Cosby v. Claiborne County Board of Education et al (RLJ2)

Filing 36

MEMORANDUM AND ORDER: Defendants' Motion to Exclude Expert Testimony 28 and Plaintiff's Motion to Enlarge Time to Respond to Defendant's Motion to Exclude Expert Testimony 29 are GRANTED. Signed by Magistrate Judge H. Bruce Guyton on 7/2/18. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
MARTY A. COSBY,
Plaintiff,
v.
CLAIBORNE COUNTY BOARD OF
EDUCATION, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 3:17-CV-278-RLJ-HBG

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is Defendants’ Motion to Exclude Expert Testimony [Doc. 28]
(“Motion to Exclude”) and Plaintiff’s Motion to Enlarge Time to Respond to Defendant’s Motion
to Exclude Expert Testimony [Doc. 29] (“Motion to Enlarge Time”). The Motions are ripe and
ready for adjudication. Accordingly, for the reasons further explained below, the Court GRANTS
both Motions [Docs. 28, 29].
I.

BACKGROUND
The Complaint [Doc. 1-2] was removed to this Court on June 26, 2017. The Complaint

alleges that Plaintiff was employed with Defendant Claiborne County Board of Education for
thirty-four (34) years. [Id. at ¶ 4]. The Complaint states that on May 18, 2015, Plaintiff was
subjected to harassment by Defendant Connie Holdway when she transferred Plaintiff from Forge
Ridge Elementary School to TNT Primary School. [Id. at ¶ 8]. In addition, another Defendant,
Sam Owens, told certain individuals in the Claiborne County community that he wanted to
personally humiliate Plaintiff for Plaintiff’s support of a specific candidate for county mayor. [Id.

at ¶ 9]. The Complaint continues that Defendants Owens and Holdway, for their own personal
and political agenda, attempted to place Plaintiff in a false light before his fellow workers, students,
family, and others. [Id. at ¶ 10]. Defendant Owens threated retaliation with respect to Plaintiff’s
job for having supported a different candidate. [Id. at ¶ 13]. Further, Plaintiff alleges that upon
his transfer to TNT Primary School, Defendants discriminated against him because of his age and
deprived him of equal opportunity by replacing his position as a principal at Forge Ridge
Elementary School with an individually substantially younger. [Id. at ¶ 20]. Plaintiff alleges that
he has sustained damages, including personal injuries, humiliation, embarrassment, aggravation of
preexisting anxiety, aggravation of his hypertension, lack of sleep, and emotional distress. [Id. at
¶ 22].
The instant dispute relates to expert disclosures under Federal Rule of Civil Procedure
26(a)(2).
II.

POSITIONS OF THE PARTIES
The Court will only summarize Defendants’ Motion to Exclude because no opposition was

filed with respect to Plaintiff’s Motion to Enlarge Time.
In their Motion [Doc. 28], Defendants state that Plaintiffs submitted Exhibit 1 [Doc. 28-1]
in an attempt to comply with the mandates of the Federal Rules of Civil Procedure that govern
expert witness disclosures. Defendants argue that it is impossible for them to determine if
Plaintiff’s disclosures are meant to be in compliance with Rule 26(a)(2)(B) or (C) but that the
disclosures are deficient under either provision. Defendants aver that Plaintiff’s attorney’s recital
of Plaintiff’s alleged medical issues/conditions is not nearly enough to satisfy the requirements of
Rule 26. Defendants state that given the litany of actions Plaintiff has pled in this case and the

2

types of medical issues presented, Plaintiff must present expert testimony where the medical
providers themselves establish some kind of connection with the challenged actions.1
Plaintiff filed a Response [Doc. 32], arguing that he identified Dr. John Michael Robertson,
his primary care physician, concerning Plaintiff’s treatment for aggravation of hypertension and
preexisting anxiety disorder. In addition, Plaintiff states that he identified Dr. John B. Robertson,
a “psychiatric,” to whom Plaintiff was referred to by Dr. John Michael Robertson. Plaintiff states
that his responses to Defendants’ interrogatories were submitted to the state trial court prior to the
removal of this case and that in the interrogatories, Plaintiff disclosed Dr. John Michael Robertson
as his primary care physician, as well as Dr. John B. Robertson. Plaintiff states that these
physicians are not retained or specially employed experts but are merely expected to testify about
their treatment of Plaintiff. Plaintiff argues that pursuant to Rule 26(a)(2)(C), the disclosure must
state the subject matter on which the expert is expected to present evidence and a summary of facts
and opinions to which the witness is expected to testify. Plaintiff states that such information has
been provided to Defendants and that Defendants have been provided access to all Plaintiff’s
medical records.
Defendants filed a Reply [Doc. 34], asserting that they have “no objection to Plaintiff[]
producing medical practitioners to testify at the trial of this cause only about their observations
concerning Plaintiff’s alleged medical condition.” Further, Defendants state, “[T]o the extent
Plaintiff desires to go beyond the merely factual testimony, [Defendants] object and assert Plaintiff
has failed to comply” with Rule 26 concerning the disclosure of expert testimony.

1

Defendants request that their Motion for Summary Judgment be granted. The Court
believes this to be a typographical error. In any event, the undersigned issues no opinion on
Defendants’ Motion for Summary Judgment.
3

III.

ANALYSIS
As an initial matter, with respect to Plaintiff’s Motion to Enlarge [Doc. 29], it is unclear

how much time Plaintiff sought to respond to Defendants’ Motion to Exclude. The Motion to
Exclude was filed on May 23, 2018, meaning that Plaintiff’s response was due on or before June
6, 2018. See Fed. R. Civ. P. 6 (explaining how to compute time) and E.D. Tenn. L.R. 7.1
(explaining that responses are due fourteen (14) days after service of the opening brief). Plaintiff’s
Motion “prays for an additional seven (7) days from, and including, May 29, 2018, in which to
make further response to Plaintiff’s disclosures as well as further response to Defendants’
Motions.” [Doc. 29 at 1]. Plaintiff then filed his Response [Doc. 32] on June 19, 2018. In any
event, the Court GRANTS Plaintiff’s Motion [Doc. 29] because Defendants did not file an
objection, see E.D. Tenn. L.R. 7.1, (explaining that “[f]ailure to respond to a motion may be
deemed a waiver of any opposition to the relief sought”), and the Court has considered Plaintiff’s
Response to Defendants’ Motion to Exclude.
The Court will now turn to Defendants’ Motion to Exclude. The Court finds it helpful to
begin with the requirements as set forth in Rule 26(a)(2). Specifically, Rule 26(a)(2)(B) provides,
in relevant part, that expert witness disclosures “must be accompanied by a written report—
prepared and signed by the witness—if the witness is one retained or specially employed to provide
expert testimony.” Generally, “a treating physician is not required to submit an expert report or
disclosure under Rule 26(a)(2)(B) because a treating physician is not ‘retained or specially
employed to provide expert testimony in the case.’” Taylor v. U.S., No. 2:04-cv-128, 2005 WL
5984597, at *1 (E.D. Tenn. Nov. 23, 2005) (quoting Rule 26(a)(2)(B)). Rule 26(a)(2)(C),
however, still requires summary disclosures of the facts and opinions to be offered by such expert
witnesses even if they are not required to provide the detailed reports under Rule 26(a)(2)(B).

4

Specifically, Rule 26(a)(2)(C) states:
Witnesses Who Do Not Provide a Written Report. Unless otherwise
stipulated or ordered by the court, if the witness is not required to
provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is
expected to testify.
Subsection (C) “appears to speak directly to experts, such as treating physicians, whose
testimony often blurs the line between fact and opinion.” Call v. City of Riverside, No. 3:13-cv133, 2014 WL 2048194, at *3 (S.D. Ohio May 19, 2014) (quoting Coleman v. Am. Family Mut.
Ins. Co., 274 F.R.S. 641, 645 (N.D. Ind. 2011)). Thus, while treating physicians are not required
to provide an expert report pursuant to Rule 26(a)(2)(B), the party offering the treating physician’s
opinion must provide the disclosures outlined in Rule 26(a)(2)(C).
The Court has reviewed Plaintiff’s Expert Witness Disclosures [Doc. 28-1] and finds that
the disclosures are not sufficient under Rule 26(a)(2)(C). With respect to Dr. John B. Robertson,
Plaintiff’s disclosure states that Dr. John B. Roberston has not rendered his final report on the
subject matter on which he is expected to testify. [Doc. 28-1]. The disclosure continues that it is
anticipated that Dr. John B. Robertson will testify that Plaintiff suffers from major depression, a
general anxiety disorder, arthritis, and hypertension. It further states that Defendants have
obtained Dr. John B. Robertson’s records.
As explained above, Rule 26(a)(2)(C)(i) requires that the disclosure provides the subject
matter on which the witness is expected to testify. While Plaintiff argues that both physicians were
identified in his responses to interrogatories and Defendants obtained the medical records, the
Court finds that such does not satisfy Rule 26(a)(2)(C). Gleed v. AT&T Servs., Inc., No. 13-12479,

5

2016 WL 1451532, at *4 (E.D. Mich. Apr. 12, 2016) (“The Court finds that simply identifying a
witness in an interrogatory and/or producing medical records does not meet the disclosure
requirements of Rule 26(a)(2)(C).”).

Accordingly, with respect to Dr. John B. Robertson,

Plaintiff’s disclosure is deficient.
With respect to Dr. John M. Robertson’s disclosure, it states that Plaintiff has consulted
with Dr. John M. Robertson and that it is anticipated that Dr. John M. Robertson will testify that
Plaintiff has suffered from panic attacks, depression, and anxiety, as well as post-traumatic stress
disorder. For similar reasons as above, this disclosure is also deficient.
Given that Plaintiff has not complied with the disclosure requirements, the Court must turn
to Federal Rule Civil Procedure 37(c)(1). Specifically, Rule 37(c)(1) provides, “If a party fails to
provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed
to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” Courts have explained, “Federal Rule of
Civil Procedure 37(c)(1) requires absolute compliance with Rule 26(a); that is, it ‘mandates that a
trial court punish a party for discovery violations in connection with Rule 26 unless the violation
was harmless or is substantially justified.’” Hunt v. Hadden, 127 F. Supp. 3d 780, 789 (E.D. Mich.
2015), aff'd, 665 F. App'x 435 (6th Cir. 2016) (quoting Roberts ex rel. Johnson v. Galen of
Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003)) (other citations omitted). Further, courts have
explained that “exclusion of expert testimony is the ‘standard sanction’ for a violation of Rule 26.”
Id. (citing Samos Imex Corp. v. Nextel Communications, Inc., 194 F.3d 301, 305 (1st Cir. 1999)).
The burden is on the potentially sanctioned party to prove harmlessness. Id. (citing Roberts ex rel.
Johnson, 325 F.3d at 782).

6

In the present matter, Plaintiff has not sufficiently argued that the violation is substantially
justified or harmless. Instead, Plaintiff argues that Rule 26(a)(2)(C) requires the disclosure to
provide the subject matter of the testimony and a summary of the witness’s facts and opinions.
Plaintiff continues, “That information has been previously provided to the Defendant and the
Defendant has been provided access to all of Plaintiff’s medical records.” [Doc. 32 at 2]. The
Court finds, however, that the information was not provided, as Plaintiff acknowledged in his
disclosures. See [Doc. 28-1] (“Dr. John B. Robertson has not rendered a final report on the subject
matter on which the expert is expected to testify . . .,” and Dr. John M. Robertson’s disclosure is
similarly deficient). Further, as discussed above, the fact that Defendants have access to Plaintiff’s
medical records is not sufficient, and the Court finds that Defendants’ access to the medical records
does not constitute harmlessness under Rule 37(c)(1). Otherwise, the requirement to provide a
disclosure of Rule 26(a)(2)(C) would be eviscerated. Accordingly, the Court finds that Plaintiff
has not demonstrated that the violation is substantially justified or harmless.
As Defendants explained in their Reply, they “have no objection to Plaintiff[] producing
medical practitioners to testify at trial of this cause only about their observations concerning
Plaintiff’s alleged medical condition.” [Doc. 34]. They further state, “[T]o the extent Plaintiff
desires to go beyond the merely factual testimony, [Defendants] object . . .” [Id.]. Accordingly,
the Court grants Defendants’ Motion to Exclude [Doc. 28] to the extent that Plaintiff’s treating
physicians may testify only as to the facts of Plaintiff’s course of treatment and their factual
observations concerning Plaintiff’s alleged medical conditions.

7

IV.

CONCLUSION
Accordingly, for the reasons explained above, Defendants’ Motion to Exclude Expert

Testimony [Doc. 28] and Plaintiff’s Motion to Enlarge Time to Respond to Defendant’s Motion
to Exclude Expert Testimony [Doc. 29] are GRANTED.
IT IS SO ORDERED.
ENTER:

United States Magistrate Judge

8