United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant Auto-Owners Insurance
Company's Global Motion In Limine [Doc. 139],
filed on December 4, 2017. Briefing is complete. [Docs. 140,
141]. Oral argument is not necessary because the motion can
be decided on the briefs. Having considered the briefing,
record, and the relevant law, the Court finds that the motion
is well-taken and will be granted in part. Ruling is reserved
on Defendant's request to exclude any “theories of
liability not pleaded in Plaintiff's Complaint and
outside the Scope of Phase 1.” Otherwise, the motion
will be granted.
motion centers on whether Plaintiff adequately disclosed his
treating medical providers as experts, and if not, whether
they should be precluded from offering expert testimony at
trial. Plaintiff did not disclose any of his treating
providers as experts in his initial disclosures. See
[Doc. 139] at 1-2, [Doc. 139-1]. Nor did he disclose any of
them as experts in the Joint Status Report. [Doc. 12]. Nor
did he include any of them in his expert witness disclosure.
Defendant moves to exclude any testimony from Plaintiff's
treating medical providers that exceeds the scope of Federal
Rule of Evidence 701 (Opinion Testimony by Lay Witnesses).
The Court agrees. The treating providers were not disclosed.
The lack of disclosure was neither justified nor harmless.
The treating providers may not offer testimony or other
evidence that exceeds the scope of Fed.R.Evid. 701.
remaining requests for exclusion will be granted except as to
“theories of liability not pleaded in Plaintiff's
Complaint and outside the Scope of Phase 1;” on that
request, the Court reserves ruling until the Pretrial
Rule of Civil Procedure 26(a)(2)(A) requires parties to
“disclose . . . the identity of any witness it may use
at trial to present evidence under Federal Rule of Evidence
702, 703, or 705.” Fed.R.Civ.P. 26(a)(2)(A). Under the
rules, expert disclosures must be in writing, signed by
counsel, and served on opposing counsel. Fed.R.Civ.P.
26(a)(4). If the court instates a delivery deadline for
expert disclosures, the rules impose stiff penalties for
noncompliance- namely, failure to adhere with Rule 26(a)
disclosure requirements will prevent a party from using such
evidence at trial unless the failed disclosure was harmless
or substantially justified. Fed.R.Civ.P. 37(c)(1). In
exercising its “broad discretion” to determine
whether a Rule 26 violation is justified or harmless, the
court considers “(1) the prejudice or surprise to the
party against whom the testimony is offered; (2) the ability
of the party to cure the prejudice; (3) the extent to which
introducing such testimony would disrupt the trial; and (4)
the moving party's bad faith or willfulness.”
Jacobsen v. Deseret Book Co., 287 F.3d 936, 953
(10th Cir. 2002) (quoting Woodworker's Supply, Inc.
v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th
Rule 26 a party must disclose any individual who
plans to provide expert testimony, regardless of whether the
individual is retained or specially employed. See
Fed. R. Civ. P. 26(a)(2)(A). The distinction between expert
witnesses and expert witnesses retained or specially employed
is the written report requirement, not the disclosure
requirement. See Rule 26(a)(2)(A)-(B). As succinctly
explained by the Seventh Circuit in Musser v. Gentiva
Health Servs., “all witnesses who are to
give expert testimony under the Federal Rules of Evidence
must be disclosed under Rule 26(a)(2)(A); [but] only those
witnesses ‘retained or specially employed to
provide expert testimony' must submit an expert
report complying with Rule 26(a)(2)(B).” 356 F.3d 751,
756-57 (7th Cir. 2004) (quoting Fed.R.Civ.P. 26(a)(2)(B));
accord Farris v. Intel Corp., 493 F.Supp.2d 1174,
1179-80 (D.N.M. 2007); Blodgett v. United States,
2008 U.S. Dist. LEXIS 35804, at *14, 2008 WL 1944011, at *5
(D. Utah May 1, 2008) (unpublished); Wirtz v. Kan. Farm
Bureau Servs., Inc., 355 F.Supp.2d 1190, 1211 (D. Kan.
2005); Fed.R.Civ.P. 26 advisory committee's note to 1993
Tenth Circuit law, treating physicians not disclosed as
experts are limited to testimony based on personal knowledge
and may not testify beyond their treatment of a
patient.” Witherspoon v. Navajo Refining Co.,
L.P., 2005 U.S. Dist. LEXIS 46148, 2005 WL 5988650, at
*2 (D.N.M. June 28, 2005) (explaining that because the
plaintiffs did not disclose their treating physician as an
expert, the physician “may not provide testimony beyond
what she perceived or did . . . [a]s such, any causation
opinions drawn by [the doctor] are excluded”).
Defendant's request to preclude Plaintiff's treating
providers from offering expert testimony will be
argues that Plaintiff failed to disclose any treating
provider under Fed.R.Civ.P. 26(a)(2)(C), and therefore, no
treating provider should be permitted to testify beyond the
scope of Fed.R.Evid. 701. The Court agrees.
Local Rule 26.3(b) and (c) are not applicable here and do not
relieve Plaintiff of his disclosure obligation under Federal
Rule of Civil Procedure 26(a)(2)(C).
argues that he was not required to disclose any treating
provider under Fed.R.Civ.P. 26(a)(2)(C) because D.N.M.LR-Civ.
26.3(b) exempts treating providers. [Doc. 140] at 2.
Plaintiff is incorrect. Under the Local Rules,
“[t]reating physicians need not prepare an expert
report as required by Fed.R.Civ.P.
26.3(b) (emphases added). The Local Rule exempts treating
physicians from having to provide a written expert
report under Fed. R. Civ. P
26(a)(2)(B); it does not exempt
them from having to be adequately disclosed under
Fed.R.Civ.P. 26(a)(2)(C). Besides,
reading the local and federal rules as Plaintiff suggests
would render subsection (a)(2)(C) of Federal Rule 26
additionally seems to argue that Local Rule 26.3(c) relieved
him of the duty to disclose his treating providers as experts
under Fed.R.Civ.P. 26(a)(2)(C). [Doc. 140] at 2, 6. Under
this Local Rule, “[w]hen required disclosures have
previously been made in the Joint Status Report . . ., the
required disclosures pursuant to Fed.R.Civ.P. 26 may
incorporate portions of the Joint Status Report.”
D.N.M.LR-Civ. 26.3(c). By its plain language, the rule in
irrelevant here. Moreover, in the Joint Status Report, [Doc.
12], Plaintiff did not identify any of Plaintiff's
treating providers as experts or otherwise satisfy the
disclosure requirement of Fed.R.Civ.P. 26(a)(2)(C).
Plaintiff did not disclose any treating provider under