Luzier v. Pennsylvania Department of Labor and Industry et al

Filing 68

MEMORANDUM and ORDER denying 63 dft's Motion in Limine to exclude the testimony of Dr. Scott Mueller.Signed by Honorable James M. Munley on 10/2/08 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MARLENE M. LUZIER, Plaintiff : No. 3:06cv1590 : : (Judge Munley) : v. : : PENNSYLVANIA DEPARTMENT : OF LABOR AND INDUSTRY, : Defendant : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court is defendant's motion in limine to exclude the expert testimony of Scott Mueller, M.D. (Doc. 63). Having been fully briefed, the matter is rip e for disposition. B a c k g ro u n d T h is case arises out of plaintiff's employment with the Defendant Department. P la in tiff contends that defendant did not promote her to an available position b e c a u s e she is a woman. After the parties completed discovery in the case, d e fe n d a n ts filed a motion for summary judgment. The court granted the motion in p a rt and denied it in part. As a result of the court's disposition of that motion, two of p la in tiff's former supervisors in the Defendant Department were dismissed from the c a s e . Only the Defendant Department of Labor and Industry remains. In addition, th e court dismissed a number of plaintiff's claims; only plaintiff's claims of sex d is c rim in a tio n in the hiring decision and hostile environment in the workplace

p u rs u a n t to Title VII of the Civil Rights Act of 1964 remained. T h e court then scheduled a pre-trial conference in the case, ordering the p a r tie s to file motions in limine prior to the date of the conference. Defendant filed th e instant motion to exclude the testimony of Dr. Mueller. Plaintiff then filed a brief in opposition, bringing the case to its present posture. Jurisdiction A s this case is brought pursuant to 42 U.S.C. § 2000e, the court has ju ris d ic tio n pursuant to 28 U.S.C. § 1331 ("The district courts shall have original ju ris d ic tio n of all civil actions arising under the Constitution, laws, or treaties of the U n ited States."). D i s c u s s io n D e fe n d a n t argues that Dr. Mueller's testimony should be excluded because p la in tiff failed to comply with Federal Rule of Civil Procedure 26(a)(2), which requires th a t parties provide written reports from experts they intend to call at trial. The re p o rt, defendant contends, does not meet the requirements that an expert report p ro vid e the data and information on which that report is based. Dr. Mueller, d e fe n d a n t contends, also does not provide adequate information about his q u a lific a tio n s to serve as an expert. Finally, Dr. Mueller has not provided the d e fe n d a n t with a list of his publications, as required by the Federal Rules. Plaintiff re s p o n d s that Dr. Mueller has not been called as an expert witness. Instead, he is p la in tiff's treating physician and as such can be called as a witness without having to 2

p ro vid e an expert report. T h e court agrees with the plaintiff. Federal Rule of Civil Procedure 26(a)(2)(A) re q u ire s that parties disclose the identity of any witness who may testify at trial as an e xp e rt pursuant to Rule 702 of the Federal Rules of Evidence. See FED. R. EVID. 7 0 2 (establishing that "[i]f scientific technical, or other specialized knowledge will a s s ist the trier of fact to understand the evidence or to determine a fact in issue, a w itn e s s qualified as an expert by knowledge, skill, experience, training, or education, m a y testify thereto in the form of an opinion or otherwise, if (1) the testimony is b a s e d upon sufficient facts or data, (2) the testimony is the product of reliable p rin c ip le s and methods, and (3) the witness has applied the principles and methods re lia b ly to the facts of the case."). Rule 26(a)(2)(B) establishes that "with respect to a witness who is retained or specially employed to provide expert testimony in the c a s e or whose duties as an employee of the party regularly involve giving expert te s tim o n y ," the disclosure of that witness "will be accompanied by a written report p re p a re d and signed by the witness." (emphasis in original). By the terms of this ru le , then, a witness not specifically retained as an expert need not prepare a written re p o rt for disclosure. P la in tiff's answers to defendant's interrogatories, included as an exhibit to p la in tiff's response to the instant motion, indicate that Dr. Mueller has not been re ta in e d by the plaintiff to render an expert opinion. (See Exh. 3 to Plaintiff's Brief in O p p o s itio n to Defendant's Motion in Limine (Doc. 65-3)). Instead, Dr. Mueller has

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b e e n treating plaintiff since 2005, before she filed the instant action. (Id.). He in te n d s in his testimony to offer an opinion on plaintiff's medical condition and the c a u s e s of that opinion based on his treatment of her. (Id.). He has provided his tre a tm e n t records to the defendant in addition to a report on that treatment. He was n o t, therefore, retained as an expert for the purpose of litigation and does not meet th e requirements for disclosure under Rule 26(a)(2)(B). Dr. Mueller is plaintiff's tre a tin g physician and therefore can testify as to his treatment without providing an e xp e rt report. The Advisory Committe for the federal rules has also declared that "treating p h ys icia n s , can be deposed or called to testify at trial without the requirement of a w ritte n report." FED. R. CIV. P. 26(a)(2) (Advisory Committee Notes, Amendment 1 9 9 3 ). Since Dr. Mueller is plaintiff's treating physician, he squarely fits this e xc e p tio n . He has provided defendants with the records of his treatment, and he m a y testify at trial as an expert on matters related to that treatment without filing an e xp e rt report. See, e.g., Lamere v. New York State Office for the Aging, 223 F.R.D. 8 5 , 89 (N.D. N.Y. 2004) (holding that "a treating physician is an expert witness who c a n provide opinion testimony consistent with Rule 702, [and] must be identified for th e purpose of being subjected to further disclosure . . . but does not have to provide a written report before being deposed or testifying at trial."); Martin v. CSX T ra n s p o rta tio n , Inc., 215 F.R.D. 554, 557 (S.D. Ind. 2003) (finding that disclosure of e xp e rt reports was unnecessary since "the anticipated opinion testimony of"

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p la in tiffs ' doctors "was formulated during the examination and care of [plaintiff], not in a n tic ip a tio n of litigation."). A c c o rd in g ly , the defendant's motion in limine will be denied. An appropriate o r d e r follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MARLENE M. LUZIER, Plaintiff : No. 3:06cv1590 : : (Judge Munley) : v. : : PENNSYLVANIA DEPARTMENT : OF LABOR AND INDUSTRY, : Defendant : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 2nd day of October 2008, the defendant's motion in lim in e to exclude the testimony of Dr. Scott Mueller (Doc. 63) is hereby DENIED.

BY THE COURT:

s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court

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