Collie v. Wal-Mart Stores East, L.P.

Filing 68

ORDER denying Wal-Mart's MIL 48 to exclude or limit testimony of Collie's tx'ng physicians w/ out prejudice to refile same if Collie fails to comply w/ Para 2 & directing Collie to provide Wal-Mart w/ written disclosure id'ng subject matter upon which Collie's physicians will testify & summary of facts & opinions to which they will testify per FRCP by 6/15/17. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 5/24/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KATHLEEN ANN COLLIE,
Plaintiff
v.
WAL-MART STORES EAST, L.P.,
Defendant

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CIVIL ACTION NO. 1:16-CV-227
(Chief Judge Conner)

ORDER
AND NOW, this 24th day of May, 2017, upon consideration of the motion
(Doc. 48) in limine by defendant Wal-Mart Stores East, L.P. (“Wal-Mart”), seeking to
limit the testimony of plaintiff Kathleen Ann Collie’s (“Collie”) treating physicians
at trial, asserting that Collie previously indicated that her treating physicians would
be fact witnesses as opposed to expert witnesses, (Doc. 49 at 2-4), and that allowing
Collie’s physicians to provide expert testimony concerning “prognosis and
causation” would violate the Federal Rules of Civil Procedure because Collie did
not provide Wal-Mart with expert reports or disclose her physicians as expert
witnesses who would testify concerning prognosis or causation, (id. at 2-3 (citations
omitted)); see also FED. R. CIV. P. 26(a)(2), and further upon consideration of Collie’s
response, (Doc. 57), countering that she does not intend to present her treating
physicians as expert witnesses, (id. at 3), but does intend to elicit testimony
regarding causation of her injuries and her general prognosis, (id.), and the court
observing that the Third Circuit permits treating physicians to testify as lay
witnesses with respect to a patient’s diagnosis and treatment, see Pease v.

Lycoming Engines, No. 10-843, 2012 WL 162551, at *12 (M.D. Pa. Jan. 19, 2012)
(Conner, J.) (citations omitted), but that treating physicians’ testimony anent
prognosis and causation falls squarely within the scope of Federal Rule of Evidence
702, id. (citations omitted), and triggers notice and disclosure requirements under
the Federal Rules of Civil Procedure, see FED. R. CIV. P. 26(a)(2)(A), and further
observing that, although Collie’s treating physicians are not “retained or specially
employed” as experts by Collie and need not provide an expert report, FED. R. CIV.
P. 26(a)(2)(B), Collie must nonetheless disclose such witnesses and a summary of
their testimony to Wal-Mart, see FED. R. CIV. P. 26(a)(2)(C), and it appearing that
Collie did not disclose her treating physicians as required, prompting Wal-Mart’s
instant motion to exclude their testimony, but the court noting that excluding this
evidence would constitute an “extreme sanction,” In re TMI Litig., 193 F.3d 613, 721
(3d Cir. 1999) (quoting Dudley v. S. Jersey Metal, Inc., 555 F.2d 96, 99 (3d Cir. 1977)),
and that, to determine whether the court should impose this sanction, we must
consider: (1) the potential prejudice Wal-Mart would suffer if the court permitted
the physicians to testify concerning prognosis and causation; (2) Collie’s ability to
cure said prejudice; (3) the extent to which allowing the physicians to testify would
disrupt the efficiency of the pending trial; (4) any bad faith by Collie in failing to
disclose the content of her physicians’ testimony; and (5) the importance of the
evidence, see ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 298 (3d Cir. 2012)
(quoting Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 904-05
(3d Cir. 1977), overruled on other grounds by Goodman v. Lukens Steel Co., 777
F.2d 113 (3d Cir. 1985)), and the court first noting that neither party has alleged bad
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faith or that the testimony may disrupt the efficiency of the proceedings, and that
although Wal-Mart may suffer some slight prejudice given Collie’s delayed
disclosure, any such prejudice is nominal because Wal-Mart was on notice that
Collie’s physicians would testify, and also curable if Collie provides Wal-Mart with a
summary of Collie’s treating physicians’ expected testimony and the facts and
opinions contained therein in advance of trial, see FED. R. CIV. P. 26(a)(2)(C), it is
hereby ORDERED that:
1.

Wal-Mart’s motion (Doc. 48) in limine to exclude or limit the testimony
of Collie’s treating physicians is DENIED without prejudice to refile
same in the event Collie fails to comply with paragraph 2, infra.

2.

Collie shall provide Wal-Mart with a written disclosure identifying the
subject matter upon which Collie’s physicians will testify and a
summary of the facts and opinions to which they will testify pursuant
to Federal Rule of Civil Procedure 26(a)(2)(C) on or before June 15,
2017.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania