Kazmierski v. Bonafide Safe & Lock Inc
Filing
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DECISION AND ORDER signed by Judge Lynn Adelman on 12/11/15 granting in part 16 Motion to Compel. The motion is granted to the extent that the plaintiff must supplement his Rule 26(a)(2)(C) disclosures within ten days of the date of this order. Further ordering the parties to confer regarding extension of the current deadlines re experts, discovery and dispositive motions. Within fifteen days of the date of this order, parties shall submit to the court a stipulation and proposed order reflecting their agreement on a revised schedule. If the parties cannot agree on a revised schedule, the defendant may file a motion to modify the schedule. (cc: all counsel) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL KAZMIERSKI,
Plaintiff,
v.
Case No. 15-C-0059
BONAFIDE SAFE & LOCK, INC.,
Defendant.
DECISION AND ORDER
In the present case, plaintiff Michael Kazmierski alleges that his former employer,
Bonafide Safe & Lock, Inc., terminated him in violation of the Americans with Disabilities
Act. He alleges that he suffers from depression, anxiety, a back condition, and sinusitis,
and that Bonafide failed to reasonably accommodate these conditions, which he contends
were disabilities within the meaning of the Act. Before me now is Bonafide’s motion to
compel the plaintiff to provide more information about the treating medical providers he
intends to call as witnesses. See Fed. R. Civ. P. 26(a)(2)(C).
Under the 2010 amendments to Federal Rule of Civil Procedure 26, certain expert
witnesses, including those who are not retained or specifically employed to provide expert
testimony in the case, do not have to provide a written report that contains the level of
detail required by Federal Rule of Civil Procedure 26(a)(2)(B). Instead, those witnesses
must provide a written disclosure that (1) identifies “the subject matter on which the witness
is expected to present evidence under Federal Rule of Evidence 702, 703, or 705"; and (2)
provides “a summary of the facts and opinions to which the witness is expected to testify.”
Fed. R. Civ. P. 26(a)(2)(C).
In the present case, the plaintiff disclosed four treating providers under Rule
26(a)(2)(C): his primary-care physician, his psychiatrist, his mental-health therapist, and
his chiropractor. The content of the written disclosure for each witness is substantially the
same. The following disclosure for Dr. Charles Running, the plaintiff’s primary-care
physician, is representative:
[A]ll testimony and medical opinions Dr. Running will provide are based on
his personal observations, tests, assessments, and treatment of Plaintiff and
Plaintiff’s relevant physical (back and sinusitis) and mental health (anxiety
and depression) conditions. Dr. Running will testify as to: (1) his personal
observations, tests, assessments, and treatments of Plaintiff; (2) the
contents of his medical records relating to Plaintiff; (3) his communications
and appointments with Plaintiff; (4) the medication(s) (including side effects)
he prescribed to Plaintiff for his physical and mental health conditions, if any;
(5) the medial documentation he/his office provided to Plaintiff; (6) his
medical opinion as to the physical and emotional effects of Plaintiff’s health
conditions as observed by him and/or as reported to him by Plaintiff and/or
the limitations Plaintiff’s physical and mental health conditions created and
imposed on Plaintiff as observed by him and/or as reported to him by
Plaintiff, including the probable frequency and duration of any episodes or
flare-ups associated with Plaintiff’s physical and mental health conditions, the
amount of leave from work needed to seek treatment for and/or recover from
any episodes or flare-ups associated with Plaintiff’s physical and mental
health conditions; and (7) to the factual allegations contained in the
Complaint of which he has personal knowledge.
ECF No. 20-1 at 1.
The defendant argues that the above disclosure does not contain a “summary of the
facts and opinions to which the witness is expected to testify” and that therefore the
disclosure does not comply with Rule 26(a)(2)(C). I agree. What the plaintiff has disclosed
is “the subject matter[s] on which the witness is expected to present evidence,” which is
only part of what Rule 26(a)(2)(C) requires. He has not identified any of the facts and
opinions to which the witness is expected to testify. For example, although the plaintiff
states that Dr. Running has opinions about “the physical and emotional effects of the
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Plaintiff’s health conditions”—i.e., states the general subject matter of his opinions—he
does not state what those opinions are. To constitute a “summary” of “facts and opinions,”
a disclosure must at least identify the opinions and some facts that relate to them, so that
the defendant can decide whether to take the physician’s deposition or to retain an expert
to rebut his opinions. See Hayes v. American Credit Acceptance, LLC, No. 13–2413–RDR,
2014 WL 3927277, at *3 (D. Kan. Aug. 12, 2014) (“At a minimum, the disclosure should
obviate the danger of unfair surprise regarding the factual and opinion testimony of the
nonretained expert.”); Pineda v. City and County of San Francisco, 280 F.R.D. 517, 523
(N.D. Cal. 2012) (written disclosure for nonretained expert must state the opinions to which
the expert is expected to testify).
A true summary of a treating physician’s expected testimony would look something
like this: “The witness is expected to opine that the plaintiff is unable to lift more than 50
pounds and will remain unable to do so for the indefinite future. This opinion is based on
the following facts: the witness diagnosed the plaintiff with three herniated discs in his
back, he observed during office visits that the plaintiff is experiencing symptoms that
prevent him from lifting more than 50 pounds, and he observed during office visits that the
plaintiff’s condition is not improving.” Contrary to the plaintiff’s argument, requiring such
a summary does not require a nonretained expert to provide the level of detail required for
retained expert reports under Rule 26(a)(2)(B). The summary does not, for example,
describe each of the plaintiff’s office visits and identify all of the observations and tests that
the physician performed before he diagnosed the plaintiff with his back condition, as would
be required for a report of a retained expert. See Fed . R. Civ. P. 26(a)(1)(B)(i)–(ii) (report
of retained expert must contain “a complete statement of all opinions the witness will
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express and the basis and reasons for them” and “the facts or data considered by the
witness in forming them”).
The plaintiff’s disclosure of his treating providers is deficient for additional reasons.
First, the plaintiff states that his physician (as well as other providers) will testify as to “the
medication(s) (including side effects) he prescribed to Plaintiff for his physical and mental
health conditions, if any.” This does not provide the defendant with any information about
what the expected testimony will be. The disclosure basically tells the defendant: “If this
physician prescribed the plaintiff any medications (and we’re not saying that he did) then
his testimony will be about those medications and their side effects.” Assuming that the
plaintiff intends to elicit testimony about medications and their side effects from a witness,
then a proper summary would identify the medications (or at least the type of medications,
such as “pain medication” or “anti-anxiety medication”) and the side effects about which
the witness will testify. If the witness did not prescribe any medications, then the disclosure
should not identify “medications, if any” as one of the subject matters of the witness’s
testimony.
Second, the disclosures are deficient to the extent that they state that each witness
will testify “to the factual allegations contained in the Complaint of which [he or she] has
personal knowledge.” Again, this does not tell the defendant anything useful. It is like
saying, “this witness will testify about the things he knows that are relevant to this case.”
To comply with Rule 26(a)(2)(C), the disclosure must identify the actual subject matter of
the testimony and then identify in summary fashion what the witness is expected to say
about that subject matter.
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For these reasons, I conclude that the plaintiff has not complied with Rule
26(a)(2)(C). The plaintiff will be compelled to provide the defendant with a supplemental
disclosure that not only accurately identifies the subject matters on which each witness is
expected to testify, but also summarizes the facts and opinions to which the witnesses are
expected to testify. See Fed. R. Civ. P. 37(a)(3)(A), (a)(4). The defendant also requests
that the current deadlines for disclosing expert witnesses, completing discovery, and filing
dispositive motions be extended so that it has time to review the plaintiff’s supplemental
disclosures and decide whether to depose the witnesses. I will grant that request. The
parties should confer with each other and attempt to agree on new deadlines.
Accordingly, IT IS ORDERED that the defendant’s motion to compel or bar plaintiff’s
experts is GRANTED IN PART. The motion is granted to the extent that the plaintiff must
supplement his Rule 26(a)(2)(C) disclosures within ten days of the date of this order.
IT IS FURTHER ORDERED that the parties shall confer regarding extension of the
current deadlines for disclosing expert witnesses, completing discovery, and filing
dispositive motions. Within fifteen days of the date of this order, the parties shall submit
to the court a stipulation and proposed order reflecting their agreement on a revised
schedule. If the parties cannot agree on a revised schedule, the defendant may file a
motion to modify the schedule.
Dated at Milwaukee, Wisconsin this 11th day of December, 2015.
s/ Lynn Adelman
_____________________________
LYNN ADELMAN
District Judge
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