Opinion
CIVIL NO.: 1:15cv414-HSO-JCG
07-20-2017
RONALD STAFFORD PLAINTIFF v. GOVERNMENT EMPLOYEES INSURANCE COMPANY and LAMORAK INSURANCE COMPANY f/k/a ONE BEACON AMERICA INSURANCE COMPANY DEFENDANTS
ORDER GRANTING DEFENDANT LAMORAK INSURANCE COMPANY'S FIRST MOTION IN LIMINE [72]
BEFORE THE COURT is the First Motion in Limine [72] filed by Defendant Lamorak Insurance Company f/k/a One Beacon America Insurance Company ("Lamorak") to limit the testimony of Dr. James Tran ("Dr. Tran") at trial. Plaintiff Ronald Stafford ("Plaintiff") filed a Response [83] and supporting Memorandum [81] in opposition on June 26, 2017.
After Plaintiff filed the Response [83] and supporting Memorandum [81] and the deadline to file a response had run, Plaintiff filed a Supplemental Memorandum in Opposition [102] on July 7, 2017, without obtaining leave of Court to do so. Plaintiff's Supplemental Memorandum in Opposition [102] will not be considered by the Court in deciding the instant Motion in Limine [72], and the Court finds that it should be stricken from the record for failure to comply with Local Uniform Civil Rule 15.
Upon review of the record and relevant legal authority, the Court finds that the First Motion in Limine [72] should be granted as set forth herein. Plaintiff's treating physician Dr. Tran will be permitted to testify at trial as to his opinions arising from his treatment of Plaintiff that are contained in those of Plaintiff's medical records produced during discovery or expressed during his deposition. However, Dr. Tran will not be permitted to offer opinion testimony that is not based on his personal knowledge of the examination and treatment of Plaintiff. Plaintiff also may not introduce reports produced in anticipation of litigation by Dr. Tran that were not disclosed to Defendants prior to the close of discovery.
I. BACKGROUND
On September 10, 2015, Plaintiff Ronald Stafford filed a Complaint [1-2] in the Circuit Court of Pearl River County, Mississippi, alleging that he was injured as a result of a motor vehicle collision that took place on September 13, 2012. See Compl. [1-2]. The case was removed to this Court on November 11, 2015, on the basis of diversity jurisdiction. Not. of Removal [1].
According to the Complaint [1-2], Plaintiff was driving a vehicle owned by his employer, Pearl River County, Mississippi, when he was rear-ended by another vehicle. Compl. [1-2] at 3. Plaintiff alleges that, at the time of the collision, he was the owner of an underinsured motorist policy issued by Defendant Government Employees Insurance Company ("GEICO"). Id. at 4. Plaintiff claims that the vehicle he was driving was insured by One Beacon Insurance Company, now known as Defendant Lamorak, whose policy included underinsured motorist coverage. Id. Plaintiff now seeks to recover underinsured motorist coverage benefits from Defendants GEICO and Lamorak. Id. at 5-6.
Plaintiff's Complaint [1-2] also advanced claims of negligence against Mallorie Hudson-Kline Ory ("Ory"), the driver of the other vehicle, as well as claims for underinsured motorist coverage from Atlantic Specialty Insurance Company ("Atlantic"), OBI National Insurance Company ("OBI"), and "Unknown Insurance Companies 1-5," which may have insured the vehicle Plaintiff was driving. Compl. [1-2] at 6-7. Atlantic, OBI, "Unknown Insurance Companies 1-5," and Ory were subsequently dismissed from this action pursuant to the Joint Stipulation of Dismissal [34] entered on April 6, 2016.
Shortly before the discovery deadline of November 7, 2016, Plaintiff represented that he had begun seeing a new physician who was recommending surgery to treat his injuries. See Joint Mot. for Extension [58] at 2. In light of this new development, the parties jointly sought an extension of discovery deadlines and a continuance of the trial date. Id. The Court granted a continuance and extended the deadlines for the designation of expert witnesses related to Plaintiff's new medical treatment until December 16, 2016, and the discovery deadline until February 1, 2017. See Text Order Nov. 8, 2016.
On December 16, 2016, Plaintiff's new, amended expert designation deadline, Plaintiff designated Dr. Tran as a non-retained expert and treating physician whose testimony would encompass the following:
Dr. Tran will testify to his medical treatment and clinical evaluations of Ronald Stafford, as well as to the results of diagnostic testing and therapeutic treatment, if any, performed on Mr. Stafford as ordered by Dr. Tran, as a result of the September 13, 2012 motor vehicle accident . . . Dr. Tran will also testify regarding his medical opinion regarding Mr. Stafford's current medical condition and future prognosis of his physical condition, including the following recommendations made [regarding future treatment], the estimated cost of each recommended
procedure, as well as any future recommendations and the associated costs . . .Pl.'s First Amended Expert Desig. [78-1] at 9-10. Plaintiff produced Dr. Tran's Curriculum Vitae and his Clinical Summary [78-2] for Plaintiff's October 31, 2016, office visit on the same date. See id. at 11.
Dr. Tran was deposed on January 23, 2017. Tran Dep. [78-3]. On February 1, 2017, the date of the amended discovery deadline, Plaintiff filed his Second Supplemental Response to Lamorak's Requests for Production indicating that he was expecting a report from Dr. Tran regarding the projected costs of future surgery and medical care. Pl.'s Second Supplemental Response [72-5] at 3. However, no new records from Dr. Tran were produced at that time, and Plaintiff did not seek an extension of the discovery deadline.
On February 17, 2017, over two weeks after the discovery deadline, Plaintiff produced a faxed letter from Dr. Tran summarizing his review of Plaintiff's medical records and referring to a budget estimating future medical costs, which was not included. See Pl.'s Third Supplemental Response [72-6]; Tran Faxed Letter [78-4]. On February 22, 2017, Plaintiff produced a non-faxed report from Dr. Tran that was substantially similar to the faxed letter version, and which also did not include the cost estimate for future medical treatment. See Tran Report [78-5]. On May 22, 2017, two and a half months after the discovery deadline, Plaintiff produced a Care and Maintenance Budget [78-6] estimating costs of future surgery and follow-up care that was intended to accompany Dr. Tran's Report [78-5].
Lamorak filed its First Motion in Limine [72] on June 12, 2017, seeking to limit Dr. Tran's testimony at trial to that contained in his medical records and given at his January 23, 2017, deposition. Mot. [72] at 2. Lamorak argues that Plaintiff is improperly attempting to introduce reports produced in anticipation of litigation by Dr. Tran, who was designated as a non-retained medical expert and treating physician under Federal Rule of Civil Procedure 26(a)(2)(C), rather than as a retained expert under Rule 26(a)(2)(B) who would have greater license in his testimony. Id. at 1-2.
GEICO has joined in Lamorak's First Motion in Limine [72]. Joinder [80]. --------
Lamorak also complains that, as Plaintiff only began to produce these reports after the deposition of Dr. Tran and after the amended discovery and Daubert deadlines had passed, such supplementation of Plaintiff's prior disclosures is untimely. Id. at 2; Def.'s Mem. Supp. Mot. [73] at 8.
II. DISCUSSION
A. Relevant Legal Authority
Lamorak asks the Court to limit Dr. Tran's testimony on grounds that Plaintiff failed to designate him as an expert witness under Federal Rule of Civil Procedure 26(a)(2)(B) and that, as a treating physician, he should be limited to testifying concerning that treatment of Plaintiff documented in Dr. Tran's medical records. See Def.'s Mem. Supp. Mot. [73] at 3.
Federal Rule of Civil Procedure 26(a)(2)(B), which requires disclosures of retained or specially employed experts to be accompanied by written reports, does not apply to witnesses who are not specially employed or retained to provide expert testimony, including a party's treating physicians. Mitchell v. City of Gulfport, No. 101cv449-LG-RHW, 2005 WL 3116071, at *2 (S.D. Miss. Nov. 18, 2005). Instead, expert witnesses who are not required to produce a written report, including treating physicians, must submit only a disclosure stating: 1) the subject matter on which the witness is expected to testify under Federal Rules of Evidence 702, 703, and 705; 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).
As such, the testimony of a treating physician who is not designated as a retained expert is limited to those facts and opinions based on the physician's medical records and his personal treatment of the party. See, e.g., Duke v. Lowe's Home Ctrs., Inc., No. 1:06cv207-P-D, 2007 WL 3094894, at *1 (N.D. Miss. Oct. 19, 2007) ("without the requisite expert designation and compliance with the requirements of F.R.C.P. 26(a)(2)(B), [treating physicians'] testimony is necessarily limited to those facts and opinions contained in plaintiff's medical records"); Mitchell, 2005 WL 3116071, at *2 ("[T]estimony is limited in scope to the opinions contained in written expert reports or in the physicians' office records."); Knorr v. Dillard's Store Servs., Inc., No. 04-3208, 2005 WL 2060905, at *3 (E.D. La. Aug. 22, 2005) (holding that written report was not required for "a treating physician whose testimony and opinions derive from information learned during actual treatment of the patient, rather than from subsequent evaluation as a specially retained expert"); Lowery v. Spa Crafters, Inc., No. SA-03-CA-0073-XR, 2004 WL 1824380, at *2 (W.D. Tex. Aug. 16, 2004) (the treating physician exception is "limited to facts and circumstances developed during the care of the patient").
The treating physician's knowledge may include "information about the future surgeries and disabilities . . . learned from this doctor's treatment of the plaintiff." Boudreaux v. J.P. Morgan Chase & Co., No. 07-555, 2007 WL 4162908, at *2 (E.D. La. Nov. 21, 2007). "Conversely, where a treating physician has prepared his opinions in anticipation of litigation or relies on sources other than those utilized in treatment, courts have found that the treating physician acts more like a retained expert and must comply with Rule 26(a)(2)(B)." Kim v. Time Ins. Co., 267 F.R.D. 499, 502 (S.D. Tex. 2008). B. Analysis
1. Regardless of whether Dr. Tran is considered to be a retained expert or non-retained treating physician, the disclosure of his Report [78-5] and Care and Maintenance Budget [78-6] was untimely.
Regardless of whether an expert witness is a retained expert who must provide an expert report under Rule 26(a)(2)(B), or a non-retained expert who must submit only the disclosure required by Rule 26(a)(2)(C), Rule 26(a)(2)(D) provides that "[a] party must make these disclosures at the times and in the sequence that the court orders." FED. R. CIV. P. 26(a)(2)(D). Rule 26(e)(1) further provides that parties must supplement their disclosures or discovery responses if they learn that a prior response was incomplete or incorrect and the additional corrective information had not otherwise been made known to the other parties during the discovery process. FED. R. CIV. P. 26(e)(1). Any such supplementation must be made "in a timely manner." Id.
Plaintiff's amended expert designation deadline was December 16, 2016, the extended discovery deadline was February 1, 2017, and the deadline to file Daubert and dispositive motions was February 15, 2017. See Text Order Nov. 8, 2016. Dr. Tran's Report [78-5] and Care and Maintenance Budget [78-6] were provided to Lamorak on February 17, 2017, and May 22, 2017, respectively. Neither were produced until after the amended expert designation deadline, the amended discovery deadline, and the Daubert and dispositive motion deadline had already passed, and after Dr. Tran's deposition had already been taken. Although the Federal Rules of Civil Procedure and the Local Uniform Civil Rules provide for supplementation of disclosures, supplementation must occur "in no event later than the discovery cut-off established by the case management order," which was February 1, 2017. L.U. CIV. R. 26(a)(5). Regardless of whether Dr. Tran should be considered a retained or a non-retained expert, the disclosure of these additional opinions was untimely.
There is no dispute, and the Court finds, that Dr. Tran may testify as to the facts and opinions contained within those of his records concerning his treatment of Plaintiff that were timely produced. See Bunch v. Metro. Cas. Ins. Co., No. 5:10cv104-DCB-JMR, 2011 WL 1304459, at *2 (S.D. Miss. Apr. 6, 2011) (limiting treating physician's testimony those opinions expressed in medical records); Lee v. Valdez, No. 3:07cv1298-D, 2008 WL 4287730, at * 3 (N.D. Tex. Sept. 18, 2008) (concluding that "district courts in this circuit have generally concluded that the treating-physician exception applies only to opinion testimony based on the physician's personal knowledge of the examination and treatment of the party.").
The Court finds that Dr. Tran was designated as a treating physician, and that some of the late reports disclosed by Plaintiff amount to material prepared in anticipation of litigation that falls outside the scope of his designation. Dr. Tran will not be permitted to testify as to any opinions that were formed in anticipation of litigation or are based on subsequent evaluation of information acquired from outside sources, as opposed to being formed through the course of his treatment of Plaintiff. See Knorr, 2005 WL 2060905, at *3 ("treating physicians may testify only about the actual treatment they rendered to plaintiff and opinions derived directly therefrom"). This includes any opinions expressed in Dr. Tran's Report [78-5] and Care and Maintenance Budget [78-6] that are not contained in those of his medical records produced before the discovery deadline and that were not disclosed to Defendants by the discovery deadline.
2. Dr. Tran was not timely designated as a retained expert, and a continuance of the trial to allow Defendants to prepare for previously undisclosed testimony of Dr. Tran is not warranted.
To the extent Dr. Tran's new opinions constitute those of a retained or specially employed expert under Rule 26(a)(2)(B), any designation of Dr. Tran as a retained expert at this point would be untimely. Regardless of whether Dr. Tran is considered a retained or non-retained expert, in determining whether to exclude Dr. Tran's contested testimony on grounds that he was not timely designated as a retained expert or his reports were not timely disclosed, the Court considers four factors: (1) the explanation given for failing to identify the witness; (2) the importance of the witness' testimony; (3) the potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure any prejudice. Hamburger v. State Farm Mut. Auto Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (citing Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)).
As to the fust factor, Plaintiff argues that he did not designate Dr. Tran as a retained expert because he was instead properly designated as a non-retained medical expert and treating physician who was not required to produce a written report. Pl.'s Mem. Opp'n to Mot. [81] at 5. However, regardless of whether Dr. Tran should be considered a retained or a non-retained expert, Plaintiff offers no justification for his failure to produce Dr. Tran's Report [78-5] and itemization of costs until after Dr. Tran's deposition and after the close of discovery, and without obtaining leave of Court for a late or untimely supplementation. Plaintiff only states that "the records were disclosed to the Defendants as soon as they became available to the Plaintiff. As such, any potential disclosure violation is harmless and substantially justified." Id. at 9. The Court finds that this statement is insufficient to justify Plaintiff's failure to comply with the extended deadlines established by the Court. This factor favors striking any opinions that were not contained in Dr. Tran's medical records that were not produced during his deposition or before the discovery deadline.
With respect to the second factor, even assuming arguendo that Dr. Tran's previously undisclosed opinions, such as his itemization of future medical costs, are essential to Plaintiff's claims, "the importance of proposed testimony cannot 'singularly override the enforcement of local rules and scheduling orders.'" Hamburger, 361 F.3d at 883 (quoting Geiserman, 893 F.2d at 792). Nor has Plaintiff attempted to explain why these items could not have been provided sooner. This factor weighs against allowing Dr. Tran to testify to opinions that were not contained in his medical records disclosed during discovery.
The third factor, potential prejudice, weighs in favor of Defendants. Plaintiff argues that "Defendants had the opportunity to question Dr. Tran about the previously disclosed topics of his anticipated testimony, including the costs of surgery, but failed to do so." Pl.'s Mem. Opp'n to Mot. [81] at 8. However, Dr. Tran's medical records produced to Defendants during discovery did not include any opinion as to the itemized costs of future surgery and follow-up care. See Hamburger, 361 F.3d at 883 (recognizing that the defendant was prejudiced where the medical records did not address causation and did not alert the defendant that the physician may give expert opinion on that subject). Further, Plaintiff's argument on this point constitutes an effort to improperly shift the burden of disclosure from Plaintiff, upon whom it was cast as proponent of the testimony, to Defendants.
Lastly, though a continuance might cure some of the prejudice to Defendants by allowing additional time to depose Dr. Tran again or to obtain a rebuttal witness, it would occasion a not insignificant delay of the trial and would also result "in additional delay and increase[ ] the expense of defending the lawsuit." Id. (quoting Geiserman, 893 F.2d at 792). Plaintiff's accident occurred in 2012 and this case has been pending since 2015. The deadline for Plaintiff to designate expert witnesses has been extended twice at Plaintiff's request. See Pl.'s Mot. to Extent Expert Deadlines [35]; Joint Mot. for Extension [58]. Trial has already been delayed twice, and this case is the oldest case set for trial on the Court's next trial calendar, which begins August 7, 2017. The most recent continuance, although styled as a joint request, was in fact occasioned by Plaintiff's desire to make a late disclosure of Dr. Tran. See Joint Mot. for Extension [58]; Text Order Nov. 8, 2016. Plaintiff has offered no persuasive explanation for why Dr. Tran's Report [78-5] and itemization of costs could not have been prepared prior to Dr. Tran's deposition.
When the other factors weigh against permitting testimony, a district court is not required to continue a trial. Id. at 883-84. "Otherwise, the failure to satisfy the rules would never result in exclusion, but only in a continuance. Because of a trial court's need to control its docket, a party's violation of the court's scheduling order should not routinely justify a continuance." Id. at 884. Based on the facts and circumstances of this case, the Court finds that a continuance of the trial to allow Defendants to prepare for previously undisclosed testimony of Dr. Tran is not warranted and is not sufficient to override the other factors the Court must consider.
Based upon the foregoing, Lamorak's First Motion in Limine [72] should be granted. The testimony of Dr. Tran will be restricted to only such testimony, facts, and/or opinions that are contained in Plaintiff's medical records produced during discovery and expressed during his deposition.
III. CONCLUSION
The Court concludes that Defendant Lamorak's First Motion in Limine [72] should be granted. Counsel for Plaintiff is instructed to inform their witness of the Court's rulings and his obligations to abide by the limitations set forth in this Order.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the First Motion in Limine [72] filed by Defendant Lamorak Insurance Company f/k/a One Beacon America Insurance Company is GRANTED. The testimony of Plaintiff's designated treating physician Dr. Tran will be limited to the facts and opinions contained in those of his own medical records produced prior to the discovery deadline of February 1, 2017, and given at his deposition. To the extent that Dr. Tran's testimony exceeds the scope of his treatment of Plaintiff, and ventures into more general expert testimony formed for the purposes of this litigation, such testimony is also not appropriate and will be excluded upon specific objection by Defendants.
SO ORDERED AND ADJUDGED, this the 20th day of July, 2017.
/s/_________
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE