United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Home Depot U.S.A.,
Inc.'s Motion to Exclude Plaintiff's Treating
Physicians' Expert Opinion Testimony [Docket No. 26] and
Defendant Home Depot U.S.A., Inc.'s Motion to Exclude the
Testimony of John D. Papilion, M.D. [Docket No. 32]. The
Court has jurisdiction pursuant to 28 U.S.C. § 1332.
case arises out of a forklift accident at a Home Depot store
in Thornton, Colorado. Docket No. 4 at 3, ¶¶ 4-12.
Plaintiff alleges that, on February 3, 2015, a Home Depot
employee “turned the forklift he was operating into a
material cart, driving it into [plaintiff] and pinning him
between the material cart and a wall.” Id.,
¶ 11. As a result of the incident, plaintiff alleges
that he sustained a crush injury to his knee that has led to
permanent physical impairment. Id., ¶ 12.
filed suit in the District Court for the City and County of
Denver, Colorado on February 1, 2017. Docket No. 1-3. On
March 6, 2017, defendant removed the case to this Court on
the basis of diversity jurisdiction. Docket No. 1 at 4,
¶ 7. Plaintiff's complaint asserts claims for
premises liability, negligence, and negligent training and
supervision under Colorado law. Docket No. 4 at 4-7.
to Fed.R.Civ.P. 26(a)(2), plaintiff disclosed Dr. John D.
Papilion, M.D. as a retained expert witness on the
“cause and extent of plaintiff's alleged physical
injuries, the reasonableness of treatment provided, and . . .
any other subjects or opinions referenced in his report
and/or subsequent deposition testimony.” Docket No.
26-1 at 2-3. Plaintiff also disclosed Dr. Jeffrey Arthur,
plaintiff's orthopedic surgeon, as a non-retained expert
witness who “may testify about the nature of
[plaintiff's] injuries, including diagnosis, prognosis,
and treatment” and the “reasonable and
appropriate charges for treatment.” Id. at 3.
On February 15, 2018, defendant filed a motion to exclude Dr.
Arthur's expert opinion testimony as improperly disclosed
under Fed.R.Civ.P. 26(a)(2). Docket No. 26. On February 21,
2018, defendant moved to exclude the testimony of Dr.
Papilion under Fed.R.Evid. 702. Docket No. 32.
MOTION TO EXCLUDE TESTIMONY OF DR. ARTHUR
Rule of Civil Procedure 26(a) governs the requirements for
disclosure of witnesses. Rule 26(a)(2)(B) provides that if a
“witness is one retained or specially employed to
provide expert testimony in the case or one whose duties as
the party's employee regularly involve giving expert
testimony, ” the party offering the witness must
supplement its disclosure with an expert report. For other
witnesses, Rule 26(a)(2)(C) applies and the disclosure need
only state “(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).
physicians are typically designated as non-retained and
therefore are not subject to Rule 26(a)(2)(B)'s report
requirement. See Davis v. GEO Grp., No.
10-cv-02229-WJM-KMT, 2012 WL 882405, at *2 (D. Colo. Mar. 15,
2012). However, “it is the substance of the
expert's testimony, not the status of the expert, which
will dictate whether a Rule 26(a)(2)(B) report will be
required.” Trejo v. Franklin, No.
04-cv-02523-REB-MJW, 2007 WL 2221433, at *2 (D. Colo. July
30, 2007) (internal quotation marks and brackets omitted).
For example, a treating physician may properly testify about
his or her “observations, diagnosis and treatment of a
patient, ” i.e., “what he said and did and why he
did it” - without submitting an expert report.
Davis, 2012 WL 882405, at *2. On the other hand, if
the physician opines as to issues of “causation,
prognosis, or future disability” going beyond his
personal observation or treatment of the patient, or
“review[s] the records of another health care provider
in order to formulate [an] opinion on the appropriateness of
care, ” the witness will be considered “retained
or employed” and will be required to file a written
report under Rule 26(a)(2)(B). Id.; see also
Meyers v. Nat'l R.R. Passenger Corp., 619 F.3d 729,
734-35 (7th Cir. 2010) (holding that “a treating
physician who is offered to provide expert testimony as to
the cause of the plaintiff's injury, but who did not make
that determination in the course of providing treatment,
should be deemed to be one ‘retained or specially
employed to provide expert testimony in the case,' and
thus is required to submit an expert report in accordance
with Rule 26(a)(2)).
determine whether the requirements of Rule 26(a)(2) have been
satisfied, courts apply a burden-shifting framework. See
Davis, 2012 WL 882405, at *2; see also Morris v.
Wells Fargo Bank, N.A., No. 09-cv-02160-CMA-KMT, 2010 WL
2501078, at *2 (D. Colo. June 17, 2010) (“[S]ome
showing must be made to distinguish an expert witness not
required to provide a report under Rule 26(a)(2)(B) from the
vast majority of cases where experts are required to provide
a report.”). The party moving to strike the witness
must first show that the disclosing party was required to
produce a written report under Rule 26(a)(2)(B).
Davis, 2012 WL 882405, at *2. The burden
then shifts to the party who disclosed the witness to show
that a report was not required. Id.
requests that the Court exclude the expert opinions of
plaintiff's treating physician, Dr. Arthur,
two grounds: (1) plaintiff failed to provide an expert report
as required under Rule 26(a)(2)(B); and (2) plaintiff's
non-retained expert disclosure is deficient under Rule
26(a)(2)(C). Docket No. 26 at 5, 9.
Expert Report Requirement Under Rule
argues that plaintiff's Rule 26(a)(2) disclosures
demonstrate that Dr. Arthur's opinions should have been
set forth in an expert report pursuant to Rule 26(a)(2)(B)
because those opinions were “formed . . . in
anticipation of trial testimony.” Docket No. 26 at 9.
Defendant specifically identifies Dr. Arthur's opinions
on prognosis, causation, reasonable costs for medical care in
the future, and the need for future treatment as being
subject to Rule 26(a)(2)(B)'s disclosure requirements.
Id. Plaintiff acknowledges that “some
limitations on Dr. Arthur's testimony are
appropriate.” Docket No. 44 at 7. For example,
plaintiff states that Dr. Arthur will not testify regarding
the costs of medical care. Id. He further agrees
that Dr. Arthur may not express opinions that are (1) based
on a review of information connected to the litigation, or
(2) not “plainly discernible from the medical records
that are based on and formed during treatment.”
extent that there is any disagreement between the parties
regarding the issues to which Dr. Arthur may testify, that
disagreement appears to center on the requirement that his
opinions be formed at the time of treatment. See
Docket No. 49 at 5 (arguing that proffered opinions were not
“developed by Dr. Arthur at the time of his
treatment”). While defendant is correct that opinions
going beyond Dr. Arthur's personal observation and
treatment of plaintiff would be subject to the requirements
of Rule 26(a)(2)(B), see Davis, 2012 WL 882405, at
*2; Witherspoon v. Navajo Refining Co., L.P., 2005
WL 5988650, at *1 (D.N.M. June 28, 2005) (“Under Tenth
Circuit law, treating physicians not disclosed as experts are
limited to testimony based on personal knowledge and may not
testify beyond their treatment of a patient.”), it is
not clear that any of the opinions identified in
plaintiff's Rule 26 disclosures fall into that category.
In his supplemental Rule 26(a)(2) disclosure, plaintiff
identifies four opinions to which Dr. Arthur is expected to
testify: (1) as a result of the forklift collision, plaintiff
“sustained contusion of the knee and a medial meniscus
tear, and permanent post-traumatic meralgia
paresthetica”; (2) the treatment provided by Dr. Arthur
was “reasonable and appropriate, as were the
charges”; (3) plaintiff's “knee pain
symptoms benefitted from surgical intervention but require
maintenance with cortisone injections”; and (4)
“future treatment, including surgery, may be required
to address persistent knee symptoms.” Docket No. 26-3
at 3. On their face, none of these opinions
clearly go beyond the scope of Dr. Arthur's personal
knowledge and treatment of plaintiff. Moreover, plaintiff's
response to defendant's motion confirms that Dr.
Arthur's proffered opinions, including his opinions on
the causation and prognosis of plaintiff's injury, were
formed in the course of treatment. See Docket No. 44
appears to contend that Dr. Arthur's testimony must be
limited to those opinions expressly stated in plaintiff's
medical records. See Docket No. 26 at 9 (noting that
plaintiff's “disclosure admits that these
doctors' opinions will not be confined to their medical
records”); Docket No. 49 at 6 (arguing that
plaintiff's medical records are silent on issues of
causation, prognosis, and future medical treatment). As
defendant points out, however, a treating physician's
opinions need only satisfy two requirements to avoid the
sweep of Rule 26(a)(2)(B): (1) they “must have been
determined at the time of treatment” based on the
physician's personal knowledge; and (2) they must be
properly disclosed under Rule 26(a)(2)(C). See
Docket No. 49 at 5. The Court finds it sufficient, for
purposes of the first requirement, that Dr. Arthur's
opinions are fairly discernible from his medical records.
See Docket No. 44 at 11-12; see also Docket
No. 44-3 at 1 (noting forklift accident and absence of prior
trauma or issues with knee); Docket No. 44-5 at 4 (discussing
surgical treatment, plaintiff's continuing knee pain, and
follow-up cortisone injections). A requirement that every
opinion offered by a treating physician at trial be expressly
stated in the medical records is neither practicable nor
necessary. See Hayes v. Am. Credit Acceptance, LLC,
2014 WL 3927277, at *2 (D. Kan. Aug. 12, 2014) (“The
fact that medical records may or may not memorialize the
anticipated opinions is not the determinative factor for
whether the treating physicians would be subject to the
requirements of retained experts. The issue is whether it is
apparent that the anticipated opinion testimony extends
beyond the information made known to the treating physicians
during their care and treatment of their
the evidence before the Court does not demonstrate that
plaintiff has improperly designated Dr. Arthur as a
non-retained expert witness, the Court will deny that portion
of defendant's motion based on Rule 26(a)(2)(B).
Sufficiency of Disclosures Under Rule
argues that, even if Dr. Arthur was properly designated as a
non-retained expert witness, plaintiff's disclosures are
insufficient under Rule 26(a)(2)(C). Docket No. 26 at 9. For
non-retained experts, the proponent of the testimony is
required to 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).
made two Rule 26(a)(2)(C) disclosures with respect to Dr.
Arthur. The first, which was served on defendant on August
17, 2017, states that Dr. Arthur is expected to testify about
“the nature of [plaintiff's injuries sustained as a
result of the February 3, 2015 forklift collision], including
diagnosis, prognosis, and treatment.” Docket No. 26-1
at 3. The disclosure further avers that Dr. Arthur “may
testify that the collision resulted in a complex tear of Mr.
Seeley's left medial meniscus, which required surgery,
and post-traumatic meralgia paresthetica” and
“about the reasonable and appropriate charges for
treatment.” Id. On August 18, 2017, defendant
sent plaintiff a letter stating that the disclosure
“contain[ed] no summary of the facts or opinions they
will testify to at trial.” Docket No. 26-2 at
On September 18, 2017, plaintiff made the following
Dr. Arthur may testify about the nature of Mr. Seeley's
lower extremity injuries referenced above. In particular, he
may testify that as a result of the forklift collision
described to him by Mr. Seeley, he sustained contusion of the
knee and a medial meniscus tear, and permanent post-traumatic
meralgia paresthetica. Dr. Arthur may testify that the
treatment he provided, and care provided by referred
neurologists Drs. Zimmer and Polovitz, was reasonable and
appropriate, as were the charges. Dr. Arthur may testify that
Mr. Seeley's knee pain symptoms benefitted from surgical
intervention but requires [sic] maintenance with cortisone
injections. Potential future treatment, including surgery,
may be required to address persistent knee symptoms.
Treatment is on-going, and opinions based on that treatment
will be provided in future supplements.
Docket No. 26-3 at 3.
argues that plaintiff's disclosures do not provide a
“summary of the facts and opinions” to which Dr.
Arthur is expected to testify and are therefore insufficient
under Rule 26(a)(2)(C). Docket No. 26 at 9-12. The Court
finds that defendant is only partially correct.
other courts have noted, there is “scant case law
outlining what constitutes a sufficient disclosure under Rule
26(a)(2)(C).” Chambers v. Fike, 2014 WL
3565481, at *7 (D. Kan. July 18, 2014). The Advisory
Committee for the Federal Rules has cautioned that the Rule
26(a)(2)(C) disclosure “is considerably less extensive
than the report required by Rule 26(a)(2)(B)” and that
“[c]ourts must take care against requiring undue
detail, keeping in mind that these witnesses have not been
specially retained.” Fed.R.Civ.P. 26 advisory committee
notes, 2010 amendments. At a minimum, however, a disclosure
must “obviate the danger of unfair surprise regarding
the factual and opinion testimony of the non-retained
expert” and “contain more than a passing
reference to the general type of care a treating physician
provided.” Chambers, 2014 WL 3565481, at *7.
Additionally, while a disclosure need not “outline each
and every fact to ...