The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
Monday, 22 April, 2013 10:47:50 AM Clerk, U.S. District Court, ILCD
Now before the Court is the Defendant's motion to strike Plaintiff's Rule 26 initial disclosures [#65]. The motion is fully briefed. As stated herein, the motion is granted.
The Federal Rules of Civil Procedure require parties to disclose certain information about potential witnesses, at about the time of the Rule 16 scheduling conference. FRCP 26(a)(1)(A)(i), (C). In addition, expert witnesses are to be identified, FRCP 26(a)(2)(A), "at the times and in the sequence that the court orders." FRCP 26(a)(2)(D).
When a party identifies an expert witness, the party must comply with the disclosure requirements in Rule 26(a)(2). If the expert witness "is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony," the identification must be accompanied by "a written report - prepared and signed by the witness". FRCP 26(a)(2)(B). In pertinent part, Rule 26(a)(2)(B) provides: "The [written] report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them...." Id. The purpose of the report is to provide the opposing party with adequate notice of the substance of the expert's forthcoming testimony and to allow time to prepare for a response. Meyers v National Railroad. Passenger Corp, 619 F3d 729, 734-35 (7th Cir 2010), citing Walsh v Chez, 583 F3d 990, 993 (7th Cir 2009); Jenkins v Bartlett, 487 F3d 482, 487 (7th Cir 2007).
The Rules also provide for supplementation of expert disclosures to correct any errors or fill in any incompletions. FRCP 26(e)(1) and (2). The consequence of non-compliance with Rule 26(a)(2)(B) and (e)(1) and (2) is exclusion of the expert's testimony "unless the failure was substantially justified or is harmless." FRCP 37(c)(1). See also, Myers, 619 F3d at 734-35, citing Gicla v United States, 572 F3d 407, 410 (7th Cir 2009).
As a general rule, many courts (including this one) do not treat physicians as testifying experts, because they have not been retained for litigation. See, generally, Wright and Miller, Federal Practice and Procedure, § 2033 and 2034; see also, Musser v Gentiva Health Services, 356 F3d 751, 756 (7th Cir 2004)(citing commentary to Rule 26 as support for the distinction between retained experts and those who can provide expert testimony because of their involvement in the facts of the case, such as treating physicians).
District courts so ruling treat these physicians as fact witnesses, requiring their identification but not requiring a written report. The Seventh Circuit has not addressed that precise point. Without ruling on that specific issue, the Seventh Circuit has made clear, however, that if a treating physician renders expert testimony as to the specific issue of causation, a written report is required if the subject of causation "was not determined at the time of treatment." Myers, 619 F3d at 734-35.
In Myers, two treating physicians opined in a letter as to causation. No evidence was presented or found in the record suggesting that they had "previously considered or determined the cause" of plaintiff's injuries during the course of treatment. The Court of Appeals noted that the letters offered by the physicians were "remarkably sparse;" they were thus insufficient to constitute the requisite "reports" because they did not reveal what the doctors might have been thinking during treatment. The Seventh Circuit affirmed the District Court's exclusion of the causation testimony. Id.
In this case, the Rule 16 conference was held on April 5, 2010. The parties had previously submitted an agreed Plan for the case schedule. As is pertinent here, that Plan called for*fn1 making initial Rule 26(a) disclosures by July 1, 2010 and for identifying testifying expert witnesses (and providing reports as necessary) by February 1, 2011. The Court ordered that all discovery was to close on Sept. 1, 2011, a date that was later continued to May 18, 2012 (Minutes of Feb. 23, 2012); June 29, 2012 (Minutes of May 10, 2012) and Nov. 30, 2012 (Minutes of June 30, 2012).
Plaintiff did not make his Rule 26(a) disclosures, so Defendant sought the required information by written discovery. On July 28, 2011, Plaintiff identified two testifying expert witnesses, Dr. David Fletcher and David Gibson*fn2 , as well as two treating physicians, Dr. James Williams and Dr. Clyde Grady.
Defendant deposed Dr. Grady on May 25, 2011, and Dr. Williams at about the same time. A supplemental deposition of Dr. Williams was taken on April 28, 2011.
On April 8, 2013 (nearly a year after the depositions and over 4 months after the close of all discovery), Plaintiff served Rule 26 Initial Disclosures. (Exh A). In those disclosures, he identified three additional testifying expert witnesses: himself, Dr. Clyde Grady and Dr. James Williams. The disclosures state, inter alia, that Dr. Grady "is expected to offer the opinion that Plaintiff's injury was caused by the incident in question," and that Dr. Williams is "expected to offer the opinion that Plaintiff's injury was caused by the incident in question." Id. They also disclose that Plaintiff is expected to testify "regarding the incidents as described in the complaint, which caused or contributed to his injury." Id.
In the instant motion, Defendant moves to strike these Rule 26 designations of experts as untimely, as "patently unfair," and as a "back door approach" around the required formal designation of experts. Plaintiff responds that the opinions of these two doctors fall within the exception discussed in Myers for treating physicians -- because their opinions were reached in the course of ...