United States District Court, D. Montana, Missoula Division
W. Malloy, District Judge United States District Court
September 23, 2016, Randy and Claudia Childress gave their
car keys to an employee in the Tire Center of Defendant
Costco Wholesale Corporation to get their tires rotated.
(Doc. 12 at ¶ 3(d).) Their keys were then given to
another individual who drove away in their car.
(Id.) They sued Costco, alleging negligence (Counts
1, 4), bailment (Count 2), and negligent infliction of
emotional distress (Count 3). (See Doc. 13.) At the
April 11, 2019 final pretrial conference, the parties were
given the opportunity to argue Costco's request to
exclude the expert testimony of Timothy J. Stoddard, a
psychiatrist noticed by the Childresses. Ultimately, the
inadequacy of Mr. Stoddard's expert disclosure excludes
his opinion testimony at trial, but he is permitted to
testify as a fact witness. C.f. Apex Abrasives
v. WG1 Heavy Minerals, Inc., 2019 WL 1403111 (D. Mont.
Mar. 28, 2019).
are required to make their expert disclosures at the time and
in the manner ordered by the Court. Goodman v. Staples
The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir.
2011). If a party fails to properly disclose this
information, the party cannot use the non-disclosed
information at trial "unless the failure was
substantially justified or is harmless." Fed.R.Civ.P.
37(c)(1); Yeti by Molloy, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). The parties
were reminded of this potential sanction in the Scheduling
Order, which states: "An inadequate report or disclosure
may result in exclusion of the expert's opinions at trial
even though the expert has been deposed." (Doc. 12 at
26(a)(2) provides for disclosures by two types of expert:
those retained or specifically employed to give expert
testimony in a case, Fed.R.Civ.P. 26(a)(2)(B), and those who
are not retained or specially employed, but who nonetheless
may provide expert testimony, Fed.R.Civ.P. 26(a)(2)(C). An
expert who falls into the first category is required to
provide an expert report. Fed.R.Civ.P. 26(a)(2)(B). An expert
who falls into the second category, however, need only
provide disclosures stating both "the subject matter on
which the witness is expected to present evidence under
Federal Rule of Evidence 702, 703, or 705  and ... a
summary of the facts and opinions to which the witness is
expected to testify." Fed.R.Civ.P. 26(a)(2)(C)(i), (ii).
Dr. Stoddard was disclosed as a non-retained, treating
physician under Rule 26(a)(2)(C). Costco argues that Dr.
Stoddard does not qualify as a treating physician because
Randy Childress went to see him only one time and it was for
the specific purpose of getting an expert opinion in
anticipation of litigation. Thus, according to Costco, Dr.
Stoddard was required to provide an expert report under Rule
26(a)(2)(B). The Childresses argue that Dr. Stoddard should
be able to testify to his meeting with Randy, the course of
treatment he prescribed, and explain why he prescribed that
course of treatment. Costco has the better argument.
treating physician is only exempt from Rule 26(a)(2)(B)'s
written report requirement to the extent his opinion was
formed during the course of treatment, i.e., to the
expert's percipient opinions. Goodman, 664 F.3d
at 826; see Tarter v. Throne Law Office, P.C., 2019
WL 609337, at *3-4 (D. Mont. Feb. 13, 2019) (collecting
cases). "[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)."
Meyers v. Nat'l KR. Passenger Corp., 619 F.3d
729, 734-35 (7th Cir. 2010).
is no dispute that Randy only saw Dr. Stoddard one time.
Additionally, his medical records from his treating
physician, Dr. April Roberts, indicate that Randy needed to
get a medical opinion for this litigation and that he sought
out Dr. Stoddard to provide that opinion. (See Doc.
60-4.) Then, at their meeting, Dr. Stoddard merely took
Randy's history, performed a physical exam, made an
assessment of PTSD, and directed Randy to return if his
symptoms worsened or persisted. (See Doc. 60-3.)
There is no evidence that Dr. Stoddard previously considered
or determined the cause of Randy's injuries during the
course of treatment.
Dr. Stoddard's Rule 26(a)(2)(C) disclosure is
insufficient for a retained expert and the Childresses have
not shown that their failure to provide an adequate
disclosure was either substantially justified or harmless,
exclusion is appropriate. Fed.R.Civ.P. 37(c)(1). Accordingly,
IT IS ORDERED that Dr. Stoddard's expert opinion