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SOWELL v. BURLINGTON NORTHERN AND SANTA FE RAILWAY CO.

December 6, 2004.

GERALD SOWELL Plaintiff,
v.
BURLINGTON NORTHERN AND SANTA FE RAILWAY CO. Defendant.



The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the court is Defendant's Motion to Strike Plaintiff's Expert Disclosures of Drs. Martin Hall, David Smith, and Drs. Carlito Orig, F. Mansour, and Grey Hawley of the Clearing Clinic ("Defendant's Motion"). [Dkt 32.] For the reasons set forth below, Defendant's Motion is granted, and certain parts of those disclosures are stricken.

BACKGROUND

  Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose, at a time set by the court or in the alternative by the rule, the identity of any person who may be used at trial to present testimony under Rules 702, 703 or 705 of the Federal Rules of Evidence. Fed.R.Civ.P. 26(a)(2)(A), (C). Subsection (a)(2)(B) of Rule 26 imposes an additional requirement relating to any witness who is retained or specially employed to present expert testimony; such a witness must provide a written report setting forth, inter alia, the opinions to be offered and the basis therefor. Fed.R.Civ.P. 26(a)(2)(B).*fn1

  This court maintains a Standing Order regarding the disclosure of testimony by treating physicians, which provides in relevant part:
Treating physician must be identified pursuant to Rule 26(a)(2)(A) but the report requirement of Rule 26(a)(2)(B) shall not apply to the extent that the testimony of such treating physician is limited to: (a) a description of the symptoms presented to the physician; (b) description of records or other information relied on to provide treatment; (c) any diagnosis made for purpose of treatment, and (d) a description of any treatment prescribed or provided. Testimony by a treating physician as to causation or prognosis or future impact of the condition or injury is subject to the report requirement of Rule 26(a)(2)(B).
Standing Order as to Expert Disclosure and Discovery, http://www.ilnd.uscourts.gov/JUDGE/BROWN/Expert.htm (last updated Dec. 2003).

  On May 26, 2004, plaintiff Gerald Sowell was ordered to serve his Rule 26(a)(2) disclosures, including Rule 26(a)(2)(B) reports, no later than August 13, 2004. [Dkt 29.] On that same day, Sowell's counsel stated in open court that he intended to call Dr. Dennis Gates as a Rule 26(a)(2)(B) witness. (Def.'s Mot. Ex. B, Tr. May 26, 2004 at 24.) Sowell's counsel further stated that Dr. Martin R. Hall and Dr. David Smith would be disclosed "just as treaters explaining what [they] did." (Id.) At that time, the court cautioned that a disclosure must be served with respect to a treating physician, and that Sowell must serve a Rule 26(a)(2)(B) report if the physician would render any opinion outside of what the medical records revealed and his treatment of Sowell. (Id. at 10, 13.) The court also cautioned Sowell about the Standing Order that a treating physician cannot testify about causation without serving a Rule 26(a)(2)(B) report. (Id. at 13.)

  Sowell subsequently served his Rule 26 Disclosures on Defendant's counsel. (Def.'s Mot. Ex. A, Pl.'s Rule 26 Disclosures.) Sowell listed Drs. Martin R. Hall, Carlito Orig, F. Mansour, Greg Hawley, and David Smith as "Rule 26(a)(2)(A) non-retained opinion witnesses," and listed Dr. Dennis Gates as a "Rule 26(a)(2)(B) Retained Opinion Witness?." (Id. at 1-3.) In the disclosure, Sowell stated that Dr. Hall is expected to testify consistent with his medical records and offer the opinion that the damage to Sowell's knee was caused by a work injury on June 24, 2001. (Id. at 1.) Sowell disclosed that Drs. Orig, Mansour, and Hawley are expected to testify that Sowell sustained an injury to his knee caused by a work accident on June 24, 2001. (Id. at 2.) Sowell also disclosed that Dr. Smith is expected to testify that the care and treatment he rendered to Sowell was for an injury that occurred on June 24, 2001 while working at the railroad and that the June 24, 2001 accident was a cause of Sowell's injury and permanent disability. (Id.) Sowell did not provide a report pursuant to Rule 26(a)(2)(B) for Drs. Hall, Orig, Mansour, Hawley or Smith.

  Defendant subsequently filed the present motion, arguing that Sowell's disclosure that Drs. Hall, Smith, Orig, Mansour, and Hawley will offer opinions regarding a causal connection between Sowell's condition and the incident at issue triggers the requirement of a report pursuant to Rule 26(a)(2)(B). (Def.'s Mot. at 1.) While acknowledging that those doctors should be able to testify as to the nature and extent of Sowell's injury that they observed and the treatment they rendered even without a report, Defendant seeks an order striking Sowell's disclosure of Drs. Hall, Smith, Orig, Mansour, and Hawley insofar as they would testify to causation, prognosis, degree of permanency, and whether Sowell is disabled from returning to his former work. (Id. at 1, 2.) In response, Sowell does not dispute that he was informed of the Standing Order and does not deny that his disclosures do not conform with that Order. Instead, Sowell takes issue with the Order, urging this court to "disavow" what he calls the "minority view" that a treating physician may not opine on causation, prognosis, and the future impact of the injury without a Rule 26 report, and arguing that this court's Standing Order as to expert disclosures and discovery does not comport with Rule 83 of the Federal Rules of Civil Procedure. (Pl.'s Resp. at 3, 5-7.) [Dkt 34.]

  After carefully considering the parties' arguments, the court rejects Sowell's invitation to "disavow" its Standing Order.

  ANALYSIS

  The purpose of Rule 26(a)(2) disclosures has been described by the Seventh Circuit:
The expert witness discovery rules are designed to aid the court in its fact-finding mission by allowing both sides to prepare their cases adequately and efficiently and to prevent the tactic of surprise from affecting the outcome of the case.
Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000).

  In Musser v. Gentiva Health Servs., 356 F.3d 751 (7th Cir. 2004), the Seventh Circuit eliminated any doubt as to whether testimony by a treating physician is subject to disclosure pursuant to Rule 26(a)(2). The Seventh Circuit affirmed summary judgment for a defendant following the district court's decision to exclude expert testimony by the plaintiff's treating physician because the plaintiff's counsel failed to serve a Rule 26(a)(2) disclosure regarding that physician. Id. at 754, 757. In a footnote, the Seventh Circuit distinguished a previous decision, Richardson v. Consolidated Rail Corp., 17 F.3d 213 (7th Cir. 1994), as based on an earlier version of Rule 26. Id. at 756 n. 2.

  However, as Sowell points out, the court declined to "reach the disputed issue of whether an individual who serves in the capacity of `treating physician' (or any analogous position) may nonetheless be required to submit a report under Rule 26(a)(2)(B)." Id. at 758 n. 3. The Seventh Circuit observed that "[i]t is clear that there is some expert testimony in the nature of the treating physician's testimony that does not require a report. But some district courts have suggested that if the Rule 26(a)(2)(A) testimony exceeds the scope of treatment and ventures into more general expert opinion testimony, a report may be necessary." Id. However, the court concluded that it was not necessary to reach that issue in the Musser case. Id.

  As the Seventh Circuit observed in Musser, there is a difference of opinion among the district courts as to whether a treating physician must provide a Rule 26(a)(2)(B) report when the physician's anticipated testimony goes beyond his or her observations, diagnosis or treatment and is expected to include opinions on issues such as causation, prognosis and permanency. Some courts, including this court, have held that those issues go beyond the scope of the testimony a treating physician may render without providing a Rule 26(a)(2)(B) report. See, e.g., Zarecki v. National R.R. Passenger Corp., 914 F. Supp. 1566, 1573 (N.D. Ill. 1996) (striking treating physician's affidavit with opinions on causation and foreseeability where physician was not disclosed pursuant to Rule 26(a)(2) and failed to serve report); Rebolledo v. Herr-Voss Corp., 101 F. Supp. 2d 1034, 1039 (N.D. Ill. 2000) (testimony of treating physician who did not prepare a Rule 26(a)(2)(B) report limited to observations made during the course of treating the plaintiff and to matters within his personal knowledge); Murray v. Chicago Transit Auth., No. 97 C 7923, 1999 WL 49355 at *1 (N.D. Ill. Jan. 29, 1999) (Levin, M.J.) (testimony of a treating physician as to causation requires a Rule 26(a)(2)(B) expert report); Schoolman v. UARCO, Inc., No. 94 C 5598, 1999 WL 47124 at *3 (N.D. Ill. Jan. 20, 1999) (Coar, J.) (testimony of treating physician who did not submit an expert report limited to the physical condition of the plaintiff as observed by the physician). See also Hoover v. U.S., No. 01 C 2372, 2002 WL 1949734 at *6-7 (N.D. Ill. Aug. 22, 2002) (Schenkier, M.J.) (stating, in dicta, ...


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