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Barnes v. CXST Transportation, Inc.

United States District Court, W.D. Kentucky, Louisville

April 7, 2017



          Dave Whalin, United States District Court Magistrate Judge

         This matter is before the Magistrate Judge to consider the renewed motion of Defendant, CSXT Transportation, Inc. (CSXT) to strike the 4 experts identified by the Plaintiff, Harold Wayne Barnes, Jr.[1] CSXT requests that the experts, two vocational experts employed by the Kentucky Office for the Blind (OFB)[2], Barnes' treating optometrist[3] and his treating psychologist, [4] be excluded from providing expert testimony based on the alleged failure of Barnes to provide expert reports in accordance with Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. CSXT insists that these individuals are subject to the full reporting requirement for “retained or specially employed” witnesses because their opinions exceed their personal knowledge and were developed in anticipation of litigation, notwithstanding Barnes' ongoing claim that all of the witnesses fall within the “treating physician” exception to Rule 26(a)(2)(B). Because examination of the record, along with the cited legal authorities, readily persuades the Court that all four witnesses easily fit within the above exception, and because Barnes has provided CSXT with more than adequate timely, summary disclosures under Rule 26(a)(2)(C), the Motion to Strike is DENIED in its entirety for the reasons more fully set forth below.


         The Material Facts

         Harold Wayne “Bud” Barnes, Jr., is a former employee of CSXT. From 1997 until 2006, Barnes, a resident of Harrison County, Kentucky, held various positions with CSXT including for a number of years the position of “Yardmaster” at the Osborne train yard (Osborne Yard) located in Louisville, Kentucky, a job that he performed until 2004. Unfortunately, two years later in May of 2006, while Barnes was working as a manager of field investigations for CSXT, he and his daughter were involved in a serious automobile accident, which led to damage to his optic nerve, an incurable condition diagnosed by his treating optometrist, Dr. John Musick, O.D., as optic atrophy.[5]

         Treatment notes of Dr. Musick dated July 6, 2006 reflect Barnes' complaints of decreased vision and frequent headaches following the accident.[6] Visual acuity testing by the doctor on that occasion revealed 20/200 best vision in both Barnes' eyes. Barnes in the Health History Questionnaire he completed for Dr. Musick on the same date in 2006 also revealed a psychiatric history of depression.[7] Visual field testing of Barnes' eyes performed by Dr. Musick in June of 2011 confirmed the diagnosis, but also demonstrated that Barnes met the visual field requirements to operate an automobile using a bioptic assistive device.[8]

         After Barnes expressed an interest in driving an automobile, engaging in more family activities and possibly returning to work at CSXT, Dr. Musick referred him to the OFB.[9] Case Progress Records of July 7, 2011 reflect that Barnes initially met with vocational rehabilitation counselor Craig Callihan of the OFB in Lexington, Kentucky after being referred by Dr. Musick for participation in its bioptic driving program.[10] Dr. Musick provided the OFB with treatment records that confirmed the vision diagnosis of optic atrophy related to a traumatic brain injury incurred in the 2006 automobile accident.[11] Counselor Callihan's hand-written progress notes of the same 2011 date indicate that

With Barnes' vision impairment, he is unable to drive a vehicle unless he receives a bioptic device, specialized training and a bioptic driving license. He has significant difficulty reading the computer screen and cannot read standard [ ] without magnification. His best corrected visual acuities are 20/200 both eyes. Bud is very eager to return to work.

(DN 62, Response, Exh. 13, Case Progress Record of July 7, 2011, Bates No. CSXT 002369). Barnes on that occasion expressed his confidence that he could return to his previous railroad job with assistive visual devices such as computer magnification software, CCTV and the bioptic device.[12] Two months later, in September 2011, Callihan prepared a bioptic driving referral and authorized Dr. Musick to receive a bioptic device.[13]

         Barnes subsequently applied for re-employment at CSXT and in early August 2012 was contacted by Fred Crane, a Vocational Rehabilitation Counselor from the medical department of CSX Transportation, to arrange a conference call between the two men and Craig Callihan on August 6, 2012.[14] During the call on August 6, Crane explained that the job of Yardmaster at Louisville would involve the use of 3-4 computer monitors that display different types of information.[15] Crane requested Callihan's opinion during their conversation on whether Barnes had the ability to perform this function. Callihan explained that certain computer screen magnifying software programs existed, but that he and his OFB co-worker, Andre Ryssemus, Assistive Technology Specialist, would need to examine the work environment and the task demands at the Louisville Yard in order to determine what “AT” [assistive technology] to recommend and determine if it would enable Barnes to perform the duties of the Yardmaster job.[16]

         OFB Case notes dated two days later on August 8, 2012, reflect that Callihan received a call from Barnes to advise that Fred Crane of CSXT had requested that he take a vision color test and a visual field test with the results to be sent to Crane in Jacksonville, Florida.[17] Barnes, according to Callihan, related that when he first started employment with CSXT he had already been diagnosed with optic atrophy. Callihan spoke with Dr. Musick's assistant to explain Barnes' situation and to arrange an appointment with the doctor for testing.[18]

         The next day on August 9, 2012, Callihan received a call from Fred Crane at CSXT.[19]Crane explained to Callihan that” he had spoken with two supervisors at the Louisville CSXT operation, both of whom have expressed reservation about Barnes being able to work there because of vision concerns.”[20] Crane advised Callihan that in one location at the Osborne Yard there were six computer monitors on the Yardmaster's desk. Some of these monitors displayed color-coded schematics of the train tracks in the yard that use different colors to indicate the current status of the tracks at any given moment.[21] Accordingly, Crane expressed concern about Barnes' color vision perception problems and about computer monitor screen magnification, concerns which Crane explained caused the Chief Medical Officer for CSXT, Dr. Nielsen, to request that Barnes have a visual field test and a color vision test.[22]

         Dr. Musick administered visual testing to Barnes that same month and reported the results to Callihan at the OFB on August 28, 2012. Callihan's progress notes indicate that he immediately provided a copy of the doctor's report to Crane who had received it by August 30. The report of Dr. Musick revealed that Barnes had a field of vision of 120° and could distinguish between the colors red, green and amber.[23] These results according to the same progress notes led the CSXT Chief Medical Officer to request a meeting with Callihan, Ryssemus, Crane and another CSXT manager in Louisville at the Osborne Yard “to make sure whether accommodations can be made in the work environment which can meet the needs of a person with a visual impairment.”[24]

         Crane advised Callihan during their conversation on August 30 that CSXT currently had three open Yardmaster positions, but Barnes would be required to “qualify, or be able to function, in at least two of the three” positions, all of which involve the use of computer displays, and two of which also required the Yardmaster to personally overlook the train tracks on the yard through office windows. Crane told Callihan that CSXT wanted to be sure that Barnes could clearly see all of these computer monitors.[25]

         On September 20, 2012, Callihan and his co-worker, Ryssemus, met with Fred Crane and Don McCog, the Assistant Terminal Superintendent at the Osborne Yard in Louisville. Neither Barnes nor any attorney participated in this work site visit. Callihan's progress notes of the same date reflect that the group toured three different Yardmaster workstations (the “Hump Tower, ” “Bowl Tower” and “Mapother Tower”)[26] at the Osborne Yard; and, Callihan and Ryssemus discussed their observations with Crane, whose “role/responsibility, ” Callihan wrote, “is to determine, with input from OFB, if Bud (this consumer) can return to full employment with CSXT in a Yardmaster position or possibly in a different position.”[27] Callihan's notes then add that, “the probable next step is to have Bud complete the Ishihara color vision test by Dr. John Music or his staff; subsequent decisions by CSXT would be based on the outcome of that test, according to Mr. Crane.”[28]

         The following day on September 21, 2012, Crane contacted Callihan by email to provide a copy of the Ishihara color vision test and to advise that he had spoken with Dr. Nielsen, Chief Medical Officer for CSXT, who Crane related had advised that the color vision test “could result in a ‘go/no go' decision.”[29] Three days later on September 24 Callihan's notes indicate that, after speaking with the eye doctor's assistant, he faxed the color vision test form to Dr. Musick.[30]Barnes took the vision test at Dr. Musick's office and reported back to Callihan on September 28 that he had failed the test.[31]

         Barnes also reported on that occasion that he had received assurances that his union would support any appeal he took if he was denied re-employment by the CSXT medical department. Callihan at that time discussed with Barnes the duties and environment of the Yardmaster job at the Osborne Yard. Barnes expressed the opinion that he would have “no real problem with the tasks, ” but the two men agreed that he would need to have some assistive devices in order to read the computer monitors located in the Yardmaster's office.[32]

         This sequence of events led OFB employee Andre Ryssemus to prepare an Assistive Technology Services Evaluation Report dated October 8, 2012.[33] The 3-page Report indicated that Barnes had stopped by the OFB office six days earlier on October 2 to examine various magnification devices that could assist him “in getting back into a previous position of Yard Master he once held.”[34] Ryssemus explained in his Report that “the concerns that our office has from a visual perspective was [sic] color desertion, being able to look at various monitors simultaneously as well as viewing out into “the bowl” and the safety of the crew under the watch.”[35]

         The remainder of the Evaluation Report prepared by Ryssemus contains a detailed review of all of the work-related visual issues anticipated at the three Yardmaster workstations located at the Osborne Yard. It reflects that Ryssemus and Barnes not only discussed these work performance issues, i.e., adequately reading computer monitors and print materials, but also tested various visual assistive devices such as the Ruby Handheld magnifier and Da Vinci, Eschbach Detail and MaxTV glasses. Using these devices, Barnes, according to Ryssemus “was able to view both the monitor and various print materials on our walls with minimal effort.”[36]Barnes further advised Ryssemus that he would use binoculars to view objects located in the “bowl area” of the train yard.

         Ryssemus concluded the body of the report by noting that Barnes was eager to get back to work and felt that he could perform the essential functions of the Yardmaster position with minimal accommodation, which he believed that he could prove to CSXT through its simulation program that he can do the job.[37] Ryssemus therefore recommended, based on his interaction with Barnes, that the OFB order the Ruby Handheld magnifier and Da Vinci Eschbach visual aid system.[38] Despite Barnes eagerness to return to work, CSXT denied his application for re-employment as Yardmaster, which led Barnes to file an administrative charge of disability discrimination with the EEOC on October 15, 2012.

         On February 11, 2013, Callihan and Ryssemus prepared a detailed letter report on official OFB stationary addressed to Fred Crane at CSXT[39] In their report, the two men related that Barnes had been in the OFB office on January 7, 2013 to try out “several different low vision devices for near and distant viewing.”[40] While they conceded that none of the OFB staff are opticians or optometrists, and that they did not have the capability to duplicate the physical environment of the Yardmaster workstations at the Osborne Yard, Callihan and Ryssemus nonetheless were able to report that using a combination of the visual assistive devices “Barnes was able to read near-, mid- and far-distance objects.”[41]

         Specifically, using the Eschenbach Max Detail glasses within a Windows 7 environment on a 24” monitor, Barnes was reported to be “able to function well in navigating around the computer screen desktop and various software programs.”[42] With the AiSquared Zoom Text screen magnification software at 3-4X magnification with negative contrast, Barnes was noted to be able to read material in an Arial 8pt font. When Barnes used the Eschenbach Max TV glasses at dpf, Callihan and Ryssemus reported that, he was “able to view and describe to us various shapes and lettering within 25 feet” and “was able to read the awning of an auto body shop approximately one block away as well as a sign painted on the door of a pickup truck at a distance of approximately 50 yards with the use of his bioptic telescope.” In their report, they advised that “Barnes performed well with the hand-held CCTV magnifiers such as the Freedom Scientific Ruby and the HIMS Lifestyle Candy using the negative contrast at various magnification levels.”[43] Finally, Barnes also was noted to do well with the Enhanced Vision Da Vinci CCTV as a standalone desktop magnification unit, again being able to read Arial 8pt font.[44] Callihan and Ryssemus concluded their letter report with the following summation:

In summary, with either a handheld or desktop CCTV magnifier, he is able to easily read handwritten or print documents. With some magnifying eyeglasses, he is able to read the computer screen. Any accessibility features available in the software or operating systems, along with larger computer monitors, would be helpful. With the bioptic device he uses for driving, he was able to read various items of signage stated and that with continued practice he will be able to use the device for spot checking areas on the yard. Incidentally, we observed no symptoms of eye fatigue while trying these devices at our office.
From the experience at our office earlier this month, along with our earlier observations at the Osborne Yard, it is the opinion of the undersigned that with the proper assistive devices Mr. Barnes can carry out the essential job functions of a railroad yardmaster. Although we recognize his capability in completing the outlined job tasks as we have evaluated, there are always in every job, instances beyond control that occur. We are offering our professional opinion on behalf of our consumer and realize the ultimate decision on employment will depend on CSXT.

(DN 62, Exh. 6, February 11, 2013 letter to Fred Crane at Bates CSXT 002500-002501.)

         Three months later on May 24, 2013, Barnes filed his present suit against CXST in federal court.[45] In his complaint, Barnes alleged that CSXT violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq. and the Kentucky Civil Rights Act (KCRA), KRS § 344.040 when it denied his 2012 application for re-employment as Yardmaster due to his vision impairment, despite his prior employment with CSXT in the same position with the same optic atrophy condition, and his ability to perform the essential functions of the Yardmaster job with reasonable accommodation. Ten months after Barnes brought suit, in February 2014, he reestablished contact with Lexington licensed psychologist, Marc Plavin, Ph.D., of the Behavioral Health & Wellness Center, PSC.

         Barnes originally began treatment with Plavin's practice partner, psychiatrist Dr. Ila Patel, six years prior on March 5, 2008, when he appeared before Dr. Patel for medication review, following referral by his psychotherapist. Barnes presented with complaints of ongoing depression and related symptoms of worthlessness, insomnia, irritability, suicidal thoughts and nightmares attributed to his May 2006 automobile accident, which he reported had led him originally to begin therapy in June 2006.[46]

         Dr. Patel's impression on that date was that Barnes had “suffered significant vision loss and depression with recurrent nightmares about the accident and periodic flashbacks, anxiety and panic attacks. Due to his being not able to work he feels hopeless, helpless and feels like he is not a productive member of society.”[47] Dr. Patel diagnosed “Major Depression, Severe; PTSD, Chronic” along with blindness, neck and back pain, and headache.[48] Dr. Marc Plavin performed his own initial psychological evaluation of Barnes the following month on April 11, 2008, which resulted in a treatment report containing the same subjective complaints, medical history and diagnostic impressions.[49]

         A review of Dr. Plavin's treatment notes reflects that Barnes continued regular treatment with Dr. Plavin, usually on a monthly, and sometimes bi-weekly, basis throughout 2008, 2009 and more sporadically in 2010.[50] The doctor's notes contain multiple references to sadness, worry and anxiety related to Barnes' accident-related physical, mental and employment problems, along with his prior dispute involving CSXT and his insurance company.[51] Dr. Plavin's notes from February 20, 2009 indicate that Barnes was “filing lawsuit today;”[52]however, notes from the following month correct that the lawsuit was “not filed as planned.”[53]

         Barnes continued to talk with Dr. Plavin about his desire to work and his struggles to accept his limitations.[54] Dr. Plavin's progress notes of May 11, 2009 indicate that the “case got filed” and “three [law] firms involved.”[55] Two months later, on July 9, 2009, Barnes reported to Dr. Plavin that Barnes was “doing depositions, [and] IMEs.”[56] Barnes was observed as being depressed and anxious with occasional suicidal thoughts.[57] As of August 25, 2009 Dr. Plavin's diagnosis remained PTSD, chronic.[58] December 16, 2009 progress notes of Dr. Plavin state that the “Case against the RR was dismissed in federal court. Appealing case.”[59]

         Barnes continued his psychiatric treatment with Dr. Plavin on three occasions in 2010 with little change in his complaints of depression, insomnia, frustration and nightmares.[60] On March 2, 2010, Plavin reported that an unnamed “judge said Bud had no case against CSX.”[61]The following month on April 15, 2010, Barnes reported that his “own case [was] in appeals court in Cincy.” Over a year later on July 18, 2011, Dr. Plavin's next note indicates that the doctor spoke with Barnes who then reported “great news” that he was able to drive using binocular equipment. Barnes thanked the Dr. for helping him and being supportive.[62] No further contact occurred between the two men until February 21, 2014, when Dr. Plavin's notes indicate that he again spoke with “Bud” who told the doctor that he would like to return for therapy.[63]

         Barnes resumed active psychological treatment with Dr. Plavin on March 27, 2014.[64]Barnes on that date again related his May 5, 2006 automobile accident and resulting injuries, adding that he had been “fitted with special glasses and [was] now able to drive.” Barnes told the doctor that the Office of the Blind was supporting his efforts to return to work, that he had his doctor's okay, “but CSX says no.”[65] Barnes advised that he had “hired lawyers.”[66] Dr. Plavin's initial visit notes reflect that Barnes still had some PTSD symptoms related to the accident, although his “physical issues from accident [were] somewhat improved” and that Barnes was “no longer taking medication for anxiety or depression.”[67] In the section of the initial visit report for “work history, ” Dr. Plavin noted that Barnes had worked for CSXT for many years in different capacities and wanted to return to work as yardmaster but CSXT would not make recommended accommodations.[68] Dr. Plavin diagnosed Depressive Disorder and PTSD, chronic.[69]


         Relevant Procedural History

         During the events immediately above, Barnes and CSXT proceeded with their current federal litigation. The initial scheduling order of the District Court entered on September 30, 2013 established an expert witness deadline for the plaintiff of June 2, 2014.[70] This deadline subsequently was extended to August 4, 2014 on the motion of the Plaintiff for an extension of time to complete discovery.[71] CSXT then filed an unopposed motion to further amend/correct the amended scheduling order to extend its own time to disclose its expert witnesses to January 11, 2015 .[72] The District Court granted the motion by order September 22, 2014.[73] Exactly one week later, CSXT filed its first motion to strike the Plaintiff's identified experts on September 29.[74]

         Eight weeks earlier Barnes had on August 4, 2014 served CSXT with his “Firs[t] Supplemental Response to Interrogatory Answers and Disclosure of Witnesses Providing FRE 702 Testimony.”[75] The disclosure identified Callihan and Ryssemus, their employer, their respective job titles, their office location, the general nature of their proposed expert testimony, the factual basis for their anticipated testimony, and the Bates numbers for the specific treatment records cited as support.[76] The same disclosure also identified by name optometrist, Dr. John Musick and psychologist Dr. Marc Plavin, providing with respect to each man all of the same type of information that was provided concerning Callihan and Ryssemus, i.e., name, title, office address, general nature of anticipated testimony, the factual basis for such testimony, citations to specific Bates numbered documents for the supporting treatment records and disclaimer that no Rule 26(a)(2)(B) report would be provided because the witness was not a retained expert but was a treating provider for whom no arrangement had been made to provide compensation in exchange for his anticipated testimony.[77] Barnes attached to his disclosure: the “Worksite observation/job analysis” report prepared by Callihan and Ryssemus based on their September 20, 2012 inspection of the Osborne Yard; the “Assistive Technology Services Evaluation Report” prepared by Ryssemus on October 2, 2012; and, the February 11, 2013 official letter of Callihan and Ryssemus to CSXT vocational rehabilitation specialist Fred Crane concerning assistive technology recommendations involving Barnes and their opinion of his ability to carry out the essential job functions of the railroad yardmaster with such devices.[78]

         In mid-September 2014 counsel for CSXT and Barnes exchanged several email communications and telephone calls concerning the status of Barnes' identified experts with the dispute centered on whether the four witnesses were excluded from the full expert report requirements for a retained or specially employed expert witnesses under Rule 26(a)(2)(B) by operation of the “treating physician” exception and related provisions of Rule 26(a)(2)(C).[79]Examination of this exchange reveals that CSXT continued in its belief that the absence of any specific remuneration from Barnes to any of the four identified witnesses in exchange for their anticipated opinions did not exempt the witnesses from the full expert report requirements of the Rule, given the ongoing belief of CSXT that each of the witnesses was testifying to matters beyond his own personal knowledge and supposedly had been specifically retained in anticipation of litigation.[80]

         Following the administrative reassignment of the parties' case to the current District Court in late 2014, and the ensuing, unsuccessful efforts at settlement throughout summer and early fall of 2015, the Magistrate Judge conducted a telephonic status conference on September 1, 2015. The initial motion to strike the Plaintiff's identified experts was administratively remanded at that point without prejudice to CSXT to re-file.[81] Discovery at that time also remained stayed until the stay was lifted and CSXT granted leave by order entered on September 30, 2015 to refile its motion to strike.[82] After the parties re-filed their motions in October and November 2015, [83] The Magistrate Judge, following a telephonic conference on November 16, 2015, [84] again remanded the motion briefly while staying expert witness depositions pending the ultimate resolution of the motion to strike by the District Court.[85]

         In January and February 2016, the parties refiled their motion papers.[86] The District Court later referred all nondispositive motions to the Magistrate Judge by Order of August 22, 2016.[87] On October 3, 2016 the Magistrate Judge ordered the parties to file supplemental memorandum of law.[88] The Order in particular directed Barnes as follows:

The [Plaintiff's Supplemental] Memorandum shall set forth in detail all of the opinions to be offered by each of the Plaintiff's four expert witnesses along with the facts and documents on which each such opinion is based. Plaintiff also shall include in the Memorandum citation to all case authority in support of its current position on the application of Rule 26(a)(2)(B) and (C)

(DN 67, Order of October 4, 2016, p. 1).

         Barnes filed his supplemental memorandum and supporting documents in accordance with the direction of the court, and CSXT filed a timely supplemental response.[89] In compliance with the Order, Barnes set forth in his supplemental memorandum each of the anticipated opinions to be expressed by his four expert witnesses along with the basis for each such opinion and specific references to the Bates numbered documents offered in support of each opinion.[90]


         Arguments of the Movant


         Throughout its ongoing efforts to strike Barnes' designated experts, the basic position of CSXT on the matter has remained constant. Elaboration aside, CSXT insists that the full disclosure requirements of Rule 26(a)(2)(B) for retained or specially employed expert witnesses apply to all four of the identified individuals - - Callihan, Ryssemus, Drs. Musick and Plavin. CSXT rejects the notion offered by Barnes that all four men fit within the “treating physician” exception of Rule 26(a)(2)(C) merely because (1) each identified individual had a pre-existing professional relationship with him that began years before he filed his current complaint in May of 2013 and (2) none of them have been paid by Barnes in return for his anticipated testimony, as opposed to being compensated for his professional medical or vocational services. The critical consideration in the view of CSXT “is whether the proposed testimony of the expert . . . goes beyond his own personal knowledge and experience and/or . . . [was] developed in anticipation of litigation.”[91] CSXT concludes that “the reality . . . [of] the broad, conclusory opinions set forth in [Barnes'] August 4, 2014 disclosures confirm[s] they are called upon to testify beyond their personal knowledge and/or in anticipation of litigation.” Consequently, the ongoing refusal of Barnes to supply fully-compliant expert reports that satisfy all the criteria of Rule 26(a)(2)(B)(i)-(vi) justifies striking all four designated experts pursuant to the terms of Rule 37.

         CSXT continues to explain that the legal conclusion of whether an individual can or cannot meet the essential functions of the job position of Yardmaster is just that - - a legal conclusion and not a proper subject for expert opinion testimony.[92] Further, to the extent that any identified expert would hope to offer such inappropriate testimony in the present case, CSXT adds that such an effort would not be based on his personal knowledge, but rather instead on “a review of information gleaned in this litigation.”[93] Such opinions, according to CSXT, do not fall within the nature of information that a physician would normally obtain through his or her required medical training, but rather falls closer to the type of causation testimony that “everyone agrees requires a report within the meaning of Rule 26(a)(2)(B).”[94]

         To underscore the point, CSXT offers Charles v. Print Fulfillment Services, No. 3:11-CV-553-H, 2014 WL 169666 at *2 (W.D. Ky. Jan. 13, 2014) as an example of a situation in which a court ordered the production of full expert reports under Rule 26(a)(2)(B) even though certain of the “hybrid” expert opinions at issue were developed prior to the institution of litigation and not in anticipation of it. Because the default position under Rule 26(a)(2) is to require full expert reports, CSXT reasons, similar to Print Fulfillment Services, that the present Court should “err on the side of caution” and, given the adamant refusal of Barnes to comply with the Rule, strike his expert witnesses, none of whom comfortably fit within the category of a treating physician working to “heal the patient.”[95]

         CSXT offers a number of additional reasons for the requested relief. It points out first that Barnes in his Response to the Renewed Motion to Strike admits that at one point he previously explored using the testimony of a hired expert to offer the very same opinions he now insists are subject to the treating physician exception. If a retained expert was considered by Barnes to be the appropriate witness to offer such opinions, then it is difficult for CSXT to see how he can convince the Court that these same opinions now should be treated differently merely because Barnes hopes to assert them through the currently identified individuals.

         Second, CSXT argues that Barnes' approach would turn the requirements of Rule 26(a)(2) on their head to encourage litigants to establish a pre-trial relationship with their expert witnesses solely in an effort to avoid the expert witness report requirements of Rule 26(a)(2)(B) just as Barnes himself has done. Barnes only explanation in this regard, according to CSXT, is that he seeks to avoid the unstated costs of paying for his chosen experts to prepare their reports, an as-yet unquantified economic consideration that is legally irrelevant to the question of whether the reports must be produced in the first instance.

         CSXT suspects that the true reason that Barnes has studiously avoided the expert report requirement has little to do with money, but rather the unavoidable reality that the production of expert reports under Rule 26(a)(2)(B) would reveal the inappropriately broad role he hopes his experts will take, given that absent such reports the Court and CSXT “will be forced to guess as to the expert's qualifications and whether any testimony they offer is within the realm of any expertise they may have . . . .”[96]

         Without the required expert witness reports, and the vital information therein, CSXT concludes that it will be left with only further motion practice concerning the appropriate scope of the experts' opinions, while simultaneously being stymied in its efforts to complete expert depositions, which normally follow the production of expert witness reports, not precede them as Barnes seems to suggest, contrary to R.C. Olstead, Inc v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010)(expert witness reports under Rule 26(a)(2)(B)are required to prevent “ambush” litigation tactics during expert depositions). What Barnes has produced to date is insufficient in the view of CSXT even to satisfy the summary expert report requirement of Rule 26(a)(2)(C) so that if the Court will not strike the expert's outright, it should at least compel Barnes to provide adequate Rule 26(a)(2)(c) summary reports and appropriately limit the testimony of his four experts to events up to October 3, 2012, the date on which CSXT declined to re-employ Barnes as Yardmaster at the Osborne Yard in Louisville. See, Kristensen ex rel. Kristensen v. Spotnitz, 3:09-CV-00084, 2011 WL 5320686 at *2 (W.D Va. June 3, 2011) (plaintiff's reference to voluminous medical records does not qualify as an adequate summary of facts and opinions); Nicastle v. Adams Cty. Sheriff's Office, No. 10-cv-00816, 2011 WL 1674954, at *1 (D. Colo. May 3, 2011)(same).

         In its various motion papers, CSXT sites to a variety of federal court decisions in support of the fundamental arguments outlined above. For example, CSXT explains that the existence of a pre-existing relationship as being secondary to the nature of the proposed testimony of the expert is supported not only by Print Fulfillment Services according to CSXT, but also by Hinkle v. Ford Motor Co., No. 3:11-24-DCR, 2013 WL 1992834 (E.D. Ky. May 13, 2013) and Ridder v. City of Springfield, No. 9503358, 1997 WL 117024, at *4 (6th Cir. Mar. 13, 1997). The requirement of a full expert report when the opinion goes outside an expert's personal knowledge, or was formed in anticipation of litigation, likewise is supported in CSXT's view by Fielden v. CSX Transp., 482 F.3d 866, 871 (6th Cir. 2007) and Ulbrick v. UPR Prods., No. 08-cv-13764, 2011 WL 500034 (E.D. Mich. Feb. 8, 2011). Finally, CSXT adds that Print Fulfillment and UPR Products hold that whether a party compensates an expert is not determinative of the question of whether that expert, by the very nature of his or her opinions, is considered to be “retained or specially employed to provide expert testimony in the case” under Rule 26(a)(2)(B).

         CSXT in its Reply also observes that Barnes has failed to undermine, or otherwise dispute, its cited case authority of Widhelm v. Walmart Stores, Inc. 162 F RD 591, 592 (D Neb. 1995), which suggests that even a treating physician is required to provide a Rule 26(a)(2)(B) expert report when he testifies to the issue of disability arising from the impaired vision of his patient. Id. Barnes likewise, CSXT insists, does not dispute the proposition reflected in Print Fulfillment, 2014 WL 169666 at *2, that vocational experts such as Callihan and Ryssemus typically are required to provide full expert reports.

         Such reports CSXT explains are particularly appropriate in the present instance where the two OFB experts routinely appear to rely on the records of “another expert as well as documents and job information received from CSXT” as fundamental support for their ultimate (and inappropriate) legal conclusion that Barnes could perform the essential functions of the Yardmaster position with reasonable accommodation. CSXT in this respect protests that the OFB experts are quite similar to the expert in Mohney v. USA, Hockey, Inc., 300 F.Supp.2d 556, 561 (N.D. Ohio 2004), a treating physician nonetheless who relied upon subsequently obtained information, the post-incident review of a videotape, to express an opinion that was not set forth in a Rule 26(a)(2)(B) expert witness report as required. Because the anticipated opinions of the OFB experts are not similar to those, more limited opinions of a treating physician, but are based upon information obtained from other experts, in some instances after the critical October 3, 2012 date, CSXT renews its request for their exclusion as expert witnesses.

         The same considerations apply with equal force to the anticipated opinions of Dr. Plavin, whom CSXT notes admittedly also has relied on statements from other experts in support of his proposed testimony concerning Barnes' emotional distress - - an occurrence that confirms to CSXT that the doctor was not acting as a treating physician to that extent as his testimony “is not limited to an evaluation of the plaintiff for the purpose of healing him.”[97] Further, it is equally noteworthy according to CSXT that Barnes went without treatment by Dr. Plavin for over four years from early 2010 until 2014, the year after he filed the present suit in late May of 2013.


         CSXT in its supplemental response[98] raises a number of new arguments based on the contents of Barnes' Supplemental Memorandum[99] and the anticipated expert opinions that he identified therein at pages 2-10. For example, CSXT argues that Barnes, after unsuccessfully attempting to establish a “poverty exception” to the expert witness report requirement of Rule 26(a)(2)(B) now apparently seeks to concoct a new “government employee” exception to the report requirement for OFB employees Callihan and Ryssemus contrary to In re Air Crash at Charlotte, N.C. on July 2, 1994, 982 F.Supp. 1086 (D.S.C. 1997) (former employees of the NTSB who previously participated in air disaster investigation were not exempt from the expert report requirements). CSXT strongly disputes the novel notion that Kentucky statutory law makes it impossible for state employees Callihan or Ryssemuss to comply with Rule 26(a)(2)(B).

         Beyond the prospect of a newly created government employee exception, the Supplemental Memorandum of Barnes merely serves in the view of CSXT to highlight the ever-changing and often contradictory nature of the proposed expert opinions of Barnes' four experts. These opinions even in their most recent manifestation remain well beyond the underlying policy of the “treating physician” exception of Rule 26(a)(2)(C) according to CSXT. They are instead broad testimony on the ultimate legal question of whether he remains capable of performing the essential functions of the Yardmaster position with or without reasonable accommodation.

         Once again, CSXT insists that any such opinion testimony “is far more akin to causation testimony than typical “treating physician” testimony”[100] and strongly suggests that Barnes' experts have morphed from their claimed treating physician status into retained experts under Rule 26(a)(2)(B). Because their anticipated testimony relies on after-the-fact analysis based on the review of information from other experts, all of the factors set forth in Print Fulfillment compel the common sense conclusion that the full expert witness report requirements are essential and remain unsatisfied to date, some 2.5 years later. To hold otherwise, CSXT insists would exempt from the purview of Rule26(a)(2)(B) any proposed expert who merely happened to provide professional services to a party before suit was filed, irrespective of the fundamental nature of their testimony as ranging far beyond the course of the party's treatment. Under such extraordinary circumstances the exception would swallow the Rule according to CSXT.

         To complicate matters, Barnes in his Supplemental Memorandum appears to CSXT to reserve to himself the right for his expert witnesses to offer certain other, currently undescribed opinions based on future events. This type of “moving target” approach simply confirms to CSXT that these experts in reality function as retained expert witnesses acting together in a “coordinated advocacy effort”[101] rather than treating professionals. Otherwise, Barnes seems to CSXT to use his Supplement merely to rehash the same unpersuasive arguments that he has clung to throughout the proceedings contrary to the controlling judicial decisions of the federal courts of the Sixth Circuit such as Fielden, Print Fulfillment, Mohney previously cited by CSXT in its prior motion papers.

         If that were not enough, CSXT notes that the recently revised opinions of Barnes' experts contained in his Supplemental Memorandum in certain instances exceed or conflict with prior versions of the experts anticipated opinion testimony. For example, Barnes initially indicated in his August 4, 2014 disclosure that Dr. Musick would offer the opinion that Barnes can meet the visual and color acuity requirements of the Yardmaster job with the use of visual assistive devices.[102] Now, more than two years later, none of the listed 14 opinions set forth in the Supplemental Memorandum includes the above-stated opinion of Dr. Musick. The result, according to CSXT, is that it simply is left to guess about the substance of the doctor's opinions, which Barnes appears to suggest are not limited to those set forth in the Supplemental Memorandum, but rather may include additional, presently unstated opinions acquired at some unknown future date.

         The same type of conflicting statements, CSXT points out, arise with regard to the anticipated expert testimony of Dr. Plavin. Originally, Barnes indicated that Dr. Plavin would rely on the records of the OFB and Dr. Music to offer the opinion that his emotional distress was the result of CSXT's refusal to reemploy him. Now, Barnes, contrary to his earlier representation, appears to indicate in his Supplemental Memorandum that Dr. Plavin will more generally testify and focus on Barnes' auto accident and previous litigation with CSXT as the source of his emotional distress. Nowhere in the Supplemental Memorandum does Barnes appear to refer to the earlier referenced records of the OFB or those of Dr. Musick. According to CSXT, these examples highlight the type of dilemma it now faces, absent full expert witness reports, to anticipate the wide ranging and apparently ever-changing opinions of Barnes' expert witnesses. For these reasons CSXT reiterates that Drs. Plavin and Musick are no less retained experts for the purposes of report requirement of Rule 26(a)(2)(B) than Callihan or Ryssemus.


         Legal Analysis


         The question of whether Barnes' four expert witnesses are “retained or specially employed to provide expert testimony in the case” is the critical issue for the purposes of CSXT's long-standing motion to strike. If the experts were retained or specially employed by Barnes to testify, then he would be subject to the strict expert witness report requirements set forth in subsection (B) of the Rule below. Because Barnes admittedly has not filed such expert reports, he would be potentially subject to the penalties of Rule 37(c) assuming the Court were to conclude that such reports are required under Rule 26(a)(2)(B) and that his failure to provide them was not substantially justified or otherwise harmless. If, however, the four experts do not fall within this category, but rather will testify as hybrid expert witnesses only to matters and opinions that they developed in the course of their professional interaction with Barnes, as he repeatedly claims, then Callihan, Ryssemus, Dr. Musick and Dr. Plavin will be subject only to the less demanding summary report requirements of subsection (C) of the Rule, which Barnes claims that he has satisfied by his prior disclosures.

         Resolution of this dispute is governed in whole by the language and case law of Rule 26(a)(2)(B) and (C), which provide that:

(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
(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 in the case.
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence ...

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