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Schmelzer v. Muncy

United States District Court, S.D. Illinois

August 14, 2019

STEVEN SCHEMELZER, et al., Plaintiffs,
v.
MARK J. MUNCY, et al., Defendants.

          MEMORANDUM AND ORDER

          GILBERT C. SISON, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         The instant matter involves a collision between Plaintiff Steven Schemelzer's vehicle and a semi-tractor trailer driven by Defendant Mark Muncy. The allegations in the Amended Complaint state that Muncy was trying to back into a private driveway and in doing so obstructed traffic. Eventually, Schmelzer collided with the semi-tractor trailer and suffered extensive injuries. Schmelzer claims that he suffered traumatic brain injury, facial fractures and other injuries as a result of the collision.

         This matter comes before the Court pursuant to a discovery dispute between the parties held on March 26, 2019. There are currently two outstanding issues before the Court. The first is whether Plaintiff's failure to disclose its treating physicians as expert witnesses under Rule 26(a)(2) is justified or harmless. The Court finds that Plaintiff's non-disclosure is neither justified nor harmless and therefore appropriate sanctions are warranted under Rule 37.

         The second issue before the Court is whether billing personnel from various hospitals who were disclosed by the Plaintiff in his initial disclosures need to be disclosed as expert witnesses. Plaintiff intends to use these witnesses to discuss the customary and usual charges of the hospitals where they work. Plaintiff contends that these witnesses are lay witnesses and need not be disclosed as experts. Defendants contend that they are experts and therefore are subject to the expert disclosure requirements under Rule 26(a)(2). Based on the information currently before the Court, the Court finds that these individuals are expert witnesses and therefore need to be disclosed as expert witnesses pursuant to Rule 26(a)(2). The Court explains its decision regarding these matters as follows:

         II. Background

         A. The Discovery dispute between the parties.

         On March 26, 2019, the Court held a discovery dispute conference that addressed three issues between the parties. The first issue involved whether Defense counsel had violated Rule 30(c) of the Federal Rules of Civil Procedure by talking with a witness during a break after that witness had already been tendered for testimony. The second issue involved whether billing personnel from various hospitals who would be called to talk about customary and usual charges of the hospital had to be disclosed as expert witnesses. The final issue involved whether treating physicians disclosed by the Plaintiff, who would be offered to give testimony about causation, diagnosis and prognosis, had to be disclosed as expert witnesses. Prior to the discovery conference, the Court received and reviewed the briefs of the parties wherein both sides explained and argued their respective positions (Plaintiff - Doc. 168, 170; Defendants - Doc. 172, 173).

         After hearing the arguments of the parties at the discovery dispute conference, the Court made various rulings. Regarding the first issue described above, the Court found that there was a Rule 30(c) violation committed by defense counsel. However, the Court denied the sanctions that Plaintiff was seeking. As to the second issue regarding the billing personnel, the Court ordered the parties to further brief the issue given that it did not get much treatment in the parties' briefs. Finally, as to the third issue, the Court found that the treating physicians identified by the Plaintiff should have been disclosed as experts pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure. However, the Court left open the question of what the appropriate remedy should be. As such, the Court ordered the parties to further brief the issue of whether the Plaintiff's failure to disclose was justified or harmless and if it was not, what the appropriate sanction should be. The Court received and reviewed the additional briefing of the parties and the matter is now ripe for a ruling.

         B. The Court's prior decision regarding Plaintiff's failure to disclose.

         Prior to explaining why the Plaintiff's failure to disclose was not harmless and why sanctions are warranted under Rule 37, the Court must explain why there was a disclosure violation in the first place.

         Plaintiff propounded his initial disclosures to Defendants pursuant to Rule 26(a)(1) on July 18, 2016. In those disclosures, Schmelzer identified a number of individuals who had treated him at various hospitals and institutions. A typical disclosure identifying the treating physicians would note that the individual provided care and treatment, had knowledge of the nature and extent of the injuries, as well as the nature of the treatment provided, and the reasonableness and necessity of such treatment. Defendants objected to these treating physicians offering expert testimony because they were not properly disclosed as non-retained experts under Rule 26(a)(2). Plaintiff countered stating that he had complied with the rules because he had identified such individuals as treating physicians in his initial disclosures and provided in a timely manner all relevant medical records that such physicians reviewed and relied upon.

         Based on the arguments of the parties, it was clear to the Court that while the names of the treating physicians were disclosed as part of the initial disclosures, Plaintiff did not formally designate any of the treating physicians as experts under Rule 26(a)(2). The Federal Rules of Civil Procedure require disclosures for both fact and expert witnesses. The disclosure of fact witnesses is governed by Rule 26(a)(1)(A). The disclosing party must identify the name, address and telephone number (if known) and the subjects of the discoverable information the witness may have. See Fed. R. Civ. Proc. 26(a)(1)(A).

         As for expert witnesses, they are broken down into two categories, retained and non-retained experts. The disclosure of a retained expert witness also requires the disclosure of a written report containing information such as the opinions, facts, exhibits, qualifications, prior testimony and compensation received by the witness. See Fed. R. Civ. Proc. 26(a)(2)(B). The disclosure of a non-retained expert does not require the disclosure of a report. Rather, it simply requires (1) the subject matter on which the witness is expected to testify; and (2) a summary of the facts and opinions to which the witness is expected to testify. See Fed. R. Civ. Proc. 26(a)(2)(C).

         Plaintiff first claims that the treating physicians are fact witnesses and are competent to testify to those things that they observed during the course of treatment. Plaintiff thus seems to argue that such witnesses need not be disclosed as expert witnesses. This is certainly true to an extent. See, e.g., Brandon v. Village of Maywood, 179 F.Supp.2d 847, 859 (N.D. Ill. 2001)(stating that “[f]or a treating physician, testimony about what the physician actually observed and what treatment he provided are not matters outside of the ken of the average juror, so Rule 702 and the disclosure obligations of Rule 26(a)(2)(A) are not triggered.”). However, in his briefing and during the discovery dispute conference, Plaintiff noted that he expected the treating physicians to offer opinions on causation, diagnosis and prognosis. Given those representations, it is clear that the treating physicians' testimony would not be limited to what they observed but would, in fact, be offering expert testimony. For example, testimony about prognosis would clearly qualify as expert testimony, thus triggering the expert disclosure requirements. See, e.g., Brandon, 179 F.Supp.2d at 859-860 (noting that “opinions about [] prognosis or necessity for future treatment . . . required him to rely on medical expertise outside of the lay person's realm of knowledge, and thus it is expert testimony as defined by Rule 702, so disclosure is required under Rule 26(a)(2)(A)).

         Plaintiff next argues that to the extent expert disclosures are required, he complied with such requirements. Plaintiff notes that such treating physicians are non-retained experts and that there are no specific procedural requirements for such disclosures. (Doc. 168, p. 5). Again, Plaintiff is only partially correct. It is true that treating physicians are non-retained experts, and thus would not be subject to the more extensive disclosure requirements for retained experts set forth in Rule 26(a)(2)(B). However, Plaintiff must still comply with the disclosure obligations set forth in Rule 26(a)(2)(C), which requires disclosure of the subject matter and a summary of the facts and opinions to which the witness will testify. See Fed. R. Civ. Proc. 26(a)(2)(C).

         Plaintiff claims that he complied with such requirements because he disclosed the treating physicians in his initial disclosures and provided complete and timely copies of his medical records. (Doc. 168, p. 5). However, Plaintiff's identification of the treating physicians in his initial disclosures does not excuse him from making expert disclosure if those witnesses are to provide expert testimony. See, e.g., Tribble v. Evangelides, 670 F.3d 753, 759 (7th Cir. 2012)(noting that “duty to disclose a witness as an expert is not excused when a witness who will testify as a fact witness and as an expert witness is disclosed as a fact witness.”). And, here it is clear that Plaintiff did intend for the treating physicians to offer expert testimony.

         The Seventh Circuit has made it clear that treating physicians must be designated as experts if they are to provide expert testimony. See Musser v. Gentiva Health Services, 356 F.3d 751, 758 (7th Cir. 2004). See also O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1105 n.14 (7th Cir. 1994)(rejecting notion that treating physician was exempt from the requirements of FRE 702 and 703 and that treating physician should be treated like any other expert when offering expert testimony regarding causation). To illustrate, in Karum Holdings LLC v. Lowe's Companies, Inc., 895 F.3d 944 (7th Cir. 2018), the plaintiff disclosed a witness as a “fact” witness under Rule 26(a)(1)(A), but there was no later disclosure that this person would serve as an expert witness. Id. at 952. The Seventh Circuit agreed with the district court that the plaintiff's “purported expert disclosure . . . was plainly inadequate[.]” Id. The Seventh Circuit noted that the plain meaning of the rules “demand[ed] a formal designation for expert disclosures.” The Seventh Circuit further noted that “[t]here [wa]s a significant distinction between disclosing an ...


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