United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
case is before the undersigned pursuant to 28 U.S.C. §
636(c), Rule 73(b) of the Federal Rules of Civil Procedure,
and the consent of the parties, for all further proceedings,
including entry of judgment [Doc. 17].
before the Court is the Defendants' Motion to Strike
Plaintiff's “Expert Disclosures” as
Insufficient and Exclude the Listed Individuals from
Testifying at the Trial of this Cause [Doc. 31]. Accordingly,
for the reasons more fully explained below, the Court finds
the Defendants' Motion [Doc. 31] not well-taken, and it
POSITIONS OF THE PARTIES
Defendants' Motion states that the Plaintiff's expert
disclosures fail to comply with Federal Rule of Civil
Procedure 26(a)(2). Specifically, the Motion explains that
the Plaintiff did not provide the expert reports as required
by Rule 26(a)(2)(B). Further, the Defendants argue that if
the Plaintiff meant to use the individuals as treating
physicians, the disclosures fail pursuant to Rule
26(a)(2)(B)(C). The Defendants state that the
Plaintiff's disclosures ignore subsections (i) and (ii)
of Rule 26(a)(2)(C).
Plaintiff filed a Response [Doc. 33] to the Motion stating
that his disclosures are consistent with the Scheduling Order
and that he did not include any reports with his disclosures
because he was not required to include any reports.
Rule of Civil Procedure 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).
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
(i) the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or
(ii) a summary of the facts and opinions to which the witness
is expected to testify.
(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-cv-133, 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).
instant matter, the Plaintiff states that he disclosed
treating physicians, which is made clear by the statement,
“Treating Physicians” in the disclosures.
See [Doc. 32-1]. In his disclosures, however, he
only provides the name, address, and telephone number of the
treating physicians. Accordingly, the Court finds that the
Plaintiff's disclosures do not comport with Rule
Rule Civil Procedure 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 ...