United States District Court, W.D. Virginia
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE.
in this case is defendants' motion in limine to exclude
plaintiffs expert or, in the alternative, to compel an
amended expert designation. ECF No. 31. In a scheduling order
entered in this case on April 2, 2019, the plaintiff was
directed to disclose the identity and a summary of all of
opinions of any expert witness who was not retained or
specially employed to provide expert testimony, such as a
treating physician, within 75 days of the order. Defendants
were directed to make the same disclosures within 90 days of
the scheduling order. ECF No. 18 at ¶ 16.
requirement to disclose the identity of a witness and a
summary of the witness's opinion is set out in Federal
Rule of Civil Procedure 26(a)(2)(C), which states that for
witnesses who are not required to provide a written report,
the disclosure must (1) identify the subject matter on which
the witness is expected to present evidence under Federal
Rule of Evidence 702, 703, or 705; and (2) include a summary
of the facts and opinions to which the witness is expected to
testify. The Advisory Committe notes to the 2007 amendments
to the rule state that the rule was added to mandate summary
disclosures of the opinions to be offered by expert witnesses
who are not required to provide written reports (such as
treating physicians), and the facts supporting the opinions.
Fed.R.Civ.P. 26(a)(2)(C) advisory committee's notes to
under Rule 26(a)(2)(C) are considerably less extensive than a
report required by Rule 26(a)(2)(B) and courts should not
require undue detail. Marr v. Abercrombie & Fitch
Stores. Inc.. No. 5:14-CV-123, 2015 WL 3827326, *4 (E.D.
N.C. 2015) (citing the Advisory Committee notes).
Nevertheless, '"to guard against the prejudice of
unfair surprise on opposing parties, and for Rule 26(a)(2)(C)
to have any meaning, summary disclosures must contain more
than a passing reference to the care a treating physician
provided.'" Id. (quoting Slabaugh v. LG
Electronics USA. Inc., No. 1:12-CV-01020-RLY, *32015 WL
1396606 at *3 (S.D. Ind. 2015)). The disclosures
"'must clearly identify the witness, state the
subject matter of the expected testimony, and summarize
actual opinions."' Id. (quoting
Slabaugh. 2015 WL 1396606 at *3).
28, 2019, O'Donnell provided an initial expert disclosure
to defendants in which he identified Dr. Shakeel Durrani as a
physician who had treated him for injuries sustained in the
accident that is the basis of this litigation. Regarding the
summary of Dr. Durrani's opinion, O'Donnell stated
Dr. Durrani is an expert in the field of orthopedics and is
expected to testify as to the treatment rendered to Plaintiff
following the wreck, the causal relationship between the
injuries sustained in the wreck and the medical treatment
rendered by him. Plaintiffs counsel expects to solicit
testimony from Dr. Durrani as to the permanent nature of the
personal injuries sustained by the Plaintiff as a result of
this wreck and future medical expenses and treatment,
including surgery, which are reasonably expected to occur in
the future. Dr. Durrani's opinion will be based on his
review of the medical records, examination and treatment of
Plaintiff, the history taken from Plaintiff, and years of
experience and medical training.
ECF No. 31.
asserts that this disclosure is sufficient, and that in
addition, all medical records have been provided in a timely
fashion to defendants' counsel. O'Donnell further
asserts that he currently is awaiting approval for surgery
from worker's compensation and that the full extent of
his injuries will be apparent upon surgery, at which time he
will disclose them to defendants. Finally, O'Donnell
states that he has disclosed to defendants that Dr. Durrani
has advised that three epidural steroid injections have
provided only temporary relief and the only thing that will
provide more permanent relief will be decompression fusion
and instrumentation surgery.
court finds that this disclosure identifies Dr. Durrani as
the treating physician expert and states the subject matter
of the expected testimony, but falls impermissibly short of
summarizing any actual opinion. It gives no clue as to any
opinion Dr. Durrani will offer about the causal relationship
between the injuries sustained in the wreck, the medical
treatment he has received, or whether the injuries are
permanent. While O'Donnell has disclosed that Dr. Durrani
believes he will need surgery in the future, he does not
summarize the doctor's opinion about future medical
expenses or other future treatment. See Marr, 2015
WL 3827326 at *5 (collecting cases finding similar
disclosures to be insufficient under Rule 26(a)(2)(C)).
does production of medical records constitute a disclosure
describing "the subject matter on which a witness is
expected to testify." Vanderberg v. Petco Animal
Supplies Stores, Inc.. 906 F.3d 698, 703 (8th
Cir. 2018). See also Kristensen ex rel. Kristensen v.
Spotnitz. No. 3:09-CV-84, 2011 WL 5320686 (W.D. Va.
2011) (finding a party cannot comply with Rule 26(a)(2)(C) by
disclosing the complete records of the treating physicians in
court believes that defendant's motion, ECF No. 31, is
well taken to the extent that it requires an amended expert
designation that contains a summary of Dr. Durrani's
opinions with regard to the subjects of his testimony. The
wrinkle here, however, is that O'Donnell is waiting to
hear if additional surgery is going to be approved by
workers' compensation. Such surgery, if performed, likely
will change the medical opinions in this case. As such,
defendants' motion is GRANTED to the
the surgical decision is made and/or surgery is performed,
plaintiff should provide a timely amended expert designation
with greater specificity as to Dr. Durrani's opinions as
to causation, necessity of treatment, and medical expenses.
Defendants' expert designation will be due 15 days after
their receipt of O'Donnell's amended disclosure.
other provisions of the scheduling order entered on April ...