The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
At the time of this Court's May 13, 2011 approval and entry of the parties' jointly-submitted proposed final pretrial order ("FPTO"),*fn1 defendants also filed four motions in limine. With counsel for plaintiff Kathaleen Cooley ("Cooley") having since responded, this memorandum opinion and order addresses the motions to ready the case for trial.
Defendants' first motion (Dkt. 74) is captioned "Defendants' Motion To Bar the Admission of Medical Evidence That Has Not Been Disclosed in Accordance with Federal Rule of Civil Procedure 26(A)." Cooley's response shows this to be a quibble that really should not have occupied either the litigants' or this Court's time for its resolution.
At issue are three doctors who treated Cooley during her pregnancy--Drs. Catherine Dillon, Suzanne Ashby and David Shaw. Although defendants say they were not disclosed pursuant to either Fed. R. Civ. P. ("Rule") 26(a)(1) or 26(a)(2)(B), Cooley has responded that they were disclosed nearly two years ago in her July 22, 2009 answers to the First Set of Interrogatories promulgated by defendant Board of Education ("Board"), which then subpoenaed Cooley's medical records from the three doctors two weeks later.
Treating physicians have long been a source of confusion in the treatment prescribed by the Rules governing discovery, because their testimony most often encompasses their roles both as occurrence witnesses (e.g., what they observed in the course of their treatment) and as opinion witnesses under Fed. R. Evid. ("Evid. R.") 702 (testifying to their diagnoses and the like). As such they are not required to prepare the full-bore written reports called for by Rule 26(a)(2)(B), yet it is quite artificial to attempt to erect a wall between those two categories of testimony. That tension, which has vexed the drafters of the Rules as well as the courts, has prompted the adoption as part of the 2010 amendments to Rule 26 of a provision that points the way to resolution of the parties' current dispute in a manner that is fair to both (see new Rule 26(a)(2)(C)).
Because this case has not yet been set for trial (indeed, it could not be until after the current motions have been ruled upon), there is time to carry out such an equitable solution. Accordingly:
1. Dkt. 74 is denied, essentially on mootness grounds in light of this ruling.
2. Cooley is ordered to deliver to defendants, within 21 days from the issuance of this opinion, a report as to each of the three doctors conforming to the requirements of Rule 26(a)(2)(C).
3. If defendants wish to depose one or more of the doctors upon receipt of those reports, counsel for the parties are ordered to arrange for the taking of the deposition or depositions as promptly as possible. Any doctor whom defendants do not depose may not be called as a defense witness at trial.
Next, Dkt. 75 is captioned "Defendants' Motion To Bar Plaintiff's Trial Exhibits 39, 40, 41, 42, 43, 45, 46, 47 and 48." Those exhibits are characterized by defense counsel as "inadmissible hearsay under Fed. R. Evid. R. [sic] 801(d)(1)(B)." Here is how defendants' motion describes those exhibits:
Plaintiff's Trial Exhibits 39, 40, 41, 42, 43, 45 and 46 are memos that plaintiff wrote to herself during the spring of 2006 discussing conversations she had with various people and her observations and thoughts. (attached to Pretrial Order, Revised Exhibit C, and attached hereto as Group Exhibit A). Plaintiff's Trial Exhibits 47 and 48 are narratives written by plaintiff describing her duties as counselor and setting forth her version of the events of her employment at Community Links Highs [sic] School.
But defense counsel have gotten off on the wrong foot by focusing on Evid. R. 801, which sets out conditions that must be met for a statement to qualify as non-hearsay. Instead the first seven of the nine challenged exhibits may indeed be hearsay, but they qualify for admissibility under Evid. R. 803(1) or 803(3), or perhaps 803(5),*fn2 as exceptions to the barring of hearsay evidence.*fn3 That scotches defendants' opposition to those seven exhibits, but it does not apply to the statement of Cooley's duties as a counselor or to her extended narrative of events, respectively Exs. 47 and 48--those exhibits are inadmissible.
Thus Dkt. 75 is denied as to Cooley's Exs. 39 through 43, 45 and 46. It is granted as to Exs. 47 and 48.
Dkt. 76 is captioned "Defendants' Motion in Limine To Bar Plaintiff from Introducing Evidence of Speculative Damages." That label is misleading, because the term "speculative" suggests uncertainty as to the existence or amount of a claimed item of damages, while what is really at issue here are questions as to the appropriate causal relationship between (1) the assertedly wrongful termination of Cooley's employment and (2) the damage items at issue. And in that respect the ...