O'Daniel v. Arizona Hay and Feed LLC

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 David O'Daniel, No. CV-20-02224-PHX-ESW 10 Plaintiff, ORDER 11 v. 12 Arizona Hay and Feed LLC, 13 Defendant. [15] 16 The Court has diversity jurisdiction over Plaintiff’s state law negligence claim 17 alleging that he suffered personal injuries at Defendant’s farm while securing bales of 18 alfalfa onto Plaintiff’s flat-bed trailer. (Doc. 1 at 3-5). Pending before the Court is 19 Defendant’s “Motion to Exclude Plaintiff’s Expert Witnesses for Untimely and Deficient 20 Disclosures” (Doc. 39), Plaintiff’s Opposition (Doc. 41), and Reply (Doc. 44). 21 Defendant’s Motion (Doc. 39) concerns purported inadequacies in Plaintiff’s disclosure of 22 non-retained expert witnesses who provided healthcare to Plaintiff following the incident 23 at issue. For the reasons explained herein, the Court will grant the Motion. 24 I. LEGAL STANDARDS 25 Federal Rule of Civil Procedure 26 requires parties to disclose the identity of any 26 expert witness, whether retained or non-retained, expected to testify. Lake v. City of 27 Vallejo, No. 2:19-CV-1439-KJM-KJN, 2021 WL 2042584 , at *2 (E.D. Cal. May 21, 2021) 28 (citing Fed. R. Civ. P. 26(a)(2)(A)). For each “retained” expert, Rule 26(a)(2)(B) requires 1 that an expert witness disclosure be accompanied by a written report prepared and signed 2 by the witness. Under Rule 26(a)(2)(C), disclosure of a “non-retained” expert must state: 3 (i) the subject matter on which the witness is expected to present evidence and (ii) a 4 summary of the facts and opinions to which the witness is expected to testify. To the extent 5 that a treating physician’s opinions are formed during the course of treatment, and the 6 physician is to testify as an expert, as opposed to a fact witness, the physician must be 7 disclosed pursuant to Rule 26(a)(2)(C). Goodman v. Staples the Office Superstore LLC, [8] 644 F.3d 817, 826 (9th Cir. 2011). 9 Federal Rule of Civil Procedure 37(c) provides that if a party fails to provide 10 information required by Rule 26(a), then “the party is not allowed to use that information 11 or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was 12 substantially justified or is harmless.” The Ninth Circuit gives “particularly wide latitude 13 to the district court’s discretion to issue sanctions under Rule 37(c)(1),” which “gives teeth 14 to the Rule 26(a) disclosure requirements.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., [15] 259 F.3d 1101, 1106 (9th Cir. 2001). “The party facing sanctions bears the burden of 16 proving that its failure to disclose the required information was substantially justified or is 17 harmless.” R & R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1246 (9th Cir. 2012). 18 II. DISCUSSION 19 The Court set November 5, 2021 as Plaintiff’s expert disclosure deadline. (Doc. 20 19 at 3). On November 5, 2021, Plaintiff served on Defendant “Plaintiff’s Expert 21 Designation” identifying four retained experts and seventeen non-retained experts. (Doc. 22 39-1). Preceding the list of the non-retained experts is the following paragraph: Plaintiff may call the following non-retained, expert witnesses [23] to give expert testimony. The following doctors, nurses, 24 therapists, medical technicians, and other healthcare providers have cared for and provided treatment to Plaintiff. As such, [25] they possess expertise and knowledge in their respective areas. 26 This designation is made to permit the Plaintiff the opportunity to introduce evidence from these individuals which might be [27] deemed in the nature of opinion or expert testimony. 28 Specifically, these individuals may testify about their care, treatment, causation, physical restrictions, prognosis, 1 diagnosis, reasonable costs for past and future medical care. 2 (Id. at 4). No further descriptions accompany the names of the non-retained experts. 3 In a letter dated December 8, 2021 to Plaintiff’s counsel, defense counsel asserted 4 that Plaintiff’s disclosure of his non-retained experts was insufficient. (Doc. 39-2). 5 Defense counsel wrote: Plaintiff did not provide a written report for any of the [6] [non-retained experts]. Plaintiff likewise did not state the 7 subject matter on which these non-retained experts are expected to present evidence or a summary of the facts and [8] opinions on which they are expected to testify - he simply 9 provided a boilerplate statement. . . . Plaintiff’s failure to provide this information precludes Defendant from making an [10] informed decision regarding whether it is necessary to take 11 these physicians’ depositions, request their files, or whether a responding expert is needed. It is unclear who is testifying to [12] what, precluding Defendant from adequately preparing for 13 trial. The Court’s Order prohibits Plaintiff from supplementing the disclosure. Accordingly, I am putting you on notice that 14 Defendant will move to exclude these witnesses should 15 Plaintiff attempt to elicit their testimony at trial and file any other motions that are necessary. [16] (Id. at 4). In its Motion, Defendant recounts that the parties also conferred telephonically [17] on December 8, 2021 regarding Plaintiff’s non-retained expert disclosures. (Doc. 39 at 5). [18] Defendant states that “Plaintiff did nothing in response.” (Id.). The Court finds that [19] Defendant is correct that Plaintiff’s November 5, 2021 non-retained expert witness [20] disclosures are inadequate. [21] On March 22, 2022, after Defendant timely disclosed its expert witnesses,1 Plaintiff [22] served a “First Supplemental Expert Designation” on Defendant. (Doc. 39-4). The [23] document includes the seventeen non-retained experts previously disclosed on November [24] 5, 2021, along with an additional non-retained expert: Dr. Hayes at Elite Medical Wellness. [25] (Id. at 6). The “First Supplemental Expert Designation” contains the same paragraph [26] preceding the names of the non-expert witnesses that is contained in Plaintiff’s original [27] 28 1 The deadline was originally set for January 5, 2022, but the Court granted the parties’ request to extend it to March 4, 2022. (Doc. 31). 1 “Expert Designation.”2 However, unlike Plaintiff’s original “Expert Designation,” the 2 “First Supplemental Expert Designation” also contains a summary paragraph under each 3 of the non-expert witnesses’ names. The summary paragraphs do not detail the precise 4 opinions that the witnesses will offer and refer Defendant to the witnesses’ records. 5 Defendant argues that the summary paragraphs are inadequate under Rule 26(a)(2)(C).3 6 (Doc. 39 at 9-11). 7 In Jones v. Colorado Cas. Ins. Co., No. CV-12-01968-PHX-JAT, 2015 WL 8 6123125, at *2 (D. Ariz. Oct. 19, 2015), the District Court recounted that the Advisory 9 Committee Notes to Rule 26 explain that “[c]ourts must take care against requiring undue 10 detail” in Rule 26(a)(2)(C) disclosures. The District Court explained that: The puzzle for the Court becomes defining how many pieces a [11] party must disclose to sufficiently apprise an opposing party of 12 a treating physician’s opinions but without imposing “undue detail.” For example, one court noted that a summary is [13] “ordinarily understood to be an ‘abstract, abridgement, or 14 compendium.’” Kristensen v. Spotnitz, No. 3:09-CV-00084, 2011 WL 5320686 , at *2 (W.D. Va. June 3, 2011). Another [15] court observed “[i]t is not enough [for a Rule 26(a)(2)(C) 16 disclosure] to state that the witness will testify consistent with information contained in the medical records.” Hayes v. Am. [17] Credit Acceptance, LLC, No. 13-2413-RDR, 2014 WL 18 3927277, at *3 (D. Kan. Aug. 12, 2014). Instead, the disclosure must “summarize actual and specific opinions” and, 19 if the physician is to opine on causation, explain “how” and 20 “why” the physician reached a particular opinion. Id. [21] 2 Defendant has submitted a redline comparing Plaintiff’s original “Expert 22 Designation” and “First Supplemental Expert Designation.” (Doc. 39-5). 23 3 Defendant also asserts that (i) Dr. Hayes should be excluded as Plaintiff disclosed Dr. Hayes as a non-retained expert over four months after the deadline and (ii) Plaintiff’s 24 attempt to cure the deficiencies in the disclosures of the other non-retained experts is untimely. (Doc. 39 at 6-8). In addition, Defendant asserts that certain non-retained experts 25 (including Dr. Lane, Dr. Khan, Dr. Mays, Dr. Cox, Dr. Fenn, Dr. Hayes, and Dr. Brennan) “seemingly relied on more than their course of treatment in forming their opinions on a 26 number of issues they claim to be testifying on, including but not limited, their alleged causation opinions” and are therefore not exempt from Rule 26(a)(2)(B)’s written report 27 requirements. (Doc. 39 at 8-9). It is unnecessary to address these arguments as the Court finds that Plaintiff’s “First Supplemental Expert Designation” contains an insufficient 28 summary of the facts and opinions as to which the non-retained expert witnesses are expected to testify. 1 Jones, 2015 WL 6123125, at *2. 2 Courts have rejected the argument that mere disclosures of treatment records 3 without an accompanying disclosure summary satisfies Rule 26(a)(2)(C). See Anderson v. 4 Bristol, Inc., 936 F. Supp. 2d 1039, 1060 (S.D. Iowa 2013) (“[W]hen a party merely states 5 the name of the witness along with the witness’ connection to the case, or where the party 6 solely refers to medical or similar records that have already been produced, without 7 providing a summary of the witness’ expected testimony, the party is not in full compliance 8 with the disclosure requirements found in Rule 26(a)(2)(C).”); Smith v. Barrow 9 Neurological Inst. of St. Joseph’s Hosp. & Med. Ctr., No. CV 10-01632-PHX-FJM, 2012 10 WL 4359057 , at *1 (D. Ariz. Sept. 21, 2012) (holding that referring to medical records 11 associated with a treating physician fails to meet the requirements of Rule 26(a)(2)(C) and 12 is grounds to strike an expert’s testimony); Ballinger v. Casey’s Gen. Store, Inc., No. 1:1013 CV-1439-JMS-TAB, 2012 WL 1099823 , at *4 (S.D. Ind. Mar. 29, 2012) (permitting a 14 party to provide medical records in lieu of a summary “would invite a party to dump a 15 litany of medical records on an opposing party” and is contrary to the “summary” 16 requirement of Rule 26(a)(2)(C)); Nicastle v. Adams Cty. Sheriff’s Office, No. 10-CV17 00816-REB-KMT, 2011 WL 1674954 , at *1 (D. Colo. May 3, 2011) (holding that a 18 disclosure summary was improper because the disclosures merely referred to the expert’s 19 investigation files); Brown v. Providence Med. Ctr., No. 8:10CV230, 2011 WL 4498824 , 20 at *1 (D. Neb. Sept. 27, 2011) (holding that the court will not “place the burden on 21 defendants to sift through medical records in an attempt to figure out what each expert may 22 testify to”). 23 As in Jones, “[a]n elementary problem” with Plaintiff’s disclosure regarding his 24 non-retained experts is that, “while the reader is advised that [the provider] ‘will offer 25 testimony’ about various issues, the disclosure fails to include what his actual opinions are 26 regarding the issues.” Jones, 2015 WL 6123125 , at *3 (emphasis omitted). “The purpose 27 of the Rule 26(a)(2)(C) requirement is to allow the party in receipt of the disclosure to be 28 able to read the disclosure and immediately be able to identify whether it needs a responsive 1 witness and the information that such responsive witness would need to address.” Cooke 2 v. Town of Colorado City, No. CV 10-08105-PCT-JAT, 2013 WL 551508 , at *4 (D. Ariz. 3 Feb. 13, 2013). 4 Plaintiff’s non-retained expert witness disclosures do not allow Defendant to 5 determine the actual opinions a responsive witness would need to address. See Jones, 2015 6 WL 6123125 , at *3 (citing Pineda v. City & Cty. of S.F., 280 F.R.D. 517, 523 (N.D. Cal. 7 2012) (determining that the plaintiff’s supplemental disclosure did not comply with Rule 8 26(a)(2)(C) because it did not “contain a summary of the facts and opinions to which each 9 witness will testify”) and Kondragunta v. Ace Doran Hauling & Rigging Co., No. 1:1110 CV-01094-JEC, 2013 WL 1189493 , at *6 (N.D. Ga. Mar. 21, 2013) (holding that a plaintiff 11 did not comply with Rule 26 by disclosing only the subject matter of the expert’s opinion, 12 and not the expert’s relied-upon facts and opinions, because the reader of the disclosure 13 would have “no idea what opinion the doctor will offer or on what facts the doctor will 14 base that opinion”)). Plaintiff has not disclosed the factual bases for “how” or “why” the 15 non-retained experts formed their opinions. See Pineda, 280 F.R.D. at 523 (holding that 16 disclosing that treating physicians would “present factual and opinion testimony on 17 causation, diagnosis, prognosis, [and] extent of [Plaintiff’s] disability” failed to “include 18 any facts on which [the] non-retained experts will rely, nor does it state the opinions to 19 which they are expected to testify”) (alteration in original). 20 The Court finds that Plaintiff’s disclosures of its non-retained experts are 21 insufficient. As a result, Plaintiff may not use the non-retained experts unless Plaintiff can 22 show that the inadequate disclosure was substantially justified or harmless. See Fed. R. 23 Civ. P. 37(c)(1). The Court finds that “Rule 26(a)(2)(C) would be reduced to mere rhetoric 24 if the Court were to hold harmless Plaintiff’s [inadequate] disclosure.” Jones, 2015 WL 25 6123125, at *4 (“In this case, the Court cannot conclude that Plaintiff’s failure to properly 26 follow the requirements of Rule 26(a)(2)(C) was harmless because Plaintiff believes that 27 Colorado Casualty could have correctly guessed at the substance of Dr. Dewanjee’s 28 testimony from his prior deposition testimony, medical records, and prior disclosures.”). 1 The Court also finds that Plaintiff has not met his burden to show that his inadequate 2 disclosures were substantially justified. 3 “[D]iscovery sanctions can be appropriate even where they preclude ‘a litigant’s 4 entire cause of action or defense.’” Jarritos, Inc. v. Reyes, 345 F. App’x 215, 217 (9th Cir. 5 2009) (quoting Yeti by Molly, 259 F.3d at 1106 ). The Court will grant Defendant’s Motion 6 (Doc. 39). The Court does not rule at this time on whether the non-retained experts may 7 testify as fact witnesses.4 See Krause v. Hawaiian Airlines, Inc., No. 2:18-CV-00928 JAM 8 AC, 2019 WL 2598770 , at *6 (E.D. Cal. June 25, 2019) (explaining that “the witnesses 9 precluded from offering expert testimony may, of course, testify as fact witnesses to the 10 extent permitted by the trial judge”); Titus v. Golden Rule Ins. Co., No. CV-12-0031611 PHX-ROS, 2014 WL 11515698 , at *3 (D. Ariz. Apr. 4, 2014) ((holding that a treating 12 physician who was not properly disclosed as a Rule 26(a)(2)(C) expert could testify about 13 his treatment “to the same extent any lay witness would be able to describe that treatment,” 14 but that he could not describe why he undertook particular treatments “if, as is likely, 15 explaining ‘why’ would require [him] to offer an impression based on his specialized 16 knowledge and skill.”). 17 III. CONCLUSION 18 Based on the foregoing, 19 IT IS ORDERED granting Defendant’s “Motion to Exclude Plaintiff’s Expert 20 Witnesses for Untimely and Deficient Disclosures” (Doc. 39). The following witnesses 21 are precluded from presenting expert testimony: 22 Elite Medical Wellness, LLC Dr. Hayes [23] 2802 Hodges Street [24] 4 A fact witness is a witness whose testimony is: “(a) rationally based on the 25 witness’s perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized 26 knowledge within the scope of Rule 702.” Fed. R. Evid. 701. It is noted that testimony regarding the cause of Plaintiff’s injuries is expert testimony. United States v. Urena, 659 27 F.3d 903, 908 (9th Cir. 2011) (agreeing with sister circuits that “a physician’s assessment of the cause of an injury is expert testimony”). [28] 1 Lake Charles, Louisiana 70601 [2] Allied Health 3 Michael Lane, M.D. 3600 Jackson Street, Suite 127 [4] Alexandria, Louisiana 71303 [5] Bossier Orthopedics & Sports Medicine [6] Willis-Knighton Health System 7 John T. Mays, MD 2449 Hospital Drive, Suite 340 [8] Bossier, Louisiana 71111 [9] Center for Orthopaedics 10 1747 Imperial Boulevard 11 Lake Charles, Louisiana 70605 12 Chandler Regional Medical Center 13 1955 W Frye Road Chandler, Arizona 85224 [14] Dignity Health East Valley Rehabilitation Hospital [15] 1515 W. Chandler Boulevard 16 Chandler, Arizona 85224 [17] Doctor’s Outpatient Surgery Center, Inc. d/b/a Surgery Center 18 1101 S. College Road, Suite 100 Lafayette, Louisiana 70503 [19] 20 Ameer Khan, M.D. 1890 W. Gauthier Road, Suite 155 [21] Lake Charles, Louisiana 70605 [22] Med-Trans Air Medical Transport 23 P.O. BOX 708 24 West Plains, MO 65775 25 Neurosurgical Solutions of Lafayette, LLC 26 William Brennan, M.D. 105 Patriot Avenue, Suite 101 27 Lafayette, Louisiana 70508 [28] 1 Open Air MRI > 5413 Jackson Street Alexandria, Louisiana 71303 [3] 4 Orthopaedic Reconstructive Subspecialists, LLC Paul Fenn, M.D. 5 105 Patriot Avenue, Suite 101 6 Lafayette, Louisiana 70508 7 Orthopedic Specialists of Louisiana g Steven Cox, M.D. 1500 Line Avenue 9 Shreveport, Louisiana 71101 10 Pioneer Hospitalists, PLLC 11 475 S. Dobson Road 1D Chandler, Arizona 85224 13 Radiology Consultants of West Monroe 503 McMillan Road 14 West Monroe, Louisiana 71291 [15] Wheat Physical Therapy & Wellness 16 733 Keyer Avenue, Suite 100 7 Natchitoches, Louisiana 71457 18 CVS Pharmacy [19] Walgreens Pharmacy 20 Dated this 5th day of May, 2022. [22] Honorable Eileen S. Willett 23 United States Magistrate Judge [28] -9-