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Piskorowski v. Target Corporation

United States District Court, Seventh Circuit

January 29, 2014

KIMBERLY PISKOROWSKI, Plaintiff,
v.
TARGET CORPORATION, a Minnesota Corporation, Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, Jr., District Judge.

Before the Court is Plaintiff's motion to reconsider [21] the Court's October 17, 2013 Order requiring Plaintiff's treating physician to produce a written report pursuant to Federal Rule of Civil Procedure 26(a)(2)(B). For the reasons set forth below, Plaintiff's motion [21] is granted.

I. Background

During the status hearing held on October 17, 2013, Plaintiff's counsel informed the Court that she intended to offer medical opinions from Plaintiff's treating physician, Dr. Jesse Butler, beyond diagnosis and treatment. In response, the Court instructed Plaintiff's counsel that the physician would need to provide a written expert report pursuant to Rule 26(a)(2)(B).

In her motion for reconsideration, Plaintiff contends that the Seventh Circuit's guidance to which the Court referred (see Meyers v. National R.R. Passenger Corp., 619 F.3d 729 (7th Cir. 2010)) has been superseded by the 2010 amendments to the Federal Rules of Civil Procedure, which no longer require treating physicians to submit reports in most circumstances. Plaintiff asks that the Court reconsider its October 17, 2013 ruling and, instead, order Dr. Butler to submit a Rule 26(a)(2)(C) disclosure statement.

II. Analysis

Rule 26(a)(2) governs expert reports. Relevant here, the rule states:

(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report - prepared and signed by the witness - if the witness is one retained or specifically employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.

As Rule 26(a)(2) demonstrates, all witnesses who are to give expert testimony must be disclosed, while only witnesses "retained or specifically employed to provide expert testimony" are required to submit an expert report in compliance with Rule 26(a)(2)(B). See Banister v. Burton, 636 F.3d 828, 833 (7th Cir. 2011). Experts who are not required to submit a report must provide a disclosure statement pursuant to Rule 26(a)(2)(C).

A treating physician is an expert witness when he testifies about opinions formed about a patient. See Meyers, 619 F.3d at 734-35. "It is generally agreed that a treating physician who testifies about his observations during treatment is not required to file an expert report." Coleman v. American Family Mutual Ins. Co., 274 F.R.D. 641, 644 (N.D. Ind. 20110) (citing cases). But the issue is more complex when the physician seeks to give an opinion about the cause of a plaintiff's injury, an issue the Seventh Circuit addressed in Meyers. Interpreting Rule 26(a)(2)(B), the court of appeals held that whether or not a treating physician who offers an injury-causation opinion must file an expert report turns on whether the treating physician determined the cause of the plaintiff's injury during or after treatment. Id.; see also Coleman v. American Family Mutual Ins. Co., 274 F.R.D. 641, 644 (N.D. ...


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