Rule 26(a)(2)(C) Disclosure Must be Provided for Treating Physician — Mere Production of Medical Records Insufficient — Rule 37(c)(1) Factors for Evaluating Substantial Justification and Harmless Error

Carrillo v. B&J Enters., LLC, 2013 U.S. Dist. LEXIS 12435 (D. Nev. Jan. 29, 2013):

Plaintiff appears to concede that her expert disclosures do not comply with Rule 26(a)(2)(B). To the extent there is any question, the Court finds that neither the initial expert reports nor supplemental information provided by Plaintiff for proposed experts Seip and Hanson comply with Rule 26(a)(2)(B). Plaintiff seeks to cure this failure by arguing that, in addition to being retained experts, both Seip and Hansen are treating physicians and, therefore, do not have to make disclosures under Rule 26(a)(2)(B). In Goodman v. Staples, 644 F.3d 817 (9th Cir. 2011), the Ninth Circuit addressed the situation of "hybrid" experts and provided guidance regarding when a treating physician must prepare a Rule 26(a)(2)(B) report. Goodman confirms that a treating physician is not required to make a Rule 26(a)(2)(B) report to the extent the treating physician's opinions are formed during the course of treatment and limited to the scope of treatment rendered. Goodman, 644 F.3d at 826. Based on the record before it, the undersigned finds that the evidence supports the conclusion that both Seip and Hansen are treating physicians and, therefore, not required to submit Rule 26(a)(2)(B) reports.

This does not end the Court's inquiry as Rule 26(a)(2) was recently amended to require disclosure of opinions held by experts not required to provide a written report. See Fed. R. Civ. P. 26(a)(2)(C). Specifically, when identifying experts who are not retained or specially employed, such as treating physicians, a party must state the "subject matter" on which the witness is expected to testify and "a summary of the facts and opinions" to which the witness is expected to testify. See Fed. R. Civ. P. 26(a)(2)(C). It is Defendants' position that even if Seip and Hansen are not required to submit experts reports under Rule 26(a)(2)(B), the expert witness disclosures nonetheless fail to comply with Rule 26(a)(2)(C). Plaintiff counters that the prior disclosure of treatment records is sufficient to satisfy any disclosure requirements, including those under Rule 26(a)(2)(C).

Plaintiff's position is not novel and has been rejected by several courts. See Schultz v. Ability Ins. Co., 2012 U.S. Dist. LEXIS 154145, 2012 WL 5285777 (N.D. Iowa) (reference to medical records, without more, does not satisfy the disclosure requirement of Rule 26(a)(2)(C)); Smith v. Barrow Neurological Institute, 2012 U.S. Dist. LEXIS 106219, 2012 WL 4359057 (D. Ariz.) (referring to medical records associated with a treating physician fails to meet the requirements of Rule 26(a)(2)(C) and is ground to strike experts); Lopez v. Keeshan, 2012 U.S. Dist. LEXIS 85163, 2012 WL 2343415 (D. Neb.) (same); Ballinger v. Casey's General Store, Inc., 2012 U.S. Dist. LEXIS 45024, 2012 WL 1099823 (S.D. Ind.) (permitting a party to provide medical records in lieu of a summary "would invite a party to dump a litany of medical records on an opposing party" and is contrary to "summary" requirement of Rule 26(a)(2)(C)); Davis v. GEO Group, 2012 U.S. Dist. LEXIS 34797, 2012 WL 882405 (D. Colo.) (medical records insufficient under Rule 26(a)(2)(C), but amended disclosure permitted in light of time remaining before trial); Brown v. Providence Medical Center, 2011 U.S. Dist. LEXIS 111098, 2011 WL 4498824 (D. Neb.) (disclosure of medical records insufficient as "court will not place the burden on Defendants to sift through medical records in an attempt to figure out what each expert may testify to."); Kristensen ex rel. Kristensen v. Spotnitz, 2011 U.S. Dist. LEXIS 59740, 2011 WL 5320686 (W.D. Va.) [*17] ("Plaintffs cannot comply with [Rule 26(a)(2)(C)] by disclosing the complete records of treating physicians in issue.").

Both the Rule 26(a)(2)(B) written report and the Rule 26(a)(2)(C) disclosure "share the goal of increasing efficiency and reducing unfair surprise." Brown v. Providence Medical Center, 2011 U.S. Dist. LEXIS 111098, at *3, 2011 WL 4498824 *1 (D. Neb.). Rule 26(a)(2)(C) requires the timely disclosure of a "summary of the facts and opinions" to which a proposed witness will testify. As noted in Kristensen ex rel. Kristensen, whatever its precise meaning, "a 'summary' is ordinarily understood to be an 'abstract, abridgement, or compendium . . . . [i]t follows that Plaintiffs cannot comply with the rule by disclosing the complete records of the treating physicians in issue." Kristensen ex rel. Kristensen, 2011 U.S. Dist. LEXIS 59740, at *5, 2011 WL 5320686 *2 (W.D. Va.). The foregoing cases are persuasive and the undersigned agrees that the production or disclosure of medical records, standing alone, is not sufficient to satisfy the requirements of Rule 26(a)(2)(C). While medical records undoubtedly touch on the subject matter of a treating physician's testimony, they do not necessarily provide an accurate or complete summary of expected testimony since medical records are not typically created in anticipation that those records would be used as a witness disclosure. Here, in a manner inconsistent with Rule 26(a)(2)(C), Plaintiff's counsel has simply dumped medical records onto Defendants' counsel. The court will not place the burden on Defendants to sift through medical records in an attempt to figure out what each expert may testify to. Brown v. Providence Medical Center, 2011 U.S. Dist. LEXIS 111098, 2011 WL 4498824 (D. Neb.). Consequently, Plaintiff has failed to comply with the disclosure requirements of Rule 26(a)(2)(C).

Once it is determined, as here, that a party has failed to provide information required by Rule 26(a) or 26(e), then "the party 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 harmless." Fed. R. Civ. P. 37(c)(1). Rule 37(c) "gives teeth" to the requirements of Rule 26(a) and Rule 26(e) so courts are given a particularly wide latitude to issue sanctions under Rule 37(c)(1). Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (holding district court did not abuse its discretion in excluding testimony of defendant's only damages expert as a sanction). Generally, the exclusion penalty is "self-executing" and "automatic." Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008) (noting Rule 37(c)(1)'s exclusion sanction provides a strong inducement for disclosure of material and affirming district court's preclusion of undisclosed damages evidence).

The party facing sanction has the burden of showing that any failure to disclose is substantially justified or harmless. See Yeti, 259 F.3d at 1107. The factors that may properly guide a court in determining whether a violation is substantially justified or harmless are: (1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely disclosing the evidence. Manneh v. Inverness Medical Innovations, Inc., 2010 U.S. Dist. LEXIS 81876, 2010 WL 3212129 at *2 (S.D. Cal. 2010) (finding failure to disclose certain documents and witness not harmless where opposing party was unable to prepare its defense in time for trial).

Although not substantially justified, the Court finds that, under the specific circumstances of this case, the failure to properly disclose under Rule 26(a)(2)(C) is harmless. Both Seip and Hansen were listed as witnesses in Plaintiff's initial disclosures. The treatment records were not voluminous and Defendants had sufficient time to review the records and conduct other discovery. Thus, any harm stemming from the failure to comply with Rule 26(a)(2)(C) is sufficiently mitigated and prejudice avoided. Nevertheless, Plaintiff should not obtain a strategic litigation advantage because of her own failure. Therefore, Defendants' motion is granted to the extent it seeks to limit Seip and Hansen's testimony to the subject matter of their treatment as disclosed in the medical records and to opinions formed in the course of treatment. See e.g., Schultz v. Ability Ins. Co., 2012 U.S. Dist. LEXIS 154145, 2012 WL 5285777 (N.D. Iowa) (permitting testimony regarding treatment despite failure to comply with Rule 26(a)(2)(C)); In re Denture Cream Products Liability Litigation, 2012 U.S. Dist. LEXIS 152277, 2012 WL 5199597 (S.D. Fla.) (permitting testimony despite failure to comply with Rule 26(a)(2) because discovery was still open and depositions could cure any prejudice); Lopez v. Keeshan, 2012 U.S. Dist. LEXIS 85163, 2012 WL 2343415 (D. Neb.) (permitting testimony despite failure to comply with Rule 26(a)(2)(C) because "the risk of any harm is substantially limited by the fact that the expert opinions Plaintiff may garner from treating physicians are those revealed within their medical records"); Ballinger v. Casey's General Store, Inc., 2012 U.S. Dist. LEXIS 45024, 2012 WL 1099823 (S.D. Ind.) (permitting testimony because disclosure of medical records made prejudice and surprise minimal, provided a general idea of testimony, and prejudice cured by limiting testimony to disclosed records).

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