Opinion
Civil Action No. 04-1162 Section "R" (1).
February 11, 2005
ORDER AND REASONS
Before the Court is defendant Helmerich Payne International Drilling Company's motion to strike plaintiff Robert D Gray's experts, witnesses and exhibits. For the following reasons, the Court DENIES defendant's motion.
The Court's scheduling order in this matter states that plaintiff must deliver to defendants "written reports of experts, including treating physicians," by December 3, 2004. (Rec. Doc. No. 17.) The scheduling order also requires parties to file witness and exhibit lists by January 3, 2005. ( Id.) The order states that no witness will be permitted to testify or exhibit to be used unless the party complies with the scheduling order or shows good cause for the failure to comply. ( Id.) Trial is scheduled for March 14, 2005.
Defendant contends that the Court should strike plaintiff's experts, witnesses and exhibits because plaintiff has not provided expert reports from his treating physicians and because plaintiff did not file his witness and exhibit list until January 7, 2005, four days after the deadline. Defendant argues that, because it did not receive expert reports for plaintiff's treating physicians, it did not engage any medical experts and, now that the February 1, 2005 discovery deadline has passed, defendant would be prejudiced by plaintiff's treating physicians' testimony. Defendant further argues that plaintiff has failed to show "good cause" for the late filing of his witness and exhibit lists.
The Court is not persuaded by defendant's arguments. First, the Federal Rules of Civil Procedure require written reports for only those expert witnesses "retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony." FED. R. CIV. P. 26(a)(2). Courts have held that written reports are not required for treating physicians whose testimony and opinions derive from information learned during actual treatment of the patient, rather than from subsequent evaluation as a specially retained expert. See Phillips v. Occidental Chemical Corp., No. Civ.A. 99-828, 2000 WL 1092857, at *2 (E.D. La. Aug. 2, 2000) (citing authorities). The Court will not strike plaintiff's treating physicians based on plaintiff's failure to provide written reports. Plaintiff's treating physicians may testify, however, only about the actual treatment they rendered to plaintiff and opinions derived directly therefrom. In addition, plaintiff must produce all of his medical treatment record to defendants. The Court will cure any potential prejudice to defendant by permitting defendant to obtain a medical expert and ordering plaintiff to make himself available for evaluation by defendant's expert. Defendant is also authorized to depose plaintiff's treating physicians any time before the start of trial.
Second, the Federal Rules of Civil Procedure commit to the court's discretion the decision of whether to exclude evidence because of a party's noncompliance with a pretrial scheduling order. FED. R. CIV. P. 16(f), 37(b)(2)(B). The Fifth Circuit has held that the trial court should consider the following four factors when deciding whether to exclude evidence to enforce a pretrial order: (1) the explanation, if any, for the party's failure to comply with the scheduling order; (2) the prejudice to the opposing party; (3) the possibility of curing such prejudice by granting a continuance; and (4) the importance of the witnesses and exhibits. See Barrett v. Atlantic Richfield, Co., 95 F.3d 375, 380 (5th Cir. 1996); Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990). Here, the Court finds that the factors weigh in favor of accepting plaintiff's witness and exhibit lists, which plaintiff filed four days after the deadline. Plaintiff's counsel explains that he underwent surgery on December 16, 2004, that his recovery took longer than anticipated, and that he was awaiting discovery from another defendant to complete the list of witnesses. Defendant does not argue, and the Court does not find, that defendant has been prejudiced by the four-day delay. Plaintiff's witnesses and exhibits are significant to his case. Because the factors weigh against excluding the evidence, the Court declines to strike or exclude plaintiff's witnesses and exhibits.
For the foregoing reasons, defendant's motion to strike is DENIED. The Court ORDERS that plaintiff make himself available for evaluation by defendant's expert, should defendant wish to perform an examination. The Court further ORDERS that plaintiff produce all of his medical treatment records and that defendants may depose plaintiff's treating physicians at any time before the start of trial.