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Walker v. Spina

United States District Court, D. New Mexico

January 9, 2019

SHIRLEY J. WALKER, Plaintiff,
v.
GREGORY J. SPINA, VALLEY EXPRESS, INC., and GREAT WEST CASUALTY COMPANY, Defendants.

          Shavon M. Ayala Ayala P.C. Albuquerque, New Mexico and Anthony James Ayala Law Offices of Anthony James A. Ayala Albuquerque, New Mexico Attorneys for the Plaintiff

          Allison M. Beaulieu Raul P. Sedillo Butt Thornton & Baehr PC Albuquerque, New Mexico Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Defendants' Motion to Exclude Plaintiff's Expert Witnesses William J. Patterson, III, Keith W. Harvie, D.O. and Dr. Michael Rodriguez, filed July 27, 2018 (Doc. 58)(“Disclosure Motion”), and (ii) the Defendants' Motion to Limit the Testimony of Plaintiff's Treatment Providers and Exclude Improper Expert Testimony, filed August 30, 2018 (Doc. 71)(“Treatment Provider Motion”). The Court held a hearing on November 21, 2018. The primary issues are: (i) whether the Court should prohibit Michael Robert Rodriguez, Ph.D., a licensed clinical psychologist, see Joint Status Report and Provisional Discovery Plan at 8-9, filed January 2, 2018 (Doc. 16)(“Joint Status Report”), from testifying, because Plaintiff Shirley Walker did not disclose that she would call him as an expert witness; (ii) whether the Court should prohibit Dr. Keith W. Harvie, D.O., a medical expert, and William Patterson, III, a legal economics expert, see Joint Status Report at 8, from testifying when Walker disclosed to Defendants Gregory Spina and Valley Express, Inc. that she would call them as expert witnesses in Discovery Responses and the First and Second Initial Disclosures but not in a formal expert witness disclosure; (iii) whether the Court should prohibit Patterson from offering evidence on Walker's cost-of-living expenses, because Walker did not amend the Patterson Report to include information on such costs; and (iv) whether the Court should prohibit expert opinion testimony from Walker's treatment providers -- Dr. Rajan Mirchandani; Dr. Ellen Marder, a physician, see Progress Notes by Ellen Marder at 1 (dated July 7, 2016), filed July 27, 2018 (Doc. 59-5); Dr. Herbert Rachelson, an orthopedic surgeon, see Defendants' Reply in Support of Their Motion to Limit the Testimony of Plaintiff's Treatment Providers and Exclude Improper Expert Testimony at 2, filed September 20, 2018 (Doc. 82)(“Treatment Provider Reply”); Dr. Arjan Khalsa, a chiropractor, see Treatment Provider Reply at 2; Dr. Jean Hamilton, a psychiatrist, see Psychiatric Evaluation by Jean A. Hamilton at 2 (dated March 20, 2017), filed August 4, 2018 (Doc. 62); and Michael Miller, a certified nurse practitioner, see Treatment Provider Motion at 2 -- when Walker identified Dr. Hamilton as a witness, although not an expert witness, in the Answer to Interrogatories, and in the First and Second Initial Disclosures, and the Defendants deposed the treatment providers which Walker will call at trial -- Dr. Rachelson, Dr. Khalsa, Dr. Hamilton, and Miller. Pursuant to Walker's representations, neither Dr. Rodriguez nor Dr. Harvie will testify at trial. The Court, accordingly, will preclude them from testifying. The Court will not exclude Patterson's testimony, because Walker provided the Defendants with the Harvie Report and the Patterson. Based on Walker's representation that Patterson will not testify to her cost-of-living expenses, the Court will exclude such testimony. Finally, because Walker's failure to disclose the treatment providers as expert witnesses is harmless, the Court will not limit the treatment providers' testimony on their diagnoses and their opinions on what caused Walker's injuries.

         FACTUAL BACKGROUND

         The Court recited this case's facts and early procedural history in its Memorandum Opinion and Order at 2-3, 2018 WL 4100944, at *1, filed August 28, 2018 (Doc. 67). The Court incorporates that recitation here. The footnotes in the quotations are in the original.

The Court takes its facts from Walker's Complaint for Personal Injuries and Damages (First Judicial District Court, County of Santa Fe, State of New Mexico), filed December 23, 2016, filed in federal court September 29, 2017 (Doc. 1-1)(“Complaint”). The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that the facts are largely Walker's version of events.
On July 23, 2015, Defendant Gregory J. Spina was speeding on U.S. Highway 84/285 in a commercial vehicle that Defendant Valley Express, Inc. owned. See Complaint ¶¶ 6-7, at 2. As Spina approached a red light, he realized that he was going too fast to brake, so, instead of hitting the vehicles stopped side by side in front of him, he attempted to slip between them. See Complaint ¶ 7, at 2. Rather than avoiding the stopped vehicles, however, he sideswiped both of them, causing both cars to roll into the intersection. See Complaint ¶ 7, at 2-3. Walker was driving one of the sideswiped vehicles and, because of Spina's actions, suffered physical and emotional injuries. See Complaint ¶¶ 7, 11, at 2-4.

MOO at 2, 2018 WL 4100944, at *1.

         PROCEDURAL BACKGROUND

         Walker sues Spina and Valley Express, asserting negligence, [1] and sues Defendant Dixon Insurance Company, asserting that she has a claim for benefits against it under the [New Mexico Financial Responsibility Act, N.M. Stat. Ann. §§ 66-5-201 to 239] and Raskob[v. Sanchez, 1998-NMSC-045, 970 P.2d 580] for injuries that Spina's negligence caused. See Complaint ¶¶ 8-13, at 3-5. Spina and Valley Express removed the case to federal court on the basis of diversity jurisdiction. See Notice of Removal to the United States District Court for the District of New Mexico at 1, filed September 29, 2017 (Doc. 1)(“Notice of Removal”). . . .

MOO at 2-3, 2018 WL 4100944, at *1. The Amended Complaint at 1, filed August 28, 2018 (Doc. 68), terminated Dixon Insurance Company as a Defendant and added, in its place, Great West Casualty Company.

         Walker provided the Defendants the Patterson Report “at or about June 27, 2017.” Disclosure Motion at 1. Walker transmitted the Harvie Report “at or about February 23, 2018, ” see Disclosure Motion at 1, and the Defendants have not received an expert report from Rodriguez, see Disclosure Motion at 1. The Joint Status Report named Patterson, Dr. Harvie, and Rodriguez as expert witnesses for Walker. See Disclosure Motion at 3; Joint Status Report at 8-9. The Order Setting Case Management Deadlines and Discovery Parameters, filed February 1, 2018 (Doc. 21)(“Discovery Order”), set the initial expert disclosure deadline for May 2, 2018. See Disclosure Motion at 2. The Discovery Order, which the Honorable Steven C. Yarbrough, United States Magistrate Judge for the District of New Mexico, entered, states:

[P]arties must disclose the names of all expert witnesses, including treating physicians, the subject matter on which the experts will present evidence, and a summary of the facts and opinions to which the experts are expected to testify by this date. Experts who are retained or specifically employed to provide expert testimony must also submit an expert report by this date. See Fed R. Civ. P. 26(a)(2). The parties must have their retained expert(s) ready to be deposed at the time they identify them and provide their reports. Expert witnesses who are not required to provide a written report may be deposed before summary disclosure.

         Discovery Order at 2 n.2 (quoted in Disclosure Motion at 2). On July 3, 2017, Walker indicated in her Discovery Requests, and in the First and Second Initial Disclosures, that she would call Patterson as an expert on economic damages, and Walker produced the Patterson Report to the Defendants. See Disclosure Response at 1-2. The Defendants deposed Patterson on April 4, 2018. See Disclosure Response at 2. The Defendants also deposed Walker's treatment providers --Dr. Mirchandani, Dr. Marder, Dr. Rachelson, Dr. Khalsa, Dr. Hamilton, Miller, see Treatment Provider Motion at 2, and Dr. Hassemer, Walker's “prior treatment provider and personal friend, ” Treatment Provider Motion at 3. Walker discloses her treatment providers in the Joint Status Report, but she does not identify the treatment providers as “non-retained expert witnesses.” Second Motion at 3. See Joint Status Report at 5. Walker identifies approximately sixteen people who she may call as witnesses. See Treatment Provider Motion at 3.

         1. The Disclosure Motion.

         The Defendants first argue that Walker failed to comply with the Discovery Order and rule 26(a) of the Federal Rules of Civil Procedure. See Disclosure Motion at 2-3. The Defendants complain that, despite the instructions in the Discovery Order and rule 26(a), Walker has disclosed no expert witnesses and sought no discovery deadline extension. See Disclosure Motion at 4. While the Defendants admit that Walker provided the Harvie and Patterson Reports, according to the Defendants, Walker did not disclose whether she intended to use Dr. Harvie's or Patterson's testimony at trial. See Disclosure Motion at 4.

         The Defendants contend that Walker's actions prejudiced the Defendants by creating unnecessary surprise, depositions, and costs, and led the Defendants to believe that Walker would call no expert witnesses at trial; the Defendants argue that Walker's failure either to disclose that she would call Rodriguez or to provide an expert report particularly prejudiced them. See Disclosure Motion at 5. The Defendants depict the prejudice as “incurable, ” because “time is a nonrefundable resource, ” and the Defendants argue that Walker deprived the Defendants of the time and information “to properly prepare for trial.” Disclosure Motion at 5. According to the Defendants, that they have not had time to prepare responses to the experts “will prevent smooth proceeding” and raise “the potential for trial disruption.” Disclosure Motion at 5. Further, the Defendants note, they have not had the information to determine “additional experts which may be necessary for their defense.” Disclosure Motion at 6. The Defendants conclude by noting that Walker has not shown that her “failure to comply with both Rule 26(a)(2)” and the Discovery Order was either “accidental or in good faith.” Disclosure Motion at 6. The Defendants conclude that, accordingly, Walker has not shown that her actions are “substantially justified.” Disclosure Motion at 6.

         2. The Disclosure Response.

         Walker replied on August 4, 2018. See Response to Defendants' Motion to Exclude Plaintiff's Expert Witnesses William Patterson, III, Keith W. Harvie, D.O. and Dr. Michael Rodriguez at 7, filed August 4, 2018 (Doc. 61)(“Disclosure Response”). Walker indicates that she will call neither Dr. Harvie nor Rodriguez at trial, and “will not oppose an order excluding them from testifying at trial.” Disclosure Response at 1. According to Walker, admitting Patterson's testimony at trial will not prejudice the Defendants, because, in her Discovery Requests, and in her First and Second Initial Disclosures, and by providing the Patterson Report, Walker conveyed to the Defendants that she will call Patterson as an expert witness. See Disclosure Response at 1-2. The Defendants, Walker avers, deposed Patterson for two-and-a-half hours, and so Walker's actions have not prejudiced the Defendants. See Disclosure Response at 2.

         3. The Disclosure Reply.

         The Defendants replied on August 30, 2018. See Defendants' Reply in Support of their Motion to Exclude Plaintiff's Expert Witnesses William J. Patterson, III, Keith W. Harvie, D.O., and Dr. Michael Rodriguez at 4, filed August 20, 2018 (Doc. 63)(“Disclosure Reply”). First, the Defendants ask the Court to exclude Dr. Harvie's and Rodriguez' testimony, because Walker does not oppose the exclusion and will call neither expert at trial. See Disclosure Reply at 1. The Defendants continue, explaining that Walker's actions prejudiced them. See Disclosure Reply at 2. The Defendants state that, at Patterson's deposition, the Defendants asked for an amended report, which Walker has not provided, and that the parties “left open” the deposition. Disclosure Reply at 2. Further, according to the Defendants, Walker has noted no reason for not disclosing her experts. See Disclosure Reply at 2. The Defendants also mention that they seek to prevent Walker's “treatment providers from testifying.” Disclosure Reply at 2. The Defendants express concern that, “given her willingness not to call a medical expert, Plaintiff will seek to introduce expert testimony through her treating physicians, including testimony regarding causation.” Disclosure Reply at 3. The Defendants note that, “[b]y failing to file an expert disclosure, Plaintiff failed to disclose the treatment providers she will call at trial.” Disclosure Reply at 3. According to the Defendants, this failure to disclose prejudices the Defendants, and Walker, the Defendants note, has provided no substantial justification for the failure. See Disclosure Reply at 3.

         4.The Treatment Provider Motion.

         The Defendants request that the Court limit testimony from Walker's treatment providers -- Dr. Mirchandani, Dr. Marder, Dr. Rachelson, Dr. Khalsa, Dr. Hamilton, Miller, and Dr. Hassemer, because Walker did not disclose such treatment providers “as expert witnesses.” Treatment Provider Motion at 1. The Defendants note that they raised this argument briefly in their Disclosure Motion and that they expand on this argument in this Treatment Provider Motion. See Treatment Provider Motion at 1. According to the Defendants, Walker “has not filed any expert witness disclosure as required by Rule 26 or the” Discovery Order. See Treatment Provider Motion at 3. The Defendants cite Montoya v. Sheldon, 286 F.R.D. 602 (D.N.M. 2012)(Browning, J.), for the proposition that “Rule 701 of the Federal Rules of Evidence governs treating physician's testimony.” Treatment Provider Motion at 3. A treating physician whom a party has not identified as an expert witness, the Defendants aver, is limited to lay witness testimony, which should be based on the witness' perception and not on “scientific, technical, or other specialized knowledge, ” and which should be “helpful to clearly understanding the witness' testimony or to determining a fact at issue.” Treatment Provider Motion at 3. From this principle, the Defendants conclude that the Court should prohibit the treatment providers from testifying on “the standard of care and causation.” Treatment Provider Motion at 4. See Treatment Provider Motion at 3-4. The Defendants aver that allowing a physician to testify as an expert without disclosure violates Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)(“Daubert”). See Treatment Provider Motion at 4. The Defendants explain that Walker “has not yet declared her intent to have her treatment providers testify as experts, but Defendants anticipate she may attempt to elicit expert testimony at trial.” Treatment Provider Motion at 4. The Defendants request that the Court prohibit the treatment providers from testifying to opinions requiring their “skill and scientific knowledge, ” such as their diagnoses “and their opinions regarding” the causes for Walker's injuries, because, according to the Defendants, diagnoses are expert testimony and testifying to causation “requires knowledge within” rule 702's scope. Response at 4. See Response at 4-5 (citing Montoya v. Sheldon, 286 F.R.D. at 613-14).

         5. The Treatment Provider Response.

         Walker responded on September 6, 2018. See Response to Defendants' Motion to Limit the Testimony of Plaintiff's Treatment on Providers and Exclude Improper Testimony, filed September 6, 2018 (Doc. 77)(“Treatment Provider Response”). Walker admits that “several New Mexico federal cases . . . support not allowing opinion testimony[.]” Treatment Provider Response at 1 (citing Sage-Allison v. Novartis Pharma. Corp., 2014 U.S. Dist. LEXIS 198243, at *20 (D.N.M. Sept. 2, 2014)(Wormuth, J.)). Walker specifies that her treatment providers will limit their testimony to opinions based on their examining and treating Walker, and asks that the Court allow such testimony. See Treatment Provider Response at 2. Walker explains that she provided 2, 800 pages from the treatment providers to the Defendants. See Treatment Provider Response at 2. Walker contends that she named Dr. Hamilton as a witness in her Answer to Interrogatories, and in the First and Second Initial Disclosures, although Walker did not name her in the Joint Status Report. See Treatment Provider Response at 2. Walker further specifies that she will call only Dr. Rachelson, Dr. Khalsa, Dr. Hamilton, and Miller, and that the Defendants deposed Dr. Rachelson on July 20, 2018, Dr. Khalsa on May 15, 2018, Dr. Hamilton on July 27, 2018, and Miller on July 5, 2018. See Treatment Provider Response at 2. According to Walker, the Defendants used around two-and-a-half hours to depose each witness. See Treatment Provider Response at 3. Walker states that, after reviewing this information on the treatment providers, the Defendants have noted no instance in which the treatment providers would not “testify about the conclusions drawn from their own examination and treatment of” Walker. Treatment Provider Response at 3. Walker avers that caselaw permits the treatment providers to testify to their conclusions based on their examinations and treatment of Walker. See Treatment Provider Response at 3-5 (citing Sturgeon v. ABF Freight Sys., Inc., No. CIV 02-1317 JB/WDS, 2004 WL 5872664, at *2 (D.N.M. Jan. 14, 2004)(Browning, J.); Christopher W. Dyer, Note, Treating Physicians: Fact Witnesses or Retained Expert Witnesses in Disguise? Finding a Place for Treating Physician Opinions in the Iowa Discovery Rules, 48 Drake L. Rev. 719, 727-31 (2000)). Walker avers that her failure to disclosure the treatment providers as experts has not surprised or prejudiced the Defendants. See Treatment Provider Response at 5-9 (citing Woodworker's Supply, Inc. v. Principal Mut. Life Ins., 170 F.3d 985, 993 (10th Cir. 1999)); FinHarvey v. Thiof N.M. at Albuquerque Care Ctr., LLC, No. CIV 12-0727 MCA/LAM, 2015 U.S. Dist. LEXIS 182693, at *18 (D.N.M. March 31, 2015)(Armijo, J.); Peshlakai v. Ruiz, No. CIV 13-0752 JB/ACT, 2013 U.S. Dist. LEXIS 173622, at *61-62 (D.N.M. Dec. 7, 2013)(Browning, J.); Coffey v. United States, No. CIV 08-0588 JB/LFG, 2012 WL 2175747 (D.N.M. May 26, 2012)(Browning, J.); Equal Emp't Opportunity Comm'n v. Outback Steak House of Fla., Inc., Civil Action No. 06-cv-01935-EWN-KLM, 2008 U.S. Dist. LEXIS 63758, at *16-18 (D. Colo. Aug. 20, 2008)(Nottingham, J.); Stone v. Deagle, Case Action No. 05-cv-1438-RPM-CBS, 2006 U.S. Dist. LEXIS 90430, at *14-15 (D. Colo. Dec. 14, 2006)(Shaffer, M.J.)).

         6. The Treatment Provider Reply.

         The Defendants begin by noting that Walker's arguments “are unclear.” Treatment Provider Reply at 1. The Defendants state that Walker appears to admit “that her treatment providers cannot provide testimony regarding the causation of her injuries” and that she did not disclose her treatment providers as experts. Treatment Provider Reply at 1. The Defendants indicate that, although Walker seems to admit the latter fact, she asks that the Court allow the treatment providers to testify as experts. See Treatment Provider Reply at 1. The Defendants reiterate their request that the Court limit the treatment providers' testimony. See Treatment Provider Reply at 2. To advance this request, the Defendants explain that Dr. Rachelson, who Walker identifies in the Treatment Provider Response as a witness for trial, testified in the Deposition of Herbert Rachelson (taken July 20, 2018), filed September 20, 2018 (Doc. 82- 1)(“Rachelson Depo.”), that Walker suffered from “degenerative arthritis of the knee, ” Treatment Provider Reply at 2 (citing Rachelson Depo. at 12:11-12), and that Walker's collision with Spina “was ‘an exacerbating or initiating injury that could have contributed' to Ms. Walker's symptoms, ” Treatment Provider Reply at 2 (quoting Rachelson Depo. at 13:18-24). The Defendants ask that the Court prohibit Dr. Rachelson from repeating this diagnosis and opinion on causation at trial. See Treatment Provider Reply at 2. The Defendants also explain that Dr. Khalsa diagnosed Walker “with a ‘Grade 2 sprain/strain C0-S1, moderate, secondary to [motor vehicle accident (sic).'” Treatment Provider Reply (quoting Deposition of Arjan Khalsa at 38:8-21 (taken May 15, 2018), filed September 20, 2018 (Doc. 82-2)(“Khalsa Depo.”)). The Defendants describe Dr. Khalsa's medical opinion as one that “requires scientific, technical, or specialized knowledge, ” and request that the Court exclude this opinion. Treatment Provider Reply at 2-3. The Defendants further seek for the Court to preclude Dr. Hamilton from testifying to her diagnosis that Walker suffers from Post-Traumatic Stress Disorder (“PTSD”), [2] because PTSD “is a complex mental condition which a lay witness could not testify to.” Treatment Provider Reply at 3 (citing Montoya v. Sheldon, 286 F.R.D. at 630). The Defendants would allow Dr. Hamilton to testify to treating Walker, but not about the diagnosis or the PTSD's cause. See Treatment Provider Reply at 3. The Defendants request that the Court apply the same limitations to Miller, who treated Walker for her PTSD. See Treatment Provider Reply at 3. The Defendants note that they cannot fully understand Walker's arguments regarding “harmless error, ” Treatment Provider Reply at 3, but contend that Walker provides no substantial justification for failing to disclose her treatment providers and no evidence that the failure was harmless, see Treatment Provider Reply at 3. The Defendants conclude by summarizing that the Court has previously restricted a treatment provider's testimony when the treatment provider testified as a lay witness. See Treatment Provider Reply at 3-4.

         7. The Hearing.

         Early in the hearing, Walker indicated her decision not to seek “loss of wages, cost of household services, future medical expenses, or medical care, ” and to seek only hedonic, quality-of-life, damages. See Draft Transcript of Hearing at 8:19-24 (taken November 21, 2018)(A. Ayala) (“Tr.”).[3] Starting with the issue in the Disclosure Motion, the Court clarified that Walker would not call Dr. Harvie and Rodriguez, and so Patterson is the only source of disagreement. See Tr. at 11:25-12:5 (Court, Ball). The Defendants reiterated their requests from the Disclosure Motion. See Tr. at 12:9-17 (Ball). The Court indicated its confusion whether the Patterson Report, which was disclosed on June 27, 2017, before a March 2, 2018, disclosure deadline, was untimely. See Tr. at 12:19-22 (Ball). The Defendants clarified that Walker did not file a formal disclosure of her expert witnesses. See Tr. at 12:23-13:1 (Ball). The Defendants explained that “the Court, ” in the Discovery Order, “had required an expert disclosure where plaintiffs would list each of the experts that they were going to call.” Tr. at 13:5-7 (Ball). The Court requested that the Defendants identify the deadline that Walker missed, because the Defendants received the Patterson Report on January 7, 2017, and Walker listed Patterson in the Joint Status Report. See Tr. at 13:11-14 (Court). The Defendants stated that they expected a disclosure finalizing Walker's experts and that they never received an amended report indicating all areas on which Patterson would testify. See Tr. at 14:9-23 (Ball). The Court asked how, in the Defendant's view, the Patterson Report is deficient, see Tr. at 14:24-25 (Court), and the Defendants admitted that the initial report is not deficient, but that the Patterson Report does not indicate that it is a final report, see Tr. at 1:1-6 (Ball). Walker, the Defendants clarified, has agreed to amend the Patterson Report to account for Patterson's opinions on Walker's future costs of living, and the Defendants stated that, if Walker seeks cost-of-living damages, the Defendants will seek to exclude such testimony. See Tr. at 15:14-21 (Ball).

         Walker, in response to the Court's question, affirmed that the Patterson Report contains the information to which Patterson will testify at trial. See Tr. at 15:23-25 (Court, A. Ayala). Walker stated that he asked Patterson not to amend the report, because Walker would ask for only quality-of-life damages. See Tr. at 16:10-13 (A. Ayala). Walker explained that Patterson had opined on qualify-of-life damages; that Walker, in the Answer to Interrogatories, and in the First and Second Initial Disclosures, had informed the Defendants that she would call Patterson, and that the Defendants deposed Patterson on “his credentials, his education, work histories[, ] cases he testified to[, ] . . . education, publications.” Tr. at 17:3-5 (A. Ayala). See id. at 16:6-14 (A. Ayala). The Court asked whether the Defendants agreed that the Patterson Report contained the information to which Patterson would testify, see Tr. at 17:22-24 (Court), and the Defendants agreed with the Court, see Tr. at 17:25-18:1 (Ball). The Court stated that it would deny the Disclosure Motion, because Walker timely filed the Patterson Report and the Defendants had suffered no prejudice. See Tr. at 18:9-16 (Court).

         Regarding the Treatment Provider Motion, the Defendants explained that, after they filed the Disclosure Motion, they realized that Walker might “attempt to elicit expert testimony from treatment provide[r]s.” Tr. at 34:24-25 (Ball). The Defendants noted that, although Walker listed sixteen treatment providers as potential witnesses, she listed none as expert witnesses, as rule 26(a)(2) requires if they are going to testify as experts. See Tr. at 35:1-10 (Ball). The Defendants request that the Court follow its decision in Montoya v. Sheldon, and preclude the treatment providers from testifying on “standard of care, causation or any type of diagnosis.” Tr. at 35:17-18 (Ball). See id. at 35:10-19 (Ball). The Defendants admitted that they deposed six treatment providers, but they explained that, because they did not expect the treatment providers to act as expert witnesses, they were focused on the treatment providers' statements about Walker's participation in the Senior Olympics. See Tr. at 36:1-9 (Ball). The Court clarified and the Defendants admitted that the Defendants “just don't know” what testimony Walker will seek from the treatment providers, Tr. at 36:10 (Court); see id. at 36:10-13 (Court, Ball), but, in response to the Court's questioning, the Defendants contended that “concrete” statements from the treatment providers concern them, Tr. at 36:15 (Court); see id. at 36:15-17 (Court, Ball). The Defendants explained that Dr. Rachelson testified in his deposition that Walker's left knee injury “was related to the accident . . ., ” Tr. at 36:22-23 (Ball); see id. at 37:20-25 (Ball), and that Dr. Hamilton testified that Walker's PTSD resulted from the accident, see Tr. at 37:1-4 (Ball). The Court asked when Dr. Rachelson and Dr. Hamilton developed their opinions, and the Defendants contended that Dr. Rachelson and Dr. Hamilton developed their opinions at the time of treatment. See Tr. at 37:15:22 (Court, Ball).

         Walker indicated that she will call Dr. Rachelson, Dr. Khalsa, Dr. Hamilton, and Miller at trial. See Tr. at 49:26-28 (A. Ayala). Walker responded that she did not intentionally exclude the treatment providers from the expert witness list and noted that she listed the treatment providers elsewhere. See Tr. at 38:24-39:3 (A. Ayala). Further, Walker averred, as in her Treatment Provider Response, that any failure on her part is harmless error, because she disclosed to the Defendants that Dr. Hamilton would testify and on what. See Tr. at 39:3-11 (A. Ayala). The Court asked whether Walker “always intended to call these . . . treating physicians.” Tr. at 39:17-18 (Court). Walker replied that she always has intended to call the treatment providers as witnesses, that she is not required to provide an expert report for the treatment providers, that she has disclosed the treatment providers, and that she has provided the Defendants her medical records. See Tr. at 39:19-41:7 (A. Ayala). Walker contends that the Defendants complain that she did not provide them notice, but, according to Walker, the Defendants have Walker's medical records, have thoroughly deposed Dr. Rachelson, Dr. Khalsa, Dr. Hamilton, and Miller, and have an expert who has thoroughly reviewed these treatment providers and will respond to their testimony. See Tr. at 41:8-47:15 (A. Ayala). Walker argues that the Defendants are not prejudiced and are very prepared and so, according to Walker, any error on Walker's part is harmless. See Tr. at 47:16-48:6 (A. Ayala).

         The Defendants responded that Walker did not list the treatment providers as experts and provided only a brief summary of the treatment provider's testimony. See Tr. at 48:9-19 (Ball). The Defendants explained that, accordingly, they did not go into detail on Walker's PTSD in the depositions, and that the Defendants did not enter the depositions expecting to depose potential experts. See Tr. at 48:17-18 (Ball). The Defendants indicated that they may want to raise concerns about the treatment providers' qualifications. See Tr. at 50:16-51:2 (Ball).

         The Court indicated that it would likely treat the treatment providers as “treating physician[s]” and not experts. Tr. at 53:5-8 (Court). The Court explained that, if it followed this inclination, it, accordingly, would allow the treatment providers to testify “about what they observed and what they saw at the time they were treating, ” Tr. at 53:9-10 (Court), but not to causation or continuing needs, see Tr. at 53:10-21 (Court). The Court stated that it believed this limitation aligns with the Court's previous limitations on treating physicians. See Tr. at 54:4-5 (Court).

         LAW REGARDING RULE 26

         Rule 26(a)(1) requires parties to make initial disclosures to the other parties, relaying:

(1) Initial Disclosure.
(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information -- along with the subjects of that information -- that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy -- or a description by category and location -- of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the disclosing party -- who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Fed. R. Civ. P. 26(a)(1). Rule 26(e) requires a party who has made a disclosure under rule 26(a) -- or who has responded to an interrogatory, request for production, or request for admission -- to supplement or correct its disclosure or response in a timely manner if it learns that the disclosure or response is incomplete or incorrect. See Fed.R.Civ.P. 26(e). A party must also disclose expert witnesses that the party intends to call at trial. See Fed.R.Civ.P. 26(a)(2).

(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702[4], 703[5], or 705[6].
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report -- prepared and signed by the witness -- if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.

Fed. R. Civ. P. 26(a)(2). Parties must adhere to the schedule that the court sets in providing expert witnesses disclosures, and, if the court provides no schedule, the parties must provide the expert witness disclosure ninety days before the trial date or date “for the case to be ready for trial, ” Fed.R.Civ.P. 26(a)(2)(D)(i), or “if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party . . ., within 30 days after the other party's disclosure, ” Fed.R.Civ.P. 26(a)(2)(D)(ii). Before the date that the pretrial disclosures are due, see Fed.R.Civ.P. 26(e)(2), parties are required to supplement expert witness disclosures, reports, and depositions to correct and complete the provided information or provide information that “has not otherwise been made known to the other parties during the discovery process or in writing, ” Fed.R.Civ.P. 26(e)(1)(A), or “as ordered by the court, ” Fed.R.Civ.P. 26(e)(1)(B).

         This disclosure requirement exists “to eliminate surprise and provide opposing counsel with enough information . . . to prepare efficiently for deposition, any pretrial motions and trial.” Cook v. Rockwell Int'l Corp., 580 F.Supp.2d 1071, 1121-22 (D. Colo. 2006)(Kane, J.). See Fed.R.Civ.P. 37 advisory committee's note (“This automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, such as one under Rule 56.”).

         Rule 37(c) provides the Court with means to address failures to disclose:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

Fed. R. Civ. P. 37(c)(1). The Court may also impose other sanctions, including fee shifting, informing the jury of a party's failure to disclose, striking pleadings, or even dismissing the action. See Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii); Fed.R.Civ.P. 37(c)(1)(A)-(C). This rule prevents expert witnesses from testifying on matters that they failed to disclose in their reports. See Honey-Love v. United States, 664 Fed.Appx. 358, 362 (5th Cir. 2016(unpublished)(“[U]nder Rule 37(c), the presumptive sanction for failing to disclose a testifying expert or supply a required expert report or summary disclosures is to exclude or limit the expert's testimony unless the failure was substantially justified or harmless.” (citing Fed.R.Civ.P. 37(c)(1); Fed.R.Civ.P. 26 advisory committee's note)); Sturgeon v. ABF Freight Sys., Inc., 2004 WL 5872664, at *3 (precluding a treating physician from testifying as an expert where “the only notice ABF received is that Sturgeon intended to call Jackson as a treating physician -- and not as an expert witness”); 7 Annotated Patent Digest § 41:169 (“Generally, an expert will be precluded from testifying to any opinions that were not disclosed in its expert report.”). Whether a rule 26(a) violation is substantially justified or harmless is a question for the district court's broad discretion. Woodworker's Supply, Inc. v. Principal Mut. Life Ins., 170 F.3d at 993 (holding that a damage theory purportedly not disclosed until trial did not warrant exclusion). The United States Court of Appeals for the Tenth Circuit has described this standard as follows:

A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose. Nevertheless, the following factors should guide its discretion: (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.

Woodworker's Supply, Inc. v. Principal Mut. Life Ins., 170 F.3d at 993.

         The Court has addressed the issue in several contexts. The Court frequently concludes that an untimely disclosure prejudices an opposing party, that the prejudice is incurable, and that the untimely disclosure disrupts trial when the disclosure occurs close to trial, the party did not previously know of the information contained in the disclosure, and/or the opposing party does not have an opportunity to engage in further discovery or depositions. See, e.g., Leon v. FedEx Ground Package Sys., Inc., No. CIV 13-1005 JB/SCY, 2016 WL 1158079, at *12-14 (D.N.M. March 1, 2016)(Browning, J.); Guidance Endodontics, LLC v. Dentsply Int'l, Inc., No. CIV 08-1101 JB/RLP, 2009 WL 3672502, at *5 (D.N.M. Sept. 29, 2009)(Browning, J.); Guidance Endodontics, LLC v. Dentsply Int'l, Inc., No. CIV 08-1101 JB/RLP, 2009 WL 3672373, at *12-14 (D.N.M. Sept. 24, 2009)(Browning, J.). For instance, in Leon v. FedEx Ground Package Systems, Inc., the Court concluded that, even though the Court deemed that there was no indication of bad faith or willfulness, the factors pointed against admitting expert testimony on additional statutory violations, because: (i) the testimony would surprise and prejudice the other party, because the expert could choose from many statutes on which to testify; (ii) the prejudice would be incurable, because the expert could explore any statutory violation so the opposing party could not prepare; and (iii) the expert testimony would disrupt trial, because the last-minute testimony would force the opposing party to go on a fishing expedition on cross examination; and the Court would likely have to delay trial to allow the opposing party time to respond to the testimony; and (iv) there were no indications of bad faith or willfulness. See 2016 WL 1158079, at *12-14. Regarding the first element -- prejudice -- in Guidance Endodontics, LLC v. Dentsply International, Inc., the Court explained that a supplemental expert report disclosed soon before trial was prejudicial, because

[t]he trial of a case is a substantial undertaking that consumes most or all of an attorney's time. Delivering an expert report to opposing counsel on the first day of trial, therefore, is not helpful. There is no time to prepare a rebuttal expert or investigate the principles underlying the expert's opinions.

2009 WL 3672502, at *5. The Court noted that the defendants could not “prepare a new or existing expert witness, ” and that the new expert report referenced “some recent research, ” of which the defendants were not informed, and this prejudice was incurable, because the trial had begun and the defendants were subject to a preliminary injunction, and that the defendants did not want to delay the trial and remain subject to the preliminary injunction. 2009 WL 3672502, at *5. The Court excluded the expert even though the Court found no evidence of bad faith or willfulness. See 2009 WL 3672502, at *5. In Guidance Endodontics, LLC v. Dentsply Int'l, Inc., the Court also concluded that: (i) the defendants were prejudiced and surprised when a supplemental report increased the damages estimate “from $1.2 million to $75.2 million” and the plaintiff had previously not disclosed the measure of damages it would seek; and (ii) the prejudice was incurable, because the defendants could not “re-depose [expert] McDonald and find a new rebuttal expert this late in the game when Guidance could have, with due diligence, disclosed this measure of damages during the discovery period.” 2009 WL 3672373, at *12. The Court further noted that the trial would be disrupted, because the defendants did not know the plaintiff would seek such damages and had no rebuttal expert to the expert. See WL 3672373, at *14.

         When a party has time to respond to the information in an untimely disclosure or expert report, or when the party already knew of the information, the Court is less likely to conclude that the party has been prejudiced, that the prejudice is incurable, or that the trial will be disrupted. See, e.g., Coffey v. United States, 2012 WL 2175747, at *12-13; Kerns v. Bd. of Comm'rs of Bernalillo Cty., No. CIV 07-0771 JB/ACT, 2010 WL 1632732, at *7 (D.N.M. March 31, 2010)(Browning, J.); Wheeler Peak, LLC v. L.C.I.2, Inc., No. CIV 07-1117 JB/WDS, 2010 WL 611141, at *3 (D.N.M. Jan. 31, 2010)(Browning, J.); Gulfstream Worldwide Realty, Inc. v. Philips Elecs. N. Am. Corp., No. CIV-06-1165 JB/DJS, 2007 WL 4707080, at *4 (D.N.M. Aug. 14, 2007)(Browning, J.). For example, in reviewing the factors in Coffey v. United States, the Court concluded that, where the plaintiff filed an amended report: (i) there was “little or no prejudice or surprise, ” because the United States of America had approximately ten months to find an expert to testify on conduct at the Gallup Indian Medical center if it needed; (ii) the prejudice was curable, because the United States had the amended report when it deposed the expert, the United States was on notice of the report's opinions, and the United States could have sought relief by contacting the other party or the Court; (iii) the trial would not be disrupted, because the United States had the report for around ten months and could find additional witnesses; and (iv) there was no evidence of bad faith or willfulness. 2012 WL 2175747, at *12-13. In Wheeler Peak, LLC v. L.C.I.2, Inc., the Court deemed that a party suffered little prejudice from an expert report that:

(i) was not signed, (ii) does not contain a complete statement of the basis of his opinions, and does not properly identify the facts, documents, or testimony upon which he relied; (iii) does not identify any summarizing exhibits to be used at trial; and (iv) does not provide his curriculum vitae, or his ...

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