Opinion
CIVIL ACTION NO. 03-1860, SECTION "K" (3)
March 19, 2004
Richard A. Tonry, for Plaintiff
James B. Mullaly, for Defendants
MINUTE ENTRY
This status conference was called to discuss defendants' Motion to Strike Plaintiffs Witnesses and Exhibits (Rec. Doc. 14) which moved the Court to strike (1) plaintiffs witness referred to as "Jimmy" and (2) all physician witnesses (3) all medical report and opinion exhibits. Plaintiff having agreed not to call witness "Jimmy," the Court focused on the admission at trial of medical witnesses and exhibits.
Defendant contends, correctly, that plaintiff failed to disclose the names of treating physicians and other medical witnesses pursuant to Federal Rule of Civil Procedure 26. Rule 26 regulates the disclosure of expert witnesses:
(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence. (B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is 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, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. (C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1).
Fed.R.Civ.Pro. 26(a)(2). In the instant matter, plaintiff failed to obtain and deliver to defendant the written reports of experts who may be witnesses by the December 10, 2003 deadline imposed by this Court in its August 29, 2003 Minute Entry (Rec. Doc. 5). Furthermore, plaintiff neglected to specifically identify treating physicians and health care providers in her January 9, 2004 Witness and Exhibit List (Rec. Doc. 7) pursuant to this Court's Order. Rather, plaintiff's Witness and Exhibit List referred generally to "[a]ny and all physicians who have treated the plaintiff" and "[p]laintiff's medical records and bills." Defendants did not receive any discovery relative to plaintiff's medical treatment until February 6, 2004.
The Court finds that plaintiff has failed to satisfy the provisions of Rule 26 in regard to expert medical testimony. Sufficient time to depose plaintiffs medical experts or meaningfully analyze their opinions before trial does not exist. Thus, to permit plaintiff to submit medical expert testimony at trial would, indeed, prove unduly prejudicial to defendants. On the other hand, defendants request to exclude plaintiff's medical evidence in its entirety is without merit. Although plaintiffs January 9, 2004 Witness and Exhibit list was formally deficient in that it failed to specifically list and describe medical evidence, it did serve to put defendant on notice that plaintiff intended to present medical testimony and treating health care providers at trial. Consequently, defendant would not be significantly prejudice by plaintiff presenting treating physicians as fact witnesses at trial. Therefore, the Court shall allow the admission of medical professionals as fact witnesses and medical exhibits that do not convey expert medical opinion. Accordingly, for reasons stated above,
IT IS ORDERED that defendants' Motion to Strike Plaintiff's Witnesses and Exhibits (Rec. Doc. 14) is hereby GRANTED IN PART and DENIED IN PART.