plaintiffs did not provide any more information regarding each treating physician’s expected
testimony. See id.
The Court finds that Plaintiffs’ disclosures of the treating physicians -- Dr. Cortez, Dr.
Goodall, Dr. Ladson, Dr. Wilcher, Dr. Schmidt, and Dr. Hicks -- are insufficient to comply with
Civil Rule 26(a)(2)(C), as Plaintiffs have not provided “a summary of the facts and opinions to
which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C)(ii). Accordingly, Plaintiffs
are ORDERED to provide supplemental disclosures of their treating physicians to Defendants by
March 19, 2012. The supplemental disclosures must include the facts and opinions to which each
treating physician is expected to testify. To be clear, this Order does not authorize Plaintiffs to add
new experts in their supplemental disclosures.
The Court notes that -- given the April 20, 2012 discovery deadline in this case -- Defendants
have sufficient time to depose Plaintiffs’ treating physicians. If Defendants have already deposed
any of them, this Order authorizes Defendants to depose that physician a second time, if necessary.
Additionally, Defendants’ deadline for designation of rebuttal experts is extended until April 2,
2012.
The Court will not exclude the testimony of Plaintiffs’ treating physicians at this time.
Therefore, Defendants’ motion in limine is DENIED.
IT IS SO ORDERED.
s/ Michael J. Newman
United States Magistrate Judge

March 2, 2012

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