KERRY HINKLE, Administrator of the Estate of Kiara Hinkle, et al., Plaintiffs,
FORD MOTOR COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
This matter is pending for consideration of Defendant Ford Motor Company's Motion to Strike Testimony of Dr. James Baker and Dr. James Bilbo. [Record No. 99] The defendant's motion is based upon the plaintiffs' alleged failure to comply with the disclosure requirement of Rule 26(a)(2) of the Federal Rules of Civil Procedure. For the following reasons, the Court will grant the defendant's motion, in part, and will deny the motion, in part.
This is a product liability action that arises out of a single-vehicle accident. The driver, Kiara Hinkle, was killed in the accident, and passengers Jason Turner and Natya Stafford were injured. On May 2, 2011, the plaintiffs filed this action. The plaintiffs contend that the subject-vehicle - a 2004 Mercury Mountaineer All-Wheel Drive - was defectively designed because it was not equipped with Electronic Stability Control ("ESC") when manufactured by the defendant.
The plaintiffs were required to disclose the identity of their expert witnesses, along with their written reports, no later than February 28, 2012. [Record No. 23] On December 1, 2011, the plaintiffs provided the defendant with expert disclosures pursuant to Rule 26(a)(2). [ See Record No. 99-3; see also Record No. 53, pp. 4-5.] As part of these disclosures, the plaintiffs identified Dr. Baker and Dr. Bilbo as treating physicians under Rule 26(a)(2)(C). Dr. Bilbo was identified as "treating Plaintiff Natya Stafford for injuries to her knee, " and Dr. Baker was identified as "treating Plaintiff Jason Turner for injuries to his left arm and wrist [and] may also treat Turner for injuries to his right arm and wrist." [Record No. 99-3, p. 3] The plaintiffs attached summaries of each doctor's opinion and supporting facts to the initial disclosures.
The defendant contends that both Dr. Baker and Dr. Bilbo are retained experts, not treating physicians and, therefore, the plaintiffs were required to disclose their opinions in accordance with Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. The defendant argues that the plaintiffs' failure to provide expert reports requires that the testimony of both doctors be stricken in accordance with Rule 37 of the Federal Rules of Civil Procedure. The plaintiffs counter that Dr. Baker and Dr. Bilbo are actually treating physicians and that their opinions were properly disclosed in accordance with the less rigorous disclosure standard of Rule 26(a)(2)(C). Additionally, the plaintiffs argue that, to the extent the Court finds that the testimony of either doctor should have been disclosed pursuant to Rule 26(a)(2)(B), any mistake was harmless and does not warrant exclusion.
A. Retained Expert vs. Treating Physician
A witness who is "retained or specially employed to provide expert testimony in the case" must provide a written report containing certain required disclosures. Fed.R.Civ.P. 26(a)(2)(B). However, for witnesses who are not required to file a written report, a disclosure must simply be made in accordance with the less onerous disclosure standard Rule 26(a)(2)(C). A treating physician is generally exempt from the written report requirement for expert testimony to the extent that his or her opinions were formed during the course of treatment. See Fielden v. CSX Transp., Inc., 482 F.3d 866, 869 (6th Cir. 2007); see also Roberts v. Solideal Tire, Inc., 06-14-DLB, 2007 WL 2990536, at *4 (E.D. Ky. Oct. 10, 2007). Further, the Advisory Committee Note to Rule 26 states that a "treating physician... can be deposed or called to testify at trial without any requirement for a written report." Fielden, 482 F.3d at 869 (alteration in original).
Rule 26(a)(2) was amended in 2010, and the Advisory Committee Notes indicates that the changes to Subdivision (a)(2)(C) "resolve a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement." Fed.R.Civ.P. 26 advisory committee's note (Subdivision (a)(2)(C)). The Advisory Committee Notes also state that the disclosure requirements under Subdivision (a)(2)(C) are "considerably less extensive than the report required by Rule 26(a)(2)(B), " and that courts "must take care against requiring undue detail, keeping in mind that these witnesses have not been specially retained and may not be as responsive to counsel as those who have." Id. Further, "[a] witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or 705. Frequent examples include physicians... Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure required under Rule 26(a)(2)(C). The (a)(2)(C) disclosure obligation does not include facts unrelated to the expert opinions the witness will present." Id.
"Generally a treating physician can provide expert testimony regarding a patient's illness, the appropriate diagnosis, and the cause of the illness even if the physician is not among the world's foremost authorities." Thomas v. Novartis Pharms. Corp., 443 F.Appx. 58, 62 (6th Cir. 2011). However, a treating physician is not permitted to testify to issues beyond those covered in ordinary medical training. Fielden, 482 F.3d at 871-72.
The Sixth Circuit has held that a treating physician can testify solely within the scope of his own diagnosis and treatment. See Ridder v. City of Springfield, 108 F.3d 1377 (Table), 1997 WL 117024, at *4 (6th Cir. Mar. 13, 1997); see also Fielden, 482 F.3d at 871 ("The determinative issue is the scope of the proposed testimony." (internal quotation marks omitted)). Therefore, a Rule 26(a)(2)(B) report "is not required when a treating physician testifies within a permissive core on issues pertaining to treatment, based on what he or she learned through actual treatment and from the plaintiff's records up to and including that treatment." Fielden, 482 F.3d at 871. "Courts attempting to determine whether a physician's testimony regarding causation falls into this core' have considered factors such as: (1) whether the physician reached his conclusion at the time of treatment; (2) whether the opposing party would be surprised by the testimony; (3) whether the condition at issues leaves room for debate as to the specific ailment and its sources; (4) whether the physician relied upon ordinary medical training in drawing his conclusion; and (5) whether the physician will rely on tests, documents, books, videos, or other sources not relied upon during treatment." Gaspar v. Dicks, No. 08-13707, 2011 U.S. Dist. LEXIS 136571, at *11 (E.D. Mich. Nov. 29, 2011); see also Gorajczyk v. City of St. Clair Shores, No. 08-14764, 2010 U.S. Dist. LEXIS 83765, at *12-13 (E.D. Mich. Aug. 17, 2010).
B. Rule 37 of the Federal Rules of Civil Procedure and Failure to Comply with Disclosure Requirements of Rule 26(a)
Rule 26(a) requires that a party make expert disclosures at the times and in the sequence that the court orders. See Fed.R.Civ.P. 26(a)(2)(D). If these expert disclosures are not made, "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 is harmless." Fed.R.Civ.P. 37; see also Roberts ex rel. Johnson v. Galen of Virginia, 325 F.3d 776, 782 (6th Cir. 2003) ("Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with Rule 26(a)... [and] it mandates that a trial court punish a ...