United States District Court, D. Nevada
FRANCES M. WEEKS-ANDEREGG, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
Hoffman, Jr. United States Magistrate Judge.
before the Court is Defendant's motion to strike (ECF No.
34), filed on August 16, 2017. Plaintiff filed a response
(ECF No. 47) on September 18, 2017, and Defendant filed a
reply (ECF No. 49) on September 22, 2017. The Court also
considered certain documents which Defendant submitted for
in camera review. Due to a dispute over
Defendant's obligation to meet and confer before filing
the motion to strike, the parties also submitted a number of
briefs (ECF Nos. 43, 44, 45) which the Court considered.
before the Court is Defendant's motion to stay expert
disclosure deadline (ECF No. 36), filed on August 18, 2017.
Plaintiff filed a response (ECF No. 40), on September 6,
2017. Defendant did not file a reply.
case arises out of a car accident that occurred on January
24, 2011, involving Plaintiff and an employee of Defendant.
Due to Plaintiff's medical history, and involvement in
other car accidents, discovery in this case has been
extensive. On July 18 and 19, 2017, Plaintiff served three
sets of discovery documents on Defendant (“The July
Disclosures”). The first set contained Plaintiff's
initial designation of retained expert and non-retained
experts, and a supplement to her list of witnesses and
pre-trial disclosures. The second and third set contained a
supplement to the first set, and errata. Subsequent to these
disclosures, Defendant brought the present motions.
Motion to Strike
moves to strike the July Disclosures, arguing that Plaintiff
did not properly disclose her non-retained medical experts,
retained experts, or damages. Plaintiff opposes the motion,
arguing that the July Disclosures complied with Rule 26, and
that any failure to properly disclose was harmless and not
made in bad faith.
of the Federal Rules of Civil Procedure requires parties to
disclose the identity of any expert witnesses. The rules
further establish two different classes of experts who may
provide testimony under Federal Rules of Evidence 702, 703,
or 705: (1) those who are retained or specially employed to
give expert opinion testimony in a case, and (2) those who
are not retained or specially employed but nevertheless may
provide expert testimony. Specially retained experts are
required to comply with Rule 26(a)(2)(B) report requirements.
In recognition of the fact that treating physicians are
generally not retained for the purposes of providing expert
testimony, they are not subject to the same written report
requirement of specially retained experts. Goodman v.
Staples The Office Superstore, LLC, 644 F.3d 817, 826
(9th Cir. 2011). Instead, parties seeking to rely on an
expert who is not specially retained must provide a
disclosure which states “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.” Fed.R.Civ.P.
“a treating physician is only exempt from Rule
26(a)(2)(B)'s written report requirement to the extent
that his opinions were formed during the course of
treatment.” Goodman, 644 F.3d, at 826. When a
party attempts to elicit opinions from a treating physician
that go beyond the confines of the treatment rendered, such
witnesses fall outside the scope of the “treating
physician” exception insofar as their additional
opinions are concerned, and they are held to the standard of
Rule 26(a)(2)(B). Id.
“[w]hen a party fails to make the disclosures required
by Rule 26(a), the party is not allowed to use the witness to
supply evidence at trial unless it establishes that the
failure was substantially justified or is harmless.”
Id. The rationale for such exclusion is made clear
in the Advisory Committee Notes to the 1993 amendments to
Rule 26, which indicate that the disclosure requirements for
expert testimony were intended to allow opposing parties to
have a reasonable opportunity to prepare for effective
cross-examination and arrange for expert testimony from other
Defendant argues that the July Disclosures offered only
non-specific and formulaic description for each of the
treating physicians, insufficient to comply with
Plaintiff's duties under Rule 26(a)(2)(C). In
Plaintiff's response, she articulates the standard that
non-retained witness disclosures must meet, but does not cite
any language from the July Disclosures that would meet that
standard. The disclosures appear to contain only boilerplate
language with no specific notification of what the treating
physicians will testify about. The Court finds that
Plaintiff's disclosure of her treating physicians did not
contain a meaningful summary as required by Rule 26(a)(2)(C).
argues in the alternative that the treating physicians will
not offer their opinions outside of the scope of their
treatment, and so are not expert witnesses. To the extent
that the treating physicians will testify as percipient
witnesses, the Court agrees that they are not experts, and
need not comply with Rule 26(a)(2)(C). Plaintiff's
treating physicians may therefore testify as to what they saw
and did during the course of treatment, but may not offer
also requests that she be allowed to supplement or correct
any disclosure that did not comply with Rule 26(a)(2)(C).
However, since the deadline for disclosure of Plaintiff's
expert witnesses was July 19, 2017 (ECF No. 33), an extension
of that deadline must be supported by a showing of both good
cause and excusable neglect. Local Rule 26-4. Plaintiff does
not argue that she missed the deadline for ...