G. THOMAS PORTEOUS, Jr., United States District Judge.
Before the Court is a Motion to Strike filed on behalf of the Defendant, United States of America, seeking to have the testimony of Plainitff's witness, Dr. A. Jay Binder stricken from the trial of this matter based on the Plainitff's failure to meet the expert disclosure requirements of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure and the disclosure deadlines set forth in this Court's scheduling order. Additionally, the Defendant seeks to have the testimony of three additional experts stricken from the trial of this matter due to the failure of the Plainitff to furnish the Defendant with the required expert reports. This cause came before the Court for hearing on February 14, 2001. The parties waived oral argument and the matter was submitted for the Court's consideration on the briefs. The Court, having reviewed the record, the arguments of the parties, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
Background:
The matter presently before this Court concerns the production of certain documents by the Plaintiff pursuant to the Federal Rules of Civil Procedure and the scheduling order issued by this Court on September 19, 2000. The Defendant filed the instant Motion to Strike Expert Witness Testimony claiming that the Plainitff failed to comply with Rule 26(a)(2)(B) by producing merely a single narrative report of Dr. Binder, rather than the full information required under the Federal Rules of Civil Procedure. The Defendant argues that the testimony of Dr. Binder should therefore be stricken from the trial in this matter.
In addition, the Defendant seeks to have the testimony of four other experts listed by the Plaintiff for failure to disclose their opinions. However, with regard to the four additional experts, the Plaintiff has advised this Court that she does not intend to call the other doctors as expert witnesses. Therefore, the Defendant's Motion to Strike, in so far as it applies to the four additional doctors mentioned, is deemed moot. Accordingly, this Order will only address the Defendant's Motion as it pertains to Dr. Binder.
In opposition to the Defendant's Motion to Strike, the Plaintiff argues that it provided the Defendant with "more than adequate disclosure concerning its expert." (Plaintiff's Memorandum in Opposition to Defendant's Motion to Strike Expert Witness Testimony, page 1). Furthermore, the Plaintiff argues that Dr. Binder's testimony is crucial to the Plainitff's case and his exclusion as a witness would be severely prejudicial. See id. Thus, the Plainitff argues that this Court should deny the Defendant's Motion to Strike pursuant to Rule 37 of the Federal Rules of Civil Procedure.
Law and Analysis:
Trial in the above-captioned matter is set to commence on Monday. April 2, 2001, with the final pre-trial conference to be held on March 15, 2001. The pertinent deadlines contained in the scheduling order with regard to the production of expert witness reports is as follows:
[w]ritten reports of experts, including treating physicians, who may be witnesses for Plaintiffs fully setting forth all matters about which they will testify and the basis therefor shall be obtained and delivered to counsel for Defendant as soon as possible, but in no event later than 90 days prior to Final Pretrial Conference Date.
(See Scheduling Order, Doc. 6, September 19, 2000).
Accordingly, the scheduling order required the Plainitff to provide the Defendant with the requisite expert reports no later than December 15, 2000. On that date, the Plaintiff provided the Defendant with a narrative "report" of Dr. Binder that apparently contains a summary of his medical treatment of the Plaintiff to date. However, no other information regarding Dr. Binder or his qualifications as an expert has been furnished to the Defendant.
Federal Rule of Civil Procedure 26(a)(2)(A) provides that ". . . a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence." Fed.R.Civ.P. 26(a)(2)(A). With regard to the required disclosure, Rule 26(a)(2)(B) goes on to state that:
[e]xcept as otherwise stipulated or directed by the court, this disclosure shall with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The Report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinion; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Fed.R.Civ.P. 26(a)(2)(B).
Moreover, Rule 26(e) requires a party to supplement or correct the disclosure or response to include information thereafter acquired. See Fed.R.Civ.P. 26(e). This duty extends both to information contained in an experts report and to information provided through a deposition of the expert and any additions or changes to this information. See id.
As mentioned above, the only information that the Plaintiff has provided the Defendant with regard to Dr. Binder is merely the narrative dated December 8, 2000. (See Defendant's Memorandum in Support of Motion to Strike Expert Witness Testimony, Exhibit A). Accordingly, the Defendant argues that Dr. Binder should be precluded from testifying at trial in this matter because the "expert report" submitted by the Plainitff does not comply with the requirements of Rule 26(a)(2)(B), especially with regard to any opinions as to medical causation. See id. at 2.
Rule 37 of the Federal Rules of Civil Procedure states that "a party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial . . . any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1). In determining whether or not to exclude a witness's testimony under Rule 37, the Court is to consider the following factors: (1) the importance of the witness's testimony; (2) the prejudice to the opposing party of allowing the witness to testify; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation, if any, given for the party's failure to comply with the discovery order. See Sierra Club, Lone Star Chap v. Cedar Point Oil, 73 F.3d 546, 572 (5th Cir. 1996) (citing Bradley v. United States, 866 F.2d 120, 125 (5th Cir. 1989)).
After considering the situation before this Court in light of the Federal Rules and the four factors listed above, this Court finds that striking Dr. Binder's testimony from trial is not warranted in the present case. While the mere narrative report supplied to the Defendant falls short of the specific disclosure requirements of Rule 26(a)(2)(B) for experts, this Court does not think that its shortcomings warrant Dr. Binder's testimony being completely stricken from trial. However, while this Court will allow Dr. Binder to testify in the present case, this Court will limit his testimony to that of a fact witness.
As the Plaintiff's treating physician, Dr. Binder may testify in this case to the extent that his testimony is based on his observations made while treating the Plaintiff. He will be allowed to give testimony related to the medical assessments documented in his narrative report, as well as testimony consisting of "translations" of the Plaintiff's medical records. This Court is of the opinion that such a ruling is fair and equitable in the instant case, for it does not limit the Defendant's ability to lodge future objections during the course of Dr. Binder's testimony should the questioning fall outside of the scope of his treatment of the Plaintiff.
Accordingly,
IT IS ORDERED that the Defendant's Motion to Strike the Expert Witness Testimony be, and the same is, hereby DENIED. However, the Plaintiff will be restricted to eliciting testimony from Dr. Binder based on his status as the Plaintiff's treating physician, not as a general medical expert.