United States District Court, D. Maryland
MEMORANDUM AND ORDER
K. BREDAR CHIEF JUDGE.
Margaret Barnes filed this suit against Defendant Costco
Wholesale Corp., on August 31, 2018, after she slipped and
fell at a Costco store. Currently pending before the Court is
Costco's motion to strike the testimony of various
experts disclosed by Barnes pursuant to Federal Rule of Civil
Procedure 37(c)(1). (ECF No. 24.) The motion is fully briefed
and no hearing is required. See Local Rule 105.6 (D.
Md. 2018). For the reasons stated below, the motion is
granted in part and denied in part.
instant motion arises from an ongoing discovery dispute
between the parties. On February 11, 2019, one week after the
deadline set by this Court, Barnes disclosed eight treating
physicians as expert witnesses. (Mot. Strike Ex. A, ECF No.
14-2.) She did not provide expert . reports for any of those
individuals. Then, on February 20, 2019, Costco filed a
motion to strike the testimony of Barnes's eight experts
on the grounds that Barnes's disclosures were untimely
and deficient under Rule 26(a)(2) of the Federal Rules of
Civil Procedure. (ECF No. 14.) Specifically, Costco argued
that Barnes was required to provide at least summary expert
reports for her treating physicians. (ECF No. 14-1 at 3-4.)
April 18, 2019, after a conference call with counsel for both
parties, this Court denied Costco's motion to strike.
(ECF No. 20.) The Court found it premature to strike the
testimony of Barnes's treating physicians but ordered
that "to the extent that the Plaintiff intends to offer
testimony from her treating physicians that relies on their
expertise, Plaintiff is required to provide at least
abbreviated expert reports to the Defendant before the close
of business on Thursday, April 30, 2019." (Id.
at 3.) The Court observed that the failure to provide such
reports would result in the exclusion of expert testimony at
trial or on a motion. See Fed. R. Civ. P. 37(c)(1).
April 30, 2019, Barnes filed amended Rule 26(a)(2)
disclosures. (Mot. Strike Ex. A, ECF No. 24-2; Opp'n Ex.
1, ECF No. 25-1.) She supplemented her disclosures for only
two of the eight treating physicians previously identified as
experts, Harvey Mininberg, M.D., and Kenneth M. Kudelko, M.D.
She also disclosed a newly retained expert, Michael D. Paul,
M.D. Then, the following day, Barnes sent Costco the expert
report of another treating physician, Shylaja Keshav, M.D.
(Mot. Strike Ex. C, ECF No. 24-4.)
Costco filed the instant motion to strike. (ECF No. 24.) It
moves to exclude the testimony of: (1) the five treating
physicians for whom no expert reports were disclosed-
Katarina Juhaszova, P.A., Paul Schaefer, M.D., James Hill,
N.P., Jan Webber, M.D., and David Boyd, M.D; (2) the treating
physician for whom an expert report was untimely
disclosed-Dr. Keshav; and (3) the newly retained expert-Dr.
Paul. Costco asserts that Barnes should be precluded from
relying upon the testimony of these witnesses "for any
reason." (ECF No. 24-1 at 7.)
Court first addresses Costco's motion to strike the
testimony of Barnes's treating physicians for whom no
expert reports were provided-i. e., P.A. Juhaszova,
Dr. Schaefer, Dr. Hill, Dr. Webber, and Dr. Boyd. Costco
argues that the testimony of these individuals must be
excluded because Barnes failed to provide even summary
reports for them as required by Rule 26(a)(2). (ECF No. 24-1
at 3-4.) Barnes argues, however, that no expert reports were
required for these witnesses because they were not retained
to provide expert testimony and their testimony will not be
based on any specialized knowledge. (ECF No. 25 at 3.)
26(a)(2)(A) requires litigants to disclose the identity of
any witness they may use to offer expert testimony. Rule
26(a)(2)(B) further requires litigants 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." Where a witness is not
required to provide a written report-i.e., because
they are not retained-the disclosure need only state:
"(i) the subject matter on which the witness is expected
to present [expert testimony] evidence .. . and (ii) a
summary of the facts and opinions to which the witness is
expected to testify." Fed. R. Giv. P. 26(a)(2)(C). The
witnesses that fall into this latter category are referred to
as "hybrid witnesses." Under Rule 37(c)(1), a
district court shall exclude testimony "[i]f a party
fails to provide information or identify a witness as
required by Rule 26(a).. . unless the failure was
substantially justified or is harmless." The purpose of
Rule 37(c)(1) is to prevent surprise and prejudice to the
opposing litigant. S. States Rack & Fixture, Inc. v.
Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003).
physicians are generally considered hybrid witnesses and,
thus, their testimony does not require the disclosure of
full-fledged expert reports pursuant to Rule 26(a)(2)(B).
See, e.g., Everett v. Am. Gen. Life Ins. Co., 703
Fed.Appx. 481, 482 (9th Cir. 2017) ("As a treating
physician, [the witness] was qualified to testify regarding
his opinions that 'were formed during the course of
treatment' without necessitating a Rule 26(a)(2)(B)
expert report.") (citation omitted); Brutton v.
United States, 687 Fed.Appx. 56, 58 (2d Cir. 2017);
Ace Am. Ins. Co. v. McDonald's Corp., Civ. No.
GLR-l 1-3150, 2012 WL 2523883, at *3 (D. Md. June 28, 2012);
Williams v. Devlin, 100 F.Supp.3d 8, 12 (D.D.C.
2015). However, their testimony is subject to the
summary disclosure requirements of Rule 26(a)(2)(C). See
Ace Am. Ins., 2012 WL 2523883, at *4; Williams,
100 F.Supp.3d at 12. This is because the testimony of
treating physicians as to facts and opinions concerning their
treatment, such as diagnosis etc., is necessarily based on
their specialized knowledge as physicians.
disclosures for P.A. Juhaszova, Dr. Schaefer, Dr. Hill, Dr.
Webber, and Dr. Boyd do not contain the information required
by Rule 26(a)(2)(C). (See ECF No. 24-2.) She merely
provides the same vague description of their testimony:
"Medical facts and opinions concerning examination,
diagnosis, care, treatment, or evaluation of Plaintiff."
(Id. at 1-3.) Barnes's explanation for her
cursory disclosures is that these witnesses are not retained
experts and their testimony will be limited to facts and
observations learned during their treatment of her. (ECF 25
at 2-3.) That may be true. But that does not exempt their
testimony from the summary report requirements of Rule
26(a)(2)(C); it excepts it only from Rule 26(a)(2)(B)'s
"complete" expert report requirements. See Ace
Am. Ins., 2012 WL 2523883, at *4; Daniels v.
District of Columbia, 15 F.Supp.3d 62, 70 (D.D.C. 2014)
("Thus, if the plaintiff wishes her doctors to testify
as to her 'diagnosis and the treatment prescribed,'
as she has proffered, that testimony is properly classified
as 'expert testimony' and subject to the disclosure
requirements of Rule 26(a)(2)(C)."). Because Barnes
fails to show that her failure to comply with Rule
26(a)(2)(C) was substantially justified or harmless, the
Court will exclude the expert testimony of these witnesses at
trial or on a motion pursuant to Rule 37(c)(1).
also moves to strike the testimony of Dr. Paul and Dr.
Keshav. Costco asserts that the testimony of Dr. Paul should
be stricken because he was improperly disclosed for the first
time in Barnes's amended Rule 26(a)(2) disclosures of
April 30, 2019. (ECF No. 24-1 at 5-6.) And, Costco argues
that Dr. Keshav's testimony should be excluded because
her expert report was untimely disclosed and merely parrots
the findings of another treating physician, Dr. Kudelko.
(Id. at 4-5.)
Rule of Civil Procedure 26(a)(2)(D) requires that expert
disclosures be made "at the times and in the sequence
that the court orders." Fed.R.Civ.P. 26(a)(2)(D). This
Court set the deadline for Barnes's Rule 26(a)(2)
disclosures as February 4, 2019. (ECF No. 9.) Barnes
submitted her Rule 26(a)(2) disclosures one week late, on
February 11, 2019. After Costco challenged the sufficiency of
Barnes's disclosures for her treating physicians, this
Court issued an Order allowing Barnes to supplement her
disclosures until April 30, 2019. (ECF No. 20 at 3.) But the
Court did not authorize the disclosure of any new experts; it
merely allowed Barnes to supplement the disclosures already
provided. (Id.) Nonetheless, Barnes disclosed a
newly retained expert, Dr. Paul, for the first time in her
amended Rule 26(a)(2) disclosures of April 30, 2019. (ECF No.
24-2 at 5.) In addition, despite stating that "[n]o
report will be furnished" as to Dr. Keshav in her
amended disclosures of April 30, 2019, Barnes submitted an
expert report for Dr. Keshav the following day-after the
deadline for such disclosures. (ECF No. 24-4.) Barnes fails
to show that these untimely disclosures were substantially
justified or harmless and, therefore, I will exclude the
expert testimony of Dr. Paul and Dr. Keshav.
these reasons, it is hereby ORDERED that Costco's motion
to strike (ECF No. 24) is GRANTED IN PART and DENIED IN PART.
The motion is GRANTED in that Barnes is precluded from
relying on the expert testimony of P.A. Juhaszova, Dr.
Schaefer, Dr. Hill, Dr. Webber, Dr. Boyd, Dr. Keshav, and Dr.
Paul as evidence on a motion, at a hearing, or at trial. The
motion is DENIED in that Barnes it not precluded ...