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Smith v. Auto-Owners Insurance Co.

United States District Court, D. New Mexico

January 12, 2018

MELVIN SMITH and STAN FOWLER, Plaintiffs, [1]



         THIS 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.

         This 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. [Doc. 104-2].

         Accordingly, 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.

         Defendant's 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 Conference.


         Federal 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 Cir. 1999)).

         Under 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 amendment.

         “Under 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”).

         I. Defendant's request to preclude Plaintiff's treating providers from offering expert testimony will be granted.

         Defendant 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.

         A. 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).

         Plaintiff 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(a)(2)(B).” D.N.M.LR-Civ. 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 superfluous.

         Plaintiff 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).

         B. Plaintiff did not disclose any treating provider under ...

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