Commercial Litigation and Arbitration

Minimal 26(a)(2)(C) Disclosure Upheld Because Complaint Sufficiently Elucidated Likely Scope of Testimony

Gilster v. Primebank, 2012 U.S. Dist. LEXIS 114447 (N.D. Iowa Aug. 14, 2012):

Footnote 8. The defendants ... maintain that I erred when I permitted Elizabeth Pratt to offer expert opinion testimony on whether Gilster would experience anxiety and stress in the future because Gilster failed to disclose Pratt's expert opinion on this subject.

Where a party fails to comply with discovery disclosure requirements, "[t]he district court may exclude the information or testimony as a self-executing sanction unless the party's failure to comply is substantially justified or harmless." Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). Because Pratt was a treating practitioner [a nurse] and not an expert specifically retained for trial, Gilster, to comply with disclosure requirements, was required to provide "the subject matter on which [Pratt] [was] expected to present evidence under Federal Rule of Evidence 702, 703, or 705" and "a summary of the facts and opinions to which [Pratt] [was] expected to testify." Fed. R. Civ. P. 26(a)(2)(C). Gilster's expert designation of Pratt was, as follows:

1) Elizabeth Pratt, ARNP, Family Healthcare of Siouxland.***

a. Elizabeth Pratt treated Plaintiff throughout her anxiety and depression.

b. Plaintiff visited Ms. Pratt approximately 10 times from January 2010 to January 2011. Ms. Pratt's testimony will likely relate to Plaintiff's medical records, her treatment of her, and the effects of Defendants' actions on Plaintiff.

Gilster's Expert Designation at 1***. The defendants maintain that Gilster's disclosure was insufficient to put them on notice that Pratt would testify to future emotional harm. I disagree. Gilster indicated that Pratt would testify to "the effects of Defendants' actions on Plaintiff," and I find that this summary of Pratt's opinions was sufficient under Rule 26(a)(2)(C). The defendants knew from Gilster's complaint that she sought future damages for emotional distress. See Gilster's Second Amended Complaint at 9-10 (docket no. 22). There was no unfair surprise to the defendants in letting Pratt testify to her opinion of whether Gilster would suffer future anxiety and depression as a result of the defendants' actions, as this falls within the category of "the effects of Defendants' actions on Plaintiff." Therefore, there was no discovery violation and exclusion of Pratt's expert opinion testimony was not warranted.

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