United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Pier 1's oral motion to
strike expert testimony made during the final pretrial
conference on October 27, 2017. For the reasons set forth
below, the motion is granted.
And Procedural Background
Wendy Walden is claiming negligence against Defendant Pier 1
for failing to maintain its retail facility in a safe
condition, failing to inspect the facility, failing to take
care when displaying furniture and other goods, creating
unsafe conditions, and failing to properly train its
employees. (Doc. 13-1, p. 1). Walden alleges that as a direct
and proximate result of one or more of the above negligent
acts, she was struck by a chair, causing her injury. (Doc.
13-1, p. 1). Pier 1 has raised thirteen affirmative defenses
including, but not limited to: failure to state a claim,
comparative fault, assumption of the risk, contributory
negligence, statute of limitations, laches, estoppel, unclean
hands, and unjust enrichment. (Doc. 28, pp. 2-3).
filed a motion in limine on October 6, 2017, asking this
Court to exclude any expert testimony offered on behalf of
Walden. (Doc. 31, p. 3). Pier 1 alleges that Walden has
failed to disclose any of her trial witnesses as experts or
provide any reports issued by experts in violation of Federal
Rule of Civil Procedure 26(a)(2)(A). (Doc. 31, p. 4). The
motion in limine was taken up at the pretrial conference as
an oral motion to strike expert testimony. Counsel for Walden
admitted he has not filed a notice pursuant to Rule
26(a)(2)(A) but argued the medical records of all treating
physicians were provided to Pier 1 during discovery and that
they were identified as possible witnesses in interrogatory
treating physician can provide expert testimony as long as he
or she is disclosed pursuant to Rule 26(a)(2). Fed.R.Civ.P.
26(a)(2); Musser v. Gentiva Health Servs., 356 F.3d
751, 758 (7th Cir. 2004). Any testimony regarding opinions
formed during or after treatment is considered expert
testimony, even if it is presented by a treating physician.
Coleman v. Am. Family Mut. Ins. Co., 274 F.R.D. 641,
644 (N.D. Ind. 2011) (citing Meyers v. Nat'l R.R.
Passenger Corp., 619 F.3d 729, 734-35 (7th Cir. 2010).
Under Rule 37(c)(1), a party that fails to identify a witness
as required by Rule 26(a) may not use that witness to supply
expert testimony at a trial “unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
to disclose a treating physician as an expert does not
prevent the physician from testifying as a fact witness.
Higgins v. Koch Development Corp., 997 F.Supp.2d
924, 929 (S.D. Ind. 2014) (citing Musser, 356 F.3d
at 758). Any part of a treating physician's testimony
that is based on scientific, technical or other specialized
knowledge, however, must be excluded because it is considered
expert testimony. See 2000 Advisory Committee Note
to Fed.R.Civ.P. 701.
medical records to discovery does not qualify as disclosure
of an expert under Rule 26(a)(2). The Seventh Circuit
recently addressed this issue in Cripe v. Henkel
Corp., where the plaintiff argued attachment of records
from six treating physicians to an expert's report
provided sufficient disclosure of those treating physicians
as expert witnesses. 858 F.3d 1110, 1112 (7th Cir. 2017).
Presumably, the plaintiff was arguing that because the expert
relied on those reports, the defense had notice the treating
physician's expertise was being invoked. The Seventh
Circuit disagreed, finding that “[a]ttaching the report
of a fact witness, such as a treating physician, to an
expert's report does not turn the fact witness into an
expert witness.” Id. Specifically, Judge
Easterbrook noted that “litigants should not have to
guess who will offer expert testimony; they need knowledge to
conduct their own discovery and proffer responsive
Seventh Circuit also has rejected the idea that a defendant
should be forced to assume that each fact witness listed in
discovery has the potential to become an expert.
Musser, 356 F.3d at 758. Rather, failure to disclose
fact witnesses as experts prejudices the opposing party
because there are actions that can be taken against experts
that are not applicable to fact witnesses, such as excluding
testimony under Daubert v. Merrell Dow
Pharmaceuticals, retaining rebuttal experts, and holding
additional depositions. Id. at 758-59. Thus, even
treating physicians and nurses must be specifically
designated as experts if they are to provide expert
testimony. Id. at 759.
Walden is claiming that attachment of medical records to her
Answer to Plaintiff's First Set of Interrogatories and
Request for Production of Documents is sufficient to qualify
as disclosure of her experts. In the First Set of
Interrogatories Directed to Plaintiff, Pier 1 specifically
asked Walden to identify
each Non-retained expert witness, including person whom
plaintiff expects to call at trial who may provide expert
witness opinion testimony by providing the expert's name,
address and field of expertise. State also any opinions the
expert will testify to at trial.
(Ex. A, pp. 2-3). Walden's response stated she
treating physicians and/or their staff to testify about
Plaintiff's medical treatment stemming from the
occurrence, the reasonableness of the medical treatment and
bills incurred and/or to be incurred as a result of the
occurrence, the possible need for future treatment needed as
a result of the occurrence, plaintiff's occurrence
related limitations (including ongoing and/or permanent pain
and limitations ...