United States District Court, D. Nevada
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT (ECF NOS.
P. GORDON, UNITED STATES DISTRICT JUDGE.
Best Buy Co., Inc. moves for summary judgment, arguing that
plaintiff Barbie Morgan cannot show the causation element of
her negligence claim because she has no expert to testify as
to causation. “A claim for negligence in Nevada
requires that the plaintiff satisfy four elements: (1) an
existing duty of care, (2) breach, (3) legal causation, and
(4) damages.” Turner v. Mandalay Sports Entm't,
LLC, 180 P.3d 1172, 1175 (Nev. 2008) (en banc).
“Causation may be sufficiently established through
circumstantial evidence.” Huffey v. Phelps,
No. 50343, 281 P.3d 1183, 2009 WL 1491510, at *2 (Nev. 2009).
an expert is often required to prove causation of bodily
injuries, that is not always the case. An expert is required
when “the cause of injuries is not immediately
apparent, ” or when the defendant has challenged
causation with medical expert testimony. Lord v.
State, 806 P.2d 548, 551 (Nev. 1991); see also
Huffey, 2009 WL 1491510, at *2 (“Had Phelps
challenged the causation of Huffey's injuries with
medical expert testimony or had the causation of Huffey's
injuries been beyond the knowledge of the average person,
expert opinion testimony may have been warranted.”);
Layton v. Yankee Caithness Joint Venture, L.P., 774
F.Supp. 576, 580 (D. Nev. 1991) (stating that “where a
question of fact is beyond the comprehension of the ordinary
lay person, expert testimony is required to prove that
fact”). But “expert causation testimony is not
required where ‘the connection is a kind that would be
obvious to laymen, such as a broken leg from being struck by
an automobile.'” Alfaro v. D. Las Vegas,
Inc., No. 2:15-cv-02190- MMD-PAL, 2016 WL 4473421, at
*15 (D. Nev. Aug. 24, 2016) (quoting Brooks v. Union Pac.
R. Co., 620 F.3d 896, 899 (8th Cir. 2010)).
there is evidence from which a reasonable jury could find
injuries without the need for expert testimony. There is no
dispute that a television fell onto Morgan's ankle. Best
Buy employee Bryan Hirschfield stated that he observed
Morgan's ankle start swelling approximately fifteen
minutes after the accident and Best Buy employees then called
for an ambulance. ECF No. 20-1 at 26. Morgan testified that
she felt pain in her ankle, knee, and back, and that her
ankle swelled and bruised. ECF No. 32 at 131, 152-54. It is
not outside a layman's experience that a television
falling on someone's ankle would cause bruising,
swelling, and pain. Additionally, at the hearing on this
motion, Best Buy conceded that its own expert, Dr. Wang,
attributed some of Morgan's injuries to the Best Buy
incident. Consequently, I deny Best Buy's motion because
there is some evidence from which a jury could find the
television falling on Morgan caused injuries.
being said, the parties dispute which of Morgan's
injuries and later medical treatments are causally connected
to the Best Buy incident. The parties have not given me
sufficient evidence or argument to rule on causation as to
any particular type of injury or related medical treatment.
The parties have not provided any of the medical records or
Dr. Wang's report.
have provided the report of Morgan's expert, Dr. Byers,
but she offers no admissible causation opinion. See
ECF Nos. 25-1; 31 at 66-70. Although Dr. Byers opines that
the Best Buy incident “exacerbated the gravity of
[Morgan's] prior injuries, ” she does not identify
which prior injuries were exacerbated, by how much, or how
long that prolonged Morgan's recovery. ECF No. 25-1 at 3.
Nor does Dr. Byers link any particular medical treatment to
the Best Buy incident as opposed to Morgan's pre-existing
conditions. Dr. Byers' opinion is too vague to be helpful
to the trier of fact. I therefore exclude Dr. Byers from
testifying at trial. See Fed. R. Evid. 702(a).
hearing, Morgan suggested her treating physicians would
testify about causation. The parties disputed whether Morgan
had adequately identified the treating physicians and whether
they in fact opined about causation in their treatment
records. The parties have not provided sufficient information
for me to rule on those questions. I therefore will resolve
those issues through motions in limine and objections at
trial. But to give the parties guidance for both the upcoming
settlement conference and any motion practice, the following
legal principles govern that inquiry.
treating physicians are not subject to Federal Rule of Civil
Procedure 26(a)(2)(B)'s written report requirement
because they are “percipient witness[es] of the
treatment . . . rendered” rather than retained or
specially employed experts. Goodman v. Staples The Office
Superstore, LLC, 644 F.3d 817, 824 (9th Cir. 2011). But
a treating physician is exempt from the written report
requirement only “to the extent that his opinions were
formed during the course of treatment.” Id. at
826; see also Ghiorzi v. Whitewater Pools & Spas,
Inc., No. 2:10-cv-01778-JCM-PAL, 2011 WL 5190804, at *3
(D. Nev. Oct. 28, 2011) (stating a written report is not
required where the “treating physician's opinions
are formed during the course of treatment”).
an expert report is “required when a treating provider
is used to render opinions that are not reached during the
course of treatment.” Alfaro, 2016 WL 4473421,
at *9. Evidence that the treating physician formed his or her
opinion based on a review of information provided by the
plaintiff's attorney that the physician did not review
during the course of treatment will subject the physician to
Rule 26(a)(2)(B)'s written report requirement for those
opinions. Goodman, 644 F.3d at 826; see also
Alfaro, 2016 WL 4473421, at *13 (“To the extent
any of the providers are relied upon to testify about
information not acquired or relied upon in treating
Plaintiffs, a Rule 26(a)(2)(B) report was required for those
treating physicians may be exempt from Rule 26(a)(2)(B)'s
written report requirement, they are subject to Rule
26(a)(2)(C)'s requirement to disclose “(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.” Merely identifying “the
subject matter on which the witness is expected to testify is
insufficient to comply with the summary of facts and opinions
requirement of Rule 26(a)(2)(C).” Flonnes v. Prop.
& Cas. Ins. Co. of Hartford, No.
2:12-cv-01065-APG-CWH, 2013 WL 2285224, at *5 (D. Nev. May
26(a)(2)(B) and Rule 26(a)(2)(C) share the same common
purpose: to prevent unfair surprise and to conserve
resources.” Alfaro, 2016 WL 4473421, at *14. A
defendant in a negligence case is “entitled to an
expert disclosure from a non-retained expert, including
treating providers, that specifies what opinions will be
offered, and the factual bases for those opinions.”
Id. Although Rule 26(a)(2)(C) requires
“considerably less” than Rule 26(a)(2)(B),
“the disclosure must contain sufficient information to
allow opposing counsel to make an informed decision on which,
if any, of the treating providers should be deposed,
determine whether to retain experts, and conduct a meaningful
deposition or cross examination of the witness at
party does not comply with its Rule 26(a) obligations, that
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.” Fed.R.Civ.P. 37(c)(1). The party facing
exclusion of evidence bears the burden of showing that the
failure to disclose was substantially justified or is
harmless. Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1107 (9th Cir. 2001). To determine
whether a violation is substantially justified or harmless, I
consider factors such as: “(1) prejudice or surprise to
the party against whom the evidence is offered; (2) the
ability of that party to cure the prejudice; (3) the
likelihood of disruption of the trial; and (4) bad faith or
willfulness involved in not timely disclosing the
evidence.” Calvert v. Ellis, No.
2:13-cv-00464-APG-NJK, 2014 WL 3897949, at *4 (D. Nev. Aug.
8, 2014). Further, failure to comply with Rule 26(a) does not
automatically require me to exclude the evidence as a
sanction. Jackson v. United Artists Theatre Circuit,
Inc., 278 F.R.D. 586, 594 (D. Nev. 2011). Rather, I have
broad discretion to issue sanctions under Rule 37(c)(1).
Yeti by Molly, Ltd., 259 F.3d at 1106.
I do not have adequate information before me, I make no
ruling on whether Morgan adequately disclosed her treating
physicians and complied with her obligations under Rule
26(a)(2)(C), or, if she did not, whether the treating
physicians must be excluded or limited. I rule only that
there is evidence from which a reasonable jury could find at
least some injuries were caused by the television falling on
Morgan's ankle, so I must deny Best Buy's motion. I
also exclude Dr. Byers from testifying.
THEREFORE ORDERED that defendant Best Buy Co., Inc.'s
motions for summary judgment ...