United States District Court, D. Maryland
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE.
Walmart Stores, Inc. (“Walmart”) has filed a
Motion in Limine seeking to exclude from evidence Plaintiff
Elizabeth Wiseman's (“Plaintiff's”)
proffered expert opinion testimony and related medical
information. [ECF No. 25]. Plaintiff filed an Opposition and
Motion for Leave to File Expert Witness Disclosure, [ECF No.
26], and Walmart filed a Reply thereto, [ECF No. 28]. Walmart
has also moved for sanctions against Plaintiff, including
attorneys' fees, and Plaintiff has opposed the motion.
[ECF Nos. 28, 31]. For the reasons set forth below,
Walmart's Motion in Limine is DENIED in part and deferred
in part; Plaintiff's Motion for Leave to File Expert
Witness Disclosure is GRANTED in part and deferred in part;
and Walmart's request for sanctions is DENIED.
28, 2014, Plaintiff slipped and fell while walking down the
detergent aisle of Walmart Store #2290 in Owings Mills,
Maryland. See Pl.'s Compl., [ECF No. 2].
Plaintiff alleges that the fall caused her significant and
serious injury. Id. Plaintiff filed a complaint
against Walmart in state court in November, 2016, and Walmart
removed the matter to this court soon after. See
[ECF No. 1]. Pursuant to a scheduling order, Rule 26(a)(2)
disclosures were due on February 27, 2017 and March 27, 2017
for Plaintiff and Walmart, respectively. [ECF No. 11]. On
March 10, 2017, Plaintiff responded to Walmart's
discovery requests, and produced, in relevant part, two
hundred and thirty-four pages of bills and records relating
to Plaintiff's medical treatment. Pl.'s Opp., [ECF
No. 26-6, 3]. On March 27, 2017, Walmart timely submitted its
Rule 26(a)(2) disclosures. [ECF No. 26-11]. Plaintiff,
however, failed to submit any expert disclosures until April
27, 2017, two weeks before the discovery deadline, at which
time she identified 13 treating physicians as “hybrid
fact/expert witnesses[.]” [ECF No. 26-14]. In
contemporaneous correspondence, Plaintiff's counsel
informed opposing counsel that Plaintiff “only
intend[s] to call Dr. Chad Zooker at trial, but [has] noted
the other providers to the extent [the parties] are unable to
agree to the authenticity and inadmissibility [(sic)] of
… Plaintiff's medical bills and records.”
[ECF No. 26-13]. The instant motion followed. [ECF No. 25].
THE LEGAL STANDARD
Rule of Civil Procedure 26(a)(2)(A) requires a party to
“disclose to other parties 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).
In addition, Rule 26(a)(2)(B) requires parties to produce
written reports for any witness who is “retained or
specially employed to provide expert testimony in the
case” or “whose duties as the party's
employee regularly involve giving expert testimony.”
Fed.R.Civ.P. 26(a)(2)(B). See Sullivan v. Glock,
Inc., 175 F.R.D. 497, 500 (D. Md. 1997). A report is
complete, and compliant with Rule 26(a)(2), if it is
sufficiently detailed such that “surprise is
eliminated, unnecessary depositions are avoided and costs are
reduced.” Id. at 503 (citations and internal
quotation marks omitted). However, as set out in
Sullivan, treating physicians are generally
considered to be hybrid fact/expert witnesses and
[t]o the extent that the source of the facts which form the
basis for a treating physician's opinions derive from
information learned during the actual treatment of the
patient - as opposed to being subsequently supplied by an
attorney involved in litigating a case involving the
condition or injury - then no Rule 26(a)(2)(B) statement
should be required.
Id. at 501 (emphasis added). For witnesses for whom
no written report is required, a party must disclose
“(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)(C). See Loc. R. 104.10 (D. MD.
2016). Additionally, Federal Rule of Civil Procedure 26(e)
requires that a party who has made a Rule 26(a) disclosure
supplement that disclosure or response if “the party
learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to
the other parties during the discovery process[.]”
party [that] fails to provide information or identify a
witness as required by Rule 26(a) or (e), … 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). Rule 37(c) is self-executing and
automatic. See Fed. R. Civ. P. 37(c) advisory
committee note (1993). Rule 37(c)(1) also allows the court to
“order payment of reasonable expenses, including
attorney's fees, caused by the failure.”
Southern States Rack and Fixture, Inc. v.
Sherwin-Williams Co., the Fourth Circuit articulated
five factors that lower courts should consider in determining
whether a Rule 37(c)(1) violation was harmless or
(1) the surprise to the party against whom the evidence would
be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence would
disrupt the trial; (4) the importance of the evidence; and
(5) the nondisclosing party's explanation for its failure
to disclose evidence.
318 F.3d 592, 596-97 (4th Cir. 2003). The non-disclosing
party bears the burden of establishing that its Rule 26(a)(2)
violation does not warrant preclusion. Id. at 597.
Trial courts are conferred “broad discretion” in
determining whether a party's noncompliance with Rule
26(a)(2) was substantially justified or harmless.
Id. at 596. District courts need not expressly
consider each Southern States factor when evaluating
discovery violations. See Hoyle v. Freitliner LLC, 650
F.3d 321, 330 (4th Cir. 2011).
Expert Disclosure of Plaintiff's ...