United States District Court, S.D. Illinois
ANGELA G. HAMBACH and TED A. HAMBACH, Plaintiffs,
BUILDERS TRANSPORTATION CO., LLC and DUSTIN M. IVERSON, Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on Plaintiffs' Motion (Doc.
52) for Clarification. The defendants filed a timely response
a personal injury matter arising from a motor vehicle
accident on Interstate 55 in Madison County, Illinois. The
plaintiff, Angela Hambach, was driving northbound when her
vehicle was impacted in the rear by a semi-truck being
operated by Defendant Iverson. Defendant Iverson was employed
by defendant Builders Transportation Co., LLC
(“Builders”) at the time of the incident.
Plaintiff Ted Hamback is Angela Hambach's husband and he
is alleging a loss of consortium in the amended complaint.
plaintiffs now move the Court for clarification with regard
to Expert Disclosures Pursuant to Fed.R.Civ.P. 26(a)(2).
Specifically, whether Dr. Christopher J. Wolf should be
regarded a treating physician or a retained expert for the
purposes of Rule 26(a)(2).
the Federal Rules of Civil Procedure, there is no provision
for a motion for clarification. The proper means for raising
this issue would be a motion pursuant to Federal Rule of
Civil Procedure 37(c) or a pretrial motion in
limine. However, since the parties have raised the
issue, the Court grants the motion and will address it in
order to expedite pretrial matters.
Rule of Civil Procedure 26 governs the duty to disclose and
general provisions governing discovery. Section (a)(2) of
Rule 26 pertains to the disclosure of expert testimony.
Rule 26(a)(2)(B) provides:
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 specially
employed to provide expert testimony in the case or one whose
duties as the party's employee regularly involve giving
regard to treating physicians, the Seventh Circuit has held
that, “[w]e resolve this outstanding issue today by
concluding that a treating physician who is offered to
provide expert testimony as to the cause of the
plaintiff's injury, but who did not make that
determination in the course of providing treatment, should be
deemed to be one ‘retained or specially employed to
provide expert testimony in the case, ' and thus is
required to submit an expert report in accordance with Rule
26(a)(2).” Meyers v. National R.R. Passenger
Corp., 619 F.3d 729 (7th Cir. 2010).
Christopher Wolf of the University of Missouri Healthcare
was disclosed by the plaintiffs as a Rule 26(a)(2)(C)
non-retained expert witness. A Rule 26(a)(2)(C) witness is
not required to provide a written report, but the party must
disclose the subject matter and a summary of the facts and
opinions to which the witness is expected to testify.
According to the plaintiffs' disclosure, Dr. Wolf is one
of plaintiff Angela Hambach's treating physicians and is
expected to testify with regard to her injuries and that her
injuries were the direct and proximate cause of the incident
in question. The plaintiffs further state that that Dr. Wolf,
“currently coordinates the care of the other physicians
and specialists treating Angela Hambach” and is in the
best position to “opine on her condition, the causes of
it, and her prognosis.”
defendants argue that the plaintiff did not seek treatment
from Dr. Wolf until after she retained counsel. They further
state that Dr. Wolf has meet and conferred with
plaintiffs' counsel and that plaintiffs' have
provided Dr. Wolf with “reports and opinions of
Plaintiff's retained forensic psychologist.” The
defendants also allege that Dr. Wolf has conferred with
Plaintiffs' retained life care planner, vocational
rehabilitation experts, and been provided “opinions of
other medical providers and even an affidavit from
Plaintiff's employer.” (Doc. 55, pg 4). As such, it
is the defendants' position that Dr. ...