Seeley v. Home Depot U.S.A., Inc.

          ORDER

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         This 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.

         Plaintiff 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.

         Pursuant 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.

         II. MOTION TO EXCLUDE TESTIMONY OF DR. ARTHUR

         A. Legal Standard

         Federal 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).

         Treating 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)).

         To 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.

         B. Analysis

         Defendant requests that the Court exclude the expert opinions of plaintiff's treating physician, Dr. Arthur, ^[1] on 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.^[2]

         1. Expert Report Requirement Under Rule 26(a)(2)(B)

         Defendant 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.” Id.

         To the 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] (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.^[4] On their face, none of these opinions clearly go beyond the scope of Dr. Arthur's personal knowledge and treatment of plaintiff.^[5] 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 at 11.

         Defendant 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 patients.”).^[6]

         Because 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).

         2. Sufficiency of Disclosures Under Rule 26(a)(2)(C)

         Defendant 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).

         Plaintiff 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 2.^[7] On September 18, 2017, plaintiff made the following supplemental disclosure:

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.

         Defendant 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.

         As 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 ...