Opinion
Case No. 04 C 50422.
January 13, 2006
MEMORANDUM OPINION AND ORDER
This matter is before the court on Defendants' December 2, 2005 Motion for Rule 37 Sanctions for Failure to Comply with Rule 26 of the Federal Rules of Civil Procedure. For the reasons stated below, Defendants' Motion is denied.
Defendants attempted to file a Motion for Rule 37 Sanctions on November 4, 2004, but mistakenly e-filed the wrong Motion. As such, the court strikes Defendants' November 4, 2004 Motion (Docket Entry # 30).
I. History
Terri Crandall ("Plaintiff") filed a three count Second Amended Complaint on October 28, 2005, alleging violations of the Family and Medical Leave Act ("FMLA"), her due process rights, and an invasion of her privacy by Jo Daviess County, Glen R. Weber, in his personal and official capacity, and the Office of Jo Daviess County States Attorney ("Defendants"). Generally, the Complaint alleges that while Plaintiff was an employed as an executive secretary in the State's Attorney's Office of Jo Daviess County, Glen Weber wrongfully refused her requests for leave under the FMLA, vacation benefits, sick leave, and leave without pay. Plaintiff also alleges that Glen Weber harassed her when she could not work, wrote to her physician to learn of her medical condition, demanded she submit to another medical examination at the County Law Enforcement Center, and terminated her when she refused to disclose her medical condition without a pre-termination hearing. Finally, Plaintiff alleges that Glen Weber wrongfully terminated her medical insurance when he received her physician's statement indicating she would be unable to work for thirty days.
The parties in this case have completed discovery, and Defendants' Motion for Summary Judgement is pending before the District Court. However, problems with expert discovery have brought this case back to the attention of the Magistrate. On the due date set for expert disclosures in this case, September 30, 2005, Plaintiff disclosed Dr. Michelle M. Sprengelmeyer as a Rule 26(a)(2) expert. Dr. Sprengelmeyer was previously disclosed by Plaintiff as a fact witness and was Plaintiff's treating physician from September, 1997 through August, 2004.
Defendants, dissatisfied with Plaintiff's expert disclosures, have moved to bar Dr. Sprengelmeyer's testimony on two different theories. On November 4, 2004, Defendants filed a Daubert Motion to Bar Plaintiff's expert, which is currently before the District Court. On December 2, 2005, Defendants filed the Motion for Sanctions at issue here. Defendants move the court to enter an Order barring Dr. Sprengelmeyer from testifying at trial as an expert because they believe Plaintiff's expert disclosures fail to comply with Rule 26(a)(2).
In support of their December 2, 2005 Motion, Defendants state that Plaintiff's expert disclosures fail to comply with Rule 26(a)(2) because they do not: (1) offer any explanation or basis for Dr. Sprengelmeyer's diagnosis of Plaintiff's situational depression; (2) proffer the analysis or testing used to reach Dr. Sprengelmeyer's diagnosis; (3) reveal if any tests were conducted on Plaintiff; (4) identify what factors Dr. Sprengelmeyer used to form her opinion; (5) define situational depression; (6) list the compensation to be paid to Dr. Sprengelmeyer; and (7) list the cases in which Dr. Sprengelmeyer has testified as an expert. (Def.s' Mtn., at 3).
Plaintiff urges the court to deny Defendants' Motion because it fails to comply with Local Rule 37.2, and because she believes any shortcomings in the report have been remedied by her supplemental report. Plaintiff also states that it is doubtful that Rule 26 even requires written reports from treating physicians who serve as experts under Seventh Circuit case law, citing Musser v. Gentiva Health Servs., 356 F.3d 751 (7th Cir. 2004).
In Reply, Defendants protest Plaintiff's attempt to correct defects in her expert disclosures by producing a supplemental report without leave of court, stating that it would be unjust and prejudicial to allow a supplement after all discovery is closed and the Defendants' dispositive motion has been fully briefed. It is unclear whether Defendants believe Plaintiff's supplemental report actually corrects the defects prompting their Motion.
II. Analysis
The requirements for disclosure of treating physicians under Rule 26 are frequently litigated. Whether or not a Rule 26(a)(2) expert report is required for a treating physician depends upon the subject matter of the testimony to be offered by the physician. See Patel v. Gayes, 984 F.2d 214, 217 (7th Cir. 1993). Generally, an expert "must be identified if his testimony does not come from his personal knowledge of the case, or if his knowledge was `acquired or developed in anticipation of litigation or for trial.'" Id. at 218 (citations omitted).
Here, the court does not know the substance of the testimony Plaintiff intends to elicit from Dr. Sprengelmeyer. Presumably, Plaintiff wishes to preserve the opportunity for Dr. Sprengelmeyer to offer testimony as a Rule 26(a)(2) expert because Plaintiff had Dr. Sprengelmeyer prepare an expert report and disclosed her as a Rule 26(a)(2) expert. Thus, the issue before this court is not whether Rule 26(a)(2) disclosures are required for Dr. Sprengelmeyer to testify, but whether Plaintiff's Rule 26(a)(2) disclosures are adequate or must be struck for failure to comply with Rule 26.
A. Plaintiff's Supplemental Report
Before the court can reach the issue of adequacy, the court must decide if it will judge the sufficiency of Plaintiff's Rule 26 disclosures based on the initial September 30, 2005 report, or in conjunction with the supplemental report filed when Plaintiff responded to Defendants' Motion for Sanctions. For the reasons below, this court allows Plaintiff's supplemental disclosure and will analyze the combined reports under Rule 26.
First, the court accepts Plaintiff's response that she was unaware that her Rule 26(a)(2) disclosures were deficient until Defendants filed their Motion. There is no evidence of bad-faith or intent to cause delay present in the record.
Second, there is no prohibition on supplementing expert disclosures. In fact, Subsections (a)(2)(C) and (e)(1) of Rule 26 explicitly require that an expert's disclosure be supplemented if there are any modifications or additions to the information previously disclosed. Walsh v. McCain Foods Ltd., 81 F.3d 722 (7th Cir. 1996).
Third, Defendants have failed to establish how allowing Plaintiff to supplement her report would result in prejudice. The fact that Defendants' dispositive motion is fully briefed before the District Court does not establish prejudice on its own, and Defendants fail to explain how Plaintiff's supplemental report even relates to the pending Motion for Summary Judgment. The fact that discovery has closed also does not establish prejudice. If Defendants have cause to re-open discovery or need to take a deposition because of the supplemental disclosure, this court can entertain that Motion and allow any appropriate discovery. Finally, the court notes that dates have not been set for a Final Pre-trial Conference or Order, so Defendants cannot claim surprise on the eve of trial.
B. Sufficiency of Plaintiff's Expert Disclosures
Having found that Plaintiff's initial expert disclosures should be considered in conjunction with her supplemental report, the court turns to the sufficiency of Plaintiff's expert disclosures under Federal Rule of Civil Procedure 26(a)(2). Such disclosures:
shall 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.
Fed.R.Civ.P. 26(a)(2)(B). Expert disclosures must be sufficiently detailed and complete so as to avoid unfair surprise and to conserve resources. Salgado v. General Motors Corp., 150 F.3d 735, 741 n. 6 (7th Cir. 1998). If a party fails to comply with Rule 26 disclosure requirements, the court has authority to strike the party's expert as a sanction. Fed.R.Civ.P. 37; Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d 1290, 1292 (7th Cir. 1988).
In this case, Dr. Sprengelmeyer's September 30, 2005 disclosure was accompanied by a written report prepared and signed by Dr. Sprengelmeyer and Dr. Sprengelmeyer's curriculum vitae. The initial report contains Dr. Sprengelmeyer's statement of her opinion that Plaintiff was suffering from "situational depression" and "a serious medical condition" on July 23, 2004, and that Plaintiff was "unable to work for 30 days." Dr. Sprengelmeyer based her opinion on her assessment of Plaintiff and her educational experience. The report summarizes Dr. Sprengelmeyer's assessment of Plaintiff, focusing on her July 23, 2004 office visit with Plaintiff. The report also summarizes Dr. Sprengelmeyer's treatment recommendations and her experiences with Defendant Glen Weber. Treatment records were attached to the report.
The September report was supplemented on December 19, 2005. The supplement lists Dr. Sprengelmeyer's hourly rate of $250.00 and contains Dr. Sprengelmeyer's statement that she has not previously testified as an expert. The report also provides more detail about the technique Dr. Sprengelmeyer used to diagnose Plaintiff with situational depression. Finally, Dr. Sprengelmeyer states in the report that she has since reviewed another doctor's treatment records for Plaintiff, which show that Plaintiff was diagnosed under the DSM-IV with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Post Traumatic Stress Disorder. More medical records are attached to the report.
It appears to the court that Plaintiff's report and supplement facially meets the requirements set forth in Rule 26. It is a written report, prepared and signed by the witness. It contain a statement of Dr. Sprengelmeyer's opinions to be expressed and the basis and reasons therefor. It lists the information considered by Dr. Sprengelmeyer in forming her opinions and references her treatment records as exhibits in support of her opinions. Dr. Sprengelmeyer's curriculum vitae lists her qualifications, and her supplement lists the compensation she is to be paid. Finally, the report states there are no other cases in which Dr. Sprengelmeyer has testified as an expert.
Because the supplemental report, read together with the initial report, appears to meet the requirements of Rule 26, the court sees no reason to strike the report or bar Plaintiff's expert's testimony as a sanction under Rule 37. Accordingly, Defendants' Motion is denied.
III. Conclusion
For the foregoing reasons, Defendants' December 2, 2005 Motion for Rule 37 Sanctions for Failure to Comply with Rule 26 of the Federal Rules of Civil Procedure is denied.