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Robertson v. Holt

United States District Court, E.D. Kentucky

July 1, 2015

O.D. ROBERTSON, et al.
v.
WILLIAM A. HOLT, et al., Defendants.

SOUTHERN DIVISION AT LONDON PLAINTIFFS MEMORANDUM ORDER

DAVID L. BUNNING, District Judge.

This matter is before the Court upon Plaintiffs' Motion to Modify (Doc. # 24) the Court's Order of May 1, 2015 (Doc. # 23). In that Order, the Court noted that Plaintiffs missed the expert witness disclosure deadline by three months and failed to request an extension until Defendant Pro Logistics, Inc. moved to exclude their expert testimony.[1] Because Plaintiffs had "neither responded to Defendant's Motion in Limine nor offered good reasons for failure to comply with Court-imposed deadlines, " the Court precluded them from relying upon retained and non-retained expert medical testimony. ( Id. ). The Court also precluded Plaintiffs from "introducing evidence or testimony regarding permanence of Plaintiffs' injuries or impairment of earning capacity." ( Id. ).

Plaintiffs now argue that their treating physicians should be exempt from Federal Rule of Civil Procedure 26(a)(2)(B) because they are fact witnesses with personal knowledge of Plaintiffs' injuries, impairments and pain and suffering, rather than retained experts.[2] Plaintiffs therefore ask that the Court allow their treating physicians to testify at trial. Defendant opposes such relief, noting that Federal Rule of Civil Procedure 26(a)(2)(C) requires parties to disclose treating physicians who will offer expert opinions at trial.

Federal Rule of Civil Procedure 26(a)(2)(B) governs disclosure rules for witnesses retained specifically for the purpose of giving expert testimony at trial:

(2) Disclosure of Expert Testimony.
...
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report-prepared and signed by the witness-if the 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 report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony of the case.

Because Plaintiffs' treating physicians were not retained for the purpose of giving expert testimony at trial, Plaintiffs are correct in stating that they were not subject to Rule ...


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