Opinion
8:98CV5
February 5, 1999.
ORDER
This matter is before me pursuant to 28 U.S.C. § 636 and the general order of referral on the motion of defendant Farmers Union Co-Operative Association (Co-Op) to compel plaintiff to properly disclose expert witnesses (#31). Movant has complied with the requirements of NELR 7.1(i). Plaintiff's attorney has filed certificates of service (#34 and #35) indicating that he supplied responses to defense counsel; however, the court has not received a brief in opposition to the motion as required by NELR 7.1(b).See generally Local Rule 7.1 (Motion Practice).
The complaint alleges that plaintiff was a truck driver employed by defendant Dawson Transport Service, Inc. (Dawson). On December 9, 1994 he was delivering approximately 8,000 gallons of gasoline to Co-Op and was injured by an explosion and fire while unloading the gasoline. Plaintiff alleges that Co-Op was negligent in failing to equip its fill pipe with a proper fill pipe connection; failing to warn plaintiff of the danger of dislodgement of the fill nozzle; and failing to provide plaintiff with any means to safely unload gasoline into Co-Op's underground storage tank. Dawson has been named as a defendant pursuant to Neb. Rev. Stat. § 48-118 because of its payment of worker's compensation benefits to the plaintiff.
Under the current progression order, plaintiff's expert witness designations were due December 1, 1998. Exhibit A to the Motion to Compel shows that plaintiff designated the following expert witnesses on November 19, 1998:
Jerry Gilmore, an expert fire investigator, who "will testify with regard to his report." Plaintiff's disclosure states that Gilmore's report was previously furnished to the defendant. Gilmore's curriculum vitae very briefly outlines his educational background, certifications, memberships, and past experience. Apparently, no information has been provided concerning the dates of Mr. Gilmore's various degrees and certifications or whether Mr. Gilmore has testified as an expert witness in other cases.Paulette K. Freeman, a vocational rehabilitation counselor, who will testify regarding work plaintiff is unable to do and the effects of his condition. Plaintiff's disclosure states that Freeman's report was previously furnished to the defendant. Ms. Freeman's curriculum vitae describes in detail her educational background and the nature of her specialized experience, but does not contain all the information required by Rule 26(a)(2)(B).
Plaintiff also designated 11 medical doctors who he may call to testify as to their treatment of plaintiff and his injuries. Plaintiff states that all their records and reports were previously furnished to the defendant.
In a supplemental disclosure served December 1, 1998 (Exhibit B attached to defendant's brief), plaintiff designated six more medical doctors to testify as to their treatment of plaintiff and his injuries, stating that "all records and reports will be furnished to Defendant when received from the expert."
LEGAL ANALYSIS
The Order Setting Schedule for the Progression of the Case specifically addressed the disclosure of expert witnesses (#14, 10). The parties were advised that each was required to serve "the statement required by Fed.R.Civ.P. 26(a)(2) regarding each expert witness it expects to call to testify at trial. . . ." Paragraph 10, footnote 1, of the progression order advises that, in general, "a treating physician shall not be deemed to be `retained or specially employed to provide expert testimony in a case' pursuant to [Rule] 26(a)(2)(B), but a treating physician must be identified pursuant to [Rule] 26(a)(2)(A)."
I. General Rule for Expert Witnesses
Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure provides that expert reports must be prepared and signed by the expert witness and must contain the following:
The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Failure to comply with Rule 26(a)(2) may preclude a party from using expert testimony at trial which was neither timely nor fully disclosed. See Fed.R.Civ.P. 37; Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir.), cert. denied, 516 U.S. 822 (1995); Bonin v. Chadron Comm. Hosp., 163 F.R.D. 565 (D.Neb. 1995).
The rationale behind Rule 26(a)(2)(B) was discussed at length inSullivan v. Glock, Inc., 175 F.R.D. 497 (D.Md. 1997). Regarding the written report required of retained experts, the court observed:
When one understands the purpose of the Rule 26(a)(2)(B) disclosures, it is easier to appreciate why complete disclosures are required. The purpose of these disclosures is to provide "information regarding expert testimony sufficiently in advance of trial that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses." Commentary to Rule 26(a), 146 F.R.D. 401, 633 (1993) (emphasis added). Cross examination of an expert generally involves three components. During the court's preliminary assessment of whether the expert will be permitted to offer opinion testimony, pursuant to Fed.R.Evid. 104(a), the focus is whether the expert meets the requirements of evidence rule 702 to give such testimony. If so qualified, then, pursuant to Fed.R.Evid. 611(b), the focus shifts to the opinions expressed and the support therefor, as well as matters affecting the credibility of the expert. When one keeps these three functions of cross examination of experts in mind it is easier to appreciate why all of the information required by the Rule 26(a)(2)(B) disclosure is important. All too often lawyers focus almost exclusively on disclosing the expert's opinions, the supporting facts, data, and bases, and neglect their additional obligation to disclose the witness's qualifications, publications, compensation, and listing of prior testimony. This information, however, bears directly on whether the expert is qualified under Fed.R.Evid. 702, and commonly provides a factual basis to attack the credibility of the expert. Thus, a Rule 26(a)(2)(B) disclosure which does not completely address each of these elements may be lacking in a material respect.Id. at 503 n. 11. In light of these considerations, the Sullivan court concluded, "As a rule of thumb, if the failure to comply with the required disclosure involves a material aspect of the expert's testimony, and if the opposing party can show prejudice in connection with the lack of disclosure, then the opinion of the expert should be excluded, in whole or in part, at trial." Id.
The Eighth Circuit appears to have adopted this position inSylla-Sawdon v. Uniroyal Goodrich Tire Co., a products liability suit concerning an automobile tire. In Sylla-Sawdon, the plaintiff designated as an expert witness H. Boulter Kelsey, Jr., a mechanical engineer. Kelsey supplied his curriculum vitae and submitted a short affidavit in response to the district court's scheduling order. Kelsey's affidavit and curriculum vitae did not, however, divulge any direct professional experience in tire manufacture or tire failure analysis. Although the defendant notified plaintiff that it did not believe Kelsey's summary affidavit complied with the scheduling order, Kelsey did not supplement the affidavit. Defendant elected to depose Kelsey, who testified that he did not consider himself an expert in rubber chemistry, tire design, or the tire manufacturing process. Kelsey testified that he did not have any formal training in tire failure analysis and that his employment history bears no relationship to the knowledge he relied upon to reach his opinion in this case. Instead, Kelsey explained that his knowledge of tire failures arises from his many years of experience as a competitive race car driver, combined with his mechanical engineering background. Id. at 282.
Defendant filed a motion in limine to exclude or limit Kelsey's testimony a trial. After reading Kelsey's deposition, the district court sustained the motion in limine in part and overruled it in part, holding that Kelsey could testify, but only as to the limited content of his affidavit and "nothing else."
The district court observed that Kelsey had "taken rather lightly" the court's Scheduling Order and remarked that Kelsey was a "very weak expert." In response to Uniroyal's request for clarification of the ruling, the court stated:
[T]hat doesn't mean to say that I am going to qualify him as an expert. You can still object when [plaintiff's counsel] goes through his testimony whether he can qualify him in front of the jury as an expert. I am not ruling on that, I am ruling on what he can testify to, if he gets qualified. You have got to qualify him as an expert. . . .Id. at 282-83. At trial, the district court refused to qualify Kelsey as an expert and Kelsey was not permitted to give his opinion that the tire failed because of a manufacturing defect. In denying Sylla-Sawdon's motion for a new trial on this issue, the district court ruled that plaintiff had "flagrantly disregarded" the court's scheduling order. Sylla-Sawdon argued on appeal that the district court's trial rulings constituted an abuse of discretion. The Eighth Circuit flatly rejected this argument:
Sylla-Sawdon urges us to reverse and remand this case for a new trial so that another jury may have the benefit of Kelsey's opinion in deciding this case. Her request essentially asks us to ignore her expert's cursory response to the district court's Scheduling Order, and this we decline to do. Sylla-Sawdon failed to qualify Kelsey as an expert because he did not abide by the Scheduling Order and Rule 26(a)(2)(B), although we speculate that plaintiff may have had difficulty qualifying Kelsey as an expert in tire failure analysis even if his pretrial submission had complied with the Scheduling Order. . . .
Federal Rules of Civil Procedure 16(f) and 37(b)(2)(B) "authorize district courts to prohibit the admission of evidence proffered by the disobedient party.". . . . "The power of the trial court to exclude exhibits and witnesses not disclosed in compliance with its discovery and pretrial orders is essential" to judicial management of the case. . . . We do not agree with Sylla-Sawdon that Kelsey's affidavit complied with the district court's Scheduling Order. The affidavit lacked the specificity required by the Scheduling Order and thus failed to give Uniroyal advance notice of Kelsey's qualifications and the substance of his testimony so that Uniroyal could prepare to meet the testimony at trial. . . .Id. at 283-84 (citations omitted). Nor was Kelsey's failure to provide a complete report excused because the defendant elected to depose Kelsey. Id. Although the Sylla-Sawdon decision was premised upon the plaintiff's failure to abide by the district court's scheduling order, the court's discussion of the 1993 revisions to Rule 26 is illustrative:
The commentary to the amended Rule echoes the district court's stated rationale for requiring expert reports: the elimination of unfair surprise to the opposing party and the conservation of resources:
The information disclosed under the former rule in answering interrogatories about the "substance" of expert testimony was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was even of little help in preparing for a deposition of the witness. Revised Rule 37(c)(1) provides an incentive for full disclosure; namely, that a party will not ordinarily be permitted to use on direct examination any expert testimony not so disclosed. . . .
. . . .
. . . Since depositions of experts required to prepare a written report may be taken only after the report has been served, the length of the deposition of such experts should be reduced, and in many cases the report may eliminate the need for a deposition.
Fed.R.Civ.P. 26(a)(2)(B) advisory committee's note. The "sketchy and vague" nature of Kelsey's affidavit forced Uniroyal to depose Kelsey to determine his qualifications and the basis for his opinion. Consequently, the necessity of the deposition frustrated the purposes of the district court's Scheduling Order and today would likewise frustrate the purposes of Rule 26(a)(2)(B).Id. at 284. Accordingly, the Eight Circuit held that the district court did not abuse its discretion in limiting Kelsey's testimony to the content of his affidavit as a sanction for his failure to comply with the district court's Scheduling Order. Id. Because the affidavit and its attached curriculum vitae did not disclose any academic or practical experience in tire manufacture or tire failure analysis, the district court properly sustained Uniroyal's objections as Sylla-Sawdon attempted to elicit such evidence for the first time at trial. Id.
II. Treating Physicians
In its comments to the 1993 amendments to Rule 26(a)(2), the Rules Advisory Committee observed that the requirement of a written report in paragraph (2)(B) applies only to those experts who are retained or specially employed to provide "expert" testimony in the case. "A treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report." Id. Because of the nature of the job, treating physicians are often called to testify regarding factual matters and matters which reflect their expertise as physicians. The treating physician is said to be "the quintessential example of a hybrid witness for whom no Rule 26(a)(2)(B) disclosures are required."Sullivan v. Glock, Inc., 175 F.R.D. at 500; see also Elgas v. Colorado Belle Corp., 179 F.R.D. 296 (D.Nev. 1998); Sprague v. Liberty Mut. Ins. Co., 177 F.R.D. 78 (D.N.H. 1998).
The Sullivan opinion offers an excellent analysis of issues involving "hybrid" witnesses:
It is noteworthy that Rule 26(a)(2) creates two distinct types of disclosures: (1) disclosure of the identity of any witness who may provide opinion testimony at trial in accordance with Fed.R.Evid. 702, 703, and 705; and (2) the far more comprehensive written and signed report which Rule 26(a)(2)(B) requires for "a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony" (hereinafter, "retained experts"). This distinction, often overlooked in practice, is of critical importance. Rule 26(a)(2)(A) is colloquially said to apply to "hybrid" fact/expert witnesses, the most frequent example being a treating physician in a personal injury case. [Footnote omitted.] As to these witnesses, the comprehensive disclosures of the written report set forth in Fed.R.Civ.P. 26(a)(2)(B) are not required. . . .
Although it is clear that a treating physician is the quintessential example of a hybrid witness for whom no Rule 26(a)(2)(B) disclosures are required, it is a mistake to focus solely on the status of the expert, instead of the nature of the testimony which will be offered at trial. A witness can be a hybrid witness as to certain opinions, but a retained expert as to others, and with regard to treating physicians, there is a debate over where the line should be drawn. . . .Sullivan v. Glock, Inc., 175 F.R.D. at 500-501. The Sullivan court adopted the approach taken in Shapardon v. West Beach Estates, 172 F.R.D. 415, 416-17 (D. Haw. 1997):
To the extent that the source of the facts which form the basis for a treating physician's opinions derive from information learned during the actual treatment of the patient — as opposed to being subsequently supplied by an attorney involved in litigating a case involving the condition or injury — then no Rule 26(a)(2)(B) statement should be required.Sullivan v. Glock, Inc., 175 F.R.D. at 501. The court went on to observe,
The failure to appreciate the distinction between a hybrid witness and retained expert can be a trap for the unwary. In this case, for example, the plaintiff disclosed the identity of a number of experts who were also her treating health care providers, and hence, hybrid witnesses, but did not provide — and was not required to provide — the detailed disclosures mandated by Fed.R.Civ.P. 26(a)(2)(B). Not appreciating the distinction between hybrid witnesses and retained experts, defendant's counsel repeatedly demanded complete Rule 26(a)(2)(B) disclosures, when she was not entitled to receive them. [Footnote omitted.] Apparently operating under the misconception that the failure to provide these more detailed responses would result in automatic exclusion under Rule 37(c)(1), discussed below, defendant's counsel did not depose the hybrid witnesses. Instead, after the expiration of the discovery cutoff, she filed the instant motion in limine in an effort to exclude the testimony of these witnesses at trial.
As noted above, however, the plaintiff was not required to disclose any more than the identity of the hybrid witnesses under Rule 26(a)(2)(A), which she did. Thus, the automatic exclusion provision of Rule 37(c)(1) is inapplicable. Under an overly rigid reading of the rules of procedure, which I decline to do, the trap for the defendant would be that it would now be required to go to trial without any knowledge of the plaintiff's hybrid witnesses' opinions, because the discovery deadline has passed, and, without leave of the Court, the defendant would be unable to depose them. [Footnote omitted.]Id. at 501-502.
Failure to comply with Rule 26(a)(2) is sanctionable pursuant to Rule 37. After discussing the case law and certain tactical problems associated with Rule 37 sanctions, the Sullivan court reached the following "rules of reason" concerning the disclosure of hybrid expert testimony:
The first rule of reason is that the entire structure of the rules of procedure governing pretrial preparation, expert disclosures under Rule 26(a)(2) and discovery in general, underscore the need for a fixed period of discovery which ends at a date certain well before trial. Thus, last minute discovery should be strongly discouraged, absent truly exigent circumstances.
Second, there is an important interrelationship between the expert disclosures required by Rule 26(a)(2) and the other forms of discovery which must be recognized by counsel, who are obligated to comply with all of the requirements for each component, or risk the adverse consequences of failing to do so. Therefore, it is incumbent upon counsel to make full and timely disclosures of information regarding their retained experts, supplement them promptly when required, responsively answer interrogatories directed towards experts, and supplement these answers if warranted. Failure to do so may well result in the exclusion of the testimony of the expert at trial, in whole or in part. . . . Counsel must be prepared to provide full and meaningful disclosure and discovery at the times required by the rules of procedure and the pretrial scheduling order.
Third, counsel must be familiar with the distinction between hybrid witnesses and expert witnesses, and the significance of this difference with respect to the required disclosures of Rule 26(a)(2). The written report required by Rule 26(a)(2)(B) is inapplicable to hybrid witnesses, and counsel must be prepared to obtain information about the opinions and bases of their testimony by interrogatories and/or depositions. The failure to pursue these alternative means of discovering the expected opinion testimony of hybrid witnesses is not a basis for excluding that testimony at trial.
Fourth, when faced with a situation where no required expert disclosures have been made, or materially incomplete disclosures have been made, counsel must make a tactical decision. If the most important goal is to avoid surprise at trial or last minute discovery about expert testimony on the eve of trial, then counsel should consider filing a motion to compel adequate disclosures or in the alternative to exclude expert testimony as soon as possible following the discovery cutoff, so that if the court declines to exclude the expert's testimony, the opinions of that expert may be discovered, and a rebuttal expert engaged as far as possible ahead of trial. Alternatively, if the most important goal of the attorney is to preclude the expert from testifying at trial by evoking the automatic exclusion provisions of Rule 37(c)(1), he or she should remember that this course is not risk free, and that the exclusion of evidence is a severe sanction which the court may be reluctant to impose despite Rule 37(c)(1). . . .
Fifth, in determining whether or not the automatic exclusion provisions of Rule 37(c)(1) should be applied to exclude expert testimony, the court should consider four factors in assessing whether there was substantial justification for the failure to disclose or harmlessness to the opposing party: (1) the importance of the excluded testimony; (2) the explanation of the party for its failure to comply with the required disclosure; (3) the potential prejudice that would arise from allowing the testimony; and (4) the availability of a continuance to cure such prejudice. . . .
* * * *
The final factor the court should consider is whether a continuance may be granted to cure the effects of prejudice caused by a failure to disclose, or a late disclosure. Needless to say, if the issue arises months before a scheduled trial date, this remedy is far more palatable than if it arises on the eve of trial. Courts should be mindful that granting a continuance just before a scheduled trial inconveniences not only the attorneys and parties, but also non-party witnesses. Additionally, a court must be careful not to reward the party who failed to make proper disclosures by granting a continuance, a practice which invites abuse.Sullivan v. Glock, Inc., 175 F.R.D. at 506-508 (emphasis added).
III. Remedy
This court may impose sanctions under Rules 16 and 37 if a party's failure to timely provide expert disclosures is neither substantially justified nor harmless. Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1009 (8th Cir. 1998).
a. Expert Witnesses Gilmore and Freeman
The court finds that experts Gilmore and Freeman are subject to the requirements of Fed.R.Civ.P. 26(a)(2)(B). Plaintiff must, therefore, timely provide defendant with all the information required by that rule: (1) a written report signed by the expert witness; (2) a complete statement of all opinions to be expressed and the basis and reasons therefor; (3) the data or other information considered by the witness in forming the opinions; (4) any exhibits to be used as a summary of or support for the opinions; (5) the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; (6) the compensation to be paid for the study and testimony; and (7) a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Gilmore's and Freeman's written reports have not been provided to the court for review in conjunction with this motion to compel. The curriculum vitae supplied for these witnesses do not contain all of the information required by Rule 26(a)(2)(B).
This case is now set for trial the week of June 21, 1999. Noting the importance of these witnesses to the plaintiff's case, I find that plaintiff should be given until March 1, 1999 to fully comply with Rule 26(a)(2)(B). If defendant, by motion, shows to the court that plaintiff has not substantially complied with this deadline, more serious sanctions (such as striking the witnesses' opinions or strictly limiting the scope of their testimony) will be considered. See Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1009 (8th Cir. 1998) (district court did not abuse its discretion in excluding expert's opinion based on untimeliness).
b. Plaintiff's 17 Designated Medical Doctors
It is unclear from the record whether plaintiff intends these doctors to testify as treating physicians or as non-treating medical experts. In general, treating physicians have been allowed to testify to information and opinions acquired in the course of their treatment of a patient. See, e.g., Shapardon v. West Beach Estates, 172 F.R.D. at 417 (opinions of treating physicians based upon information acquired in the course of treatment do not trigger the report requirement of Rule 26(a)(2)(B); however, opinions that are based upon information received from outside sources, such as an independent medical examination report, do trigger the report requirement); Elgas v. Colorado Belle Corp. v. Colorado Belle Corp., 179 F.R.D. at 299-300 (to the extent that doctor had knowledge of plaintiff's medical condition through consultation, doctor was a treating physician and not subject to Rule 26(a)(2)(B) requirements; however, doctor should not be allowed to render a medical opinion based on factors that were not learned in the course of his limited treatment of the plaintiff);Sprague v. Liberty Mut. Ins. Co., 177 F.R.D. at 81 ("Plaintiff's expert witnesses are treating physicians and a treating psychologist from whom reports are not required, provided that all opinions they express are formed on the basis of their treatment of plaintiff."); Brown v. Best Foods, 169 F.R.D. at 387 (To the extent that a treating physician testifies only to the care and treatment of the patient, the physician is not considered to be a "specially employed" expert and is not subject to the written report requirement of Rule 26(a)(2)(B), even though the witness may offer opinion testimony under the Federal Rules of Evidence.).
Again, plaintiff has not responded in any detail to the motion to compel and the court does not know whether plaintiff intends to call any of the doctors as "specially employed" expert witnesses. Nor does the court have any way of knowing whether plaintiff's supplemental disclosures (see certificates of service at #34 and #35) are adequate.
Plaintiff is, of course, required to comply with Rule 26(a)(2)(A) with respect to any treating physicians who will be called to testify. If plaintiff intends to call any of the designated doctors as "specially employed" experts, he will be required to comply with the requirements of Rule 26(a)(2)(B) on or before March 1, 1999 with respect to any such witness. If plaintiff does not substantially comply with Rule 26(a)(2)(B) by March 1, 1999, the court may, upon motion, enter sanctions against the plaintiff, such as striking the proffered expert opinions or strictly limiting the doctors' testimony.
IV. Costs and Sanctions
Fed.R.Civ.P. 37(a)(4) requires the court to consider the imposition of sanctions in conjunction with motions to compel. Defendant has not asked that sanctions be imposed and the court finds that the circumstances of this matter would make such an award unjust. The court will, however, reconsider the issue of awarding costs and sanctions in any future discovery disputes.
V. Decision
IT IS ORDERED that the motion of defendant Farmers Union Co-Operative Association to compel plaintiff to properly disclose expert witnesses (#31) is granted as follows:
1. On or before March 1, 1999, plaintiff shall fully comply with Fed.R.Civ.P. 26(a)(2)(B) with respect to expert witnesses Jerry Gilmore and Paulette K. Freeman, and any other witness retained or specially employed to provide expert testimony in a case.
2. On or before March 1, 1999, plaintiff shall fully comply with Fed.R.Civ.P. 26(a)(2)(A) with respect to any witness who will testify as a treating physician.