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Weeks-Anderegg v. United States

United States District Court, D. Nevada

March 16, 2018

FRANCES M. WEEKS-ANDEREGG, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          ORDER

          C.W. Hoffman, Jr. United States Magistrate Judge.

         Presently 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.

         Also 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.

         This 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.

         I. Motion to Strike

         Defendant 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.

         A. Experts

         1. Non-retained Experts

         Rule 26 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. 26(a)(2)(C).

         However, “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.

         Further, “[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 witnesses.

         Here, 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).

         Plaintiff 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 expert opinions.

         Plaintiff 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 ...


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