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In Burgess, for example, the plaintiffs' disclosures relating to treating physicians stated only that each physician examined or treated plaintiff and that each physician "may be called to testify regarding Mr. Burgess' injuries and damages."
Summary of this case from Little Hocking Water Ass'n, Inc. v. E.I. Du Pont De Nemours & Co.Opinion
Case No. 3:10-cv-24
03-02-2012
LUCAS BURGESS, et al., Plaintiffs, v. SHERIFF GENE FISCHER, et al., Defendants.
District Judge Thomas M. Rose
Magistrate Judge
ORDER DENYING DEFENDANTS' MOTION IN LIMINE (DOC. 69)
This case is before the Court on Defendants' motion in limine to exclude the testimony of Plaintiffs' expert witnesses pursuant to Fed. R. Civ. P. 26(a)(2). Doc. 69. While Defendants initially sought to exclude Dr. Paris' testimony, they subsequently withdrew that request in their Reply memorandum. Doc. 71 at PageID 624-25. Therefore, that portion of Defendants' motion is DENIED AS MOOT.
Defendants also seek to exclude the testimony of Plaintiffs' treating physicians at trial for failing to comply with Civil Rule 26(a)(2)'s disclosure requirements. Treating physicians are generally not required to provide a written expert report. See Fed. R. Civ. P. 26(a)(2) advisory committee notes to 1993 amendments; Kitts v. Gen. Tel. N., Inc., No. 2:04-cv-174, 2005 WL 2277438, at *5 (S.D. Ohio Sept. 19, 2005). Nonetheless, a party using treating physician testimony at trial must timely disclose: (1) "the subject matter on which the witness is expected to present evidence"; and (2) "a summary of the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C).
In Plaintiffs' disclosure of expert witnesses report, Plaintiffs identified six treating physicians. Doc. 58. For each witness, Plaintiffs stated that the physician examined or treated Mr. Burgess' injuries, "and may be called to testify regarding Mr. Burgess' injuries and damages." Id. Plaintiffs did not provide any more information regarding each treating physician's expected testimony. See id.
The Court finds that Plaintiffs' disclosures of the treating physicians -- Dr. Cortez, Dr. Goodall, Dr. Ladson, Dr. Wilcher, Dr. Schmidt, and Dr. Hicks -- are insufficient to comply with Civil Rule 26(a)(2)(C), as Plaintiffs have not provided "a summary of the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C)(ii). Accordingly, Plaintiffs are ORDERED to provide supplemental disclosures of their treating physicians to Defendants by March 19, 2012. The supplemental disclosures must include the facts and opinions to which each treating physician is expected to testify. To be clear, this Order does not authorize Plaintiffs to add new experts in their supplemental disclosures.
The Court notes that -- given the April 20, 2012 discovery deadline in this case -- Defendants have sufficient time to depose Plaintiffs' treating physicians. If Defendants have already deposed any of them, this Order authorizes Defendants to depose that physician a second time, if necessary. Additionally, Defendants' deadline for designation of rebuttal experts is extended until April 2, 2012.
The Court will not exclude the testimony of Plaintiffs' treating physicians at this time. Therefore, Defendants' motion in limine is DENIED.
IT IS SO ORDERED.
Michael J. Newman
United States Magistrate Judge