United States District Court, D. Nevada
ORDER GRANTING DEFENDANT'S MOTION IN LIMINE AND GRANTING DEFENDANT'S MOTION FOR LEAVE TO FILE A REPLY (Dkt. Nos. 34, 39)
ANDREW P. GORDON, District Judge.
The parties are aware of the factual and procedural background of this case. As relevant here, the Government has moved in limine to preclude plaintiff Vicki Nihart's treating physicians from testifying as expert witnesses because Nihart did not disclose them as experts and she did not provide the requisite written report to the Government. The Government seeks to limit the treating physicians' testimony to their observations as percipient witnesses-"the conditions they actually observed and treated."
A treating physician may not testify about injury causation unless she is properly designated an expert witness.
A. Motion in Limine (Dkt. No. 34)
1. Rule 26(a)(2)
Rule 26(a)(2)(A) requires the disclosure of all expert witnesses. Expert witnesses who are not required to prepare a detailed written report under Rule 26(a)(2)(B), such as treating physicians, must prepare a limited written report under Rule 26(a)(2)(C). The Rule 26(a)(2)(C) report must state "the subject matter on which the witness is expected to present evidence... and... a summary of the facts and opinions to which the witness is expected to testify." This limited report requirement was added to Rule 26 in 2010; previously, experts who were not required to prepare a detailed report under Rule 26(a)(2)(B) either did not prepare any report at all or were compelled by courts to prepare a Rule 26(a)(2)(B) report anyway.
2. Rule 37(c)(1)
Rule 37(c)(1) states that if a party fails to identify a witness or provide information as required by Rule 26(a), the party is not allowed to use that information or witness to supply evidence at trial unless the failure was substantially justified or is harmless. The rule also states that "in addition to or instead of this sanction, " courts may order payment of reasonable expenses, including attorney's fees caused by the failure, and may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(v). The burden is upon the disclosing party to show that the failure to disclose information or witnesses was justified or harmless.
Rule 37(c)(1) does not require courts, in all instances, to exclude evidence as a sanction for a late disclosure that is neither justified nor harmless. The Ninth Circuit has identified five factors that courts may consider in deciding whether to impose Rule 37(c)(1)'s exclusion sanction: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the [other parties]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions."
Although a finding of willfulness or bad faith is not required in order to impose the evidence preclusion sanction, willfulness or bad faith is clearly a factor in deciding the appropriate level of sanction. However, if the sanction - such as excluding a witness - amounts to dismissal of a claim, the district court must "consider whether the claimed noncompliance involved willfulness, fault, or bad faith... and... the availability of lesser sanctions."
Nihart argues that her failure to comply with Rule 26(a)(2) was substantially justified and harmless, and that excluding all of her treating physicians would ...