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Osterhouse v. Grover

May 17, 2006

MELANIE D. OSTERHOUSE, DAVID OSTERHOUSE, JADON OSTERHOUSE, PLAINTIFFS,
v.
GREGORY L. GROVER, PACCAR, INC., M.E.M.R., INC., RIGHTWAY DIESEL SERVICE, EATON CORPORATION, TRANSGUARD INSURANCE COMPANY OF AMERICA, INC., GENERAL MOTORS CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge

ORDER

This matter is before the Court on the First Motion for Sanctions filed by the Defendants, Gregory L. Grover, M.E.M.R., Inc. (MEMR), and Transguard Insurance Company of America (Transguard), on February 9, 2006 (Doc. 166) and the Second Motion for Sanctions filed by Grover, MEMR, and Transguard, on February 9, 2006 (Doc. 167). For the reasons set forth below, the first motion for sanctions is GRANTED IN PART and DENIED IN PART (Doc. 166) and second motion for sanctions is DENIED (Doc. 167).

BACKGROUND

This case arises from a traffic accident that occurred on October 22, 2002 involving the Plaintiff Melanie Osterhouse's car and a truck driven by Defendant Gregory L. Grover. The Plaintiffs allege that an axle and wheels from the truck struck the car while the vehicles were traveling in opposite directions on Interstate 64 in Illinois. At the time, Melanie Osterhouse was 6 months pregnant. Shortly after the accident, Melanie Osterhouse gave birth to Jadon Osterhouse who suffers from a number of medical conditions. The Osterhouses allege, in part, that these medical conditions are a result of the accident.

On January 19, 2006, the Defendants received the Plaintiffs' expert disclosures and reports. The disclosure identified 51 separate experts: 22 are treating physicians, 8 are treating organizations, 15 are other non-retained experts, and 6 are retained experts. The Defendants filed the pending motions on February 9, 2006*fn1 and generally object to the number of Plaintiffs' experts and argue that expert reports are required for each of the experts listed. On February 28, 2006, this Court held a hearing on the matters raised in the Defendants' motions.*fn2 At the hearing, the Plaintiffs withdrew the disclosure of treating organizations as experts (which included Barnes-Jewish Hospital, Missouri Baptist Medical Center, Washington University in St. Louis, St. Louis Children's Hospital, Charles County Infant & Toddlers Program, Civitas Medical Center, ProCare Pharmacy, and Nova Factor). The Plaintiffs also withdrew the disclosure of Melanie Osterhouse as a non-retained expert. The remaining expert disclosures are still under consideration.

DISCUSSION

The Defendants seek sanctions pursuant to Federal Rule of Civil Procedure 37(a)(3) and (c)(1) which provide that evidence may be excluded at trial if an incomplete disclosure, as required by Rule 26(a), is made. Rule 26(a)(2) sets forth two types of expert disclosures: the Plaintiffs must disclose "the identity of any person who may be used at trial to present evidence under Rules 702, 703, and 705 of the Federal Rules of Evidence" pursuant to Rule 26(a)(2)(A); and, if the expert 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" the Plaintiffs also must provide an expert report pursuant to Rule 26(a)(2)(B). With respect to the non-retained experts listed by the Plaintiffs, the Defendants argue that expert reports must be prepared. Thus, the Defendants argue that each of the Plaintiffs' experts are "retained or specially employed." Each of the types of experts will be addressed in turn.

NON-RETAINED TREATING PHYSICIANS

For each of these disclosures, the Plaintiffs provide the name, address, and telephone number of various treating physicians. The Plaintiffs also provide a paragraph long statement of each of the doctors' specialty, the type of services that the doctors performed for the Plaintiffs, what each doctor is expected to testify to, and the material relied on for their opinions. Each paragraph presupposes that doctors will express their opinions at their depositions (which have not been taken). The paragraphs also contain the following language: that each doctor "may be expected to testify on Plaintiffs' medical condition, including diagnoses; causation; prognoses; nature, extent and duration of the injury; past and future pain and suffering; past and future disability; necessity of medical treatment, past and future; and reasonableness and necessity of medical expenses in the past and future." None of these disclosures identify which Plaintiff, of the three, each doctor will be testifying about. None of these disclosures identify what opinions each doctor will express. None of these disclosures identify which specific documents each opinion relies on.

The Defendants argue that "[w]hen a treating physician is being tendered for the purpose of rendering opinions regarding an issue such as causation, that physician is, in fact being retained for the purpose of providing expert testimony" (Doc. 166 at p. 5). Further, the Defendants argued at the hearing that the disclosure of 51 experts is oppressive: that they should not be compelled to take the deposition of these witnesses in order to determine what their opinions may be. Thus, the Defendants argue, each of these experts should have provided an expert report pursuant to Rule 26(a)(2)(B) and the paragraph disclosure that is provided is inadequate. In response, the Plaintiff asserts that these experts are merely to be disclosed, per Rule 26(a)(2)(A), as they are not "retained or specially employed." In Musser v. Gentiva Health Services, 356 F.3d 751 (2004), the Seventh Circuit Court of Appeals expressly reserved the issue of whether an expert report is required in situations such as the one here:

We need not reach the disputed issue of whether an individual who serves in the capacity of 'treating physician' (or any analogous position) may nonetheless be require to submit a report under Rule 26(a)(2)(B). It 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. at 758 n.3 (citations omitted).

The Seventh Circuit cited two cases for this proposition, Zarecki v. National Railroad Passenger Corporation, 914 F.Supp. 1566 (N.D. Ill. 1996), and Wreath v. United States, 161 F.R.D. 448 (D. Kan. 1995). Zarecki dealt primarily with disclosure under Rule 26(a)(2)(A) and not directly with the necessity of an expert report. In Wreath, however, Magistrate Judge Newman stated that "when the physician's proposed opinion testimony extends beyond the facts made known to him during the course of the care and treatment of the patient and the witness is specially retained to develop specific opinion testimony, he becomes subject to the provisions of" Rule 26(a)(2)(B). Thus, when a treating physician offers an opinion that goes beyond those related to his care and treatment of the Plaintiffs, he may need to provide an expert report.

This conclusion is echoed in Griffith v. Northeast Illinois Regional Communter Railroad Corp., ___ F.R.D. ___, 2006 WL 436114 (N.D. Ill. 2006). In this case, Magistrate Judge Brown considered the question of whether a party should provide an expert report for a treating physician.*fn3 The Plaintiff provided a cursory expert report that was deficient in a number of respects. The Court originally struck the expert disclosure as there was no showing that the doctor was a treating ...


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