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Adams v. Roberts

United States District Court, D. Montana, Missoula Division

December 10, 2019

BRENDAN E. ADAMS, an individual, Plaintiff and Counter Defendant,
HOWARD C. ROBERTS, an individual, Defendant and Counter Claimant.


          Dana L. Christensen, Chief Judge United States

         Before the Court is Defendant Howard C. Roberts' Motion in limine Regarding Medical Records and Testimony. (Doc. 18.) Roberts asks the Court to exclude all medical records and medical provider testimony as to the cause of Plaintiff Brendan Adams' injuries because Adams failed to provide any expert reports. (Id. at 1.) For the reasons explained, the Court grants the motion. Because the parties are familiar with the facts, they will not be restated.


         In his Complaint, Adams brings claims for assault, [1] trespass, and intentional infliction of emotional distress. (Doc. 1 at 5-6.) Montana law requires that a plaintiff who seeks damages for personal injury (where the injury is one that is subjective or not otherwise plainly apparent) must introduce expert testimony to establish the cause and permanence of the injury. Cain v. Stevenson, 706 P.2d 128, 131 (Mont. 1985). Federal Rule of Civil Procedure 26(a)(2) requires litigants to disclose certain expert reports if they intend to use an expert at trial.

         Rule 26 applies to two categories of experts: those who are specifically retained for trial, and those who are not specifically retained but will provide testimony that falls within Federal Rules of Evidence 702, 703, or 705. See Fed. R. Civ. P. 26(a)(2)(B)-(C). Specifically-retained experts must comply with Rule 26(a)(2)(B)'s more rigorous disclosure requirements, [2] whereas a witness not specifically retained for trial, such as a treating physician, is generally exempt from the specificity required of retained experts so long as their testimony concerns opinions formed during the course of treatment, i.e., those pertaining to "care, treatment and prognosis." See Rule 26(a)(2)(C); Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011)[3]; (Doc. 14 at 6). Contrary to Adams' contention, these witnesses are not entirely exempt from a reporting requirement. The 2010 Amendment to Rule 26, added subsection (a)(2)(C) which provides that these witnesses must produce a report that states "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).

         However, non-retained witnesses may become subject to 26(a)(2)(B)'s strictures where their testimony falls outside the scope of treatment. Goodman, 644 F.3d at 826. This often occurs when a treating physician consults outside records in order to testify as to whether a certain event caused certain injuries. See id.

         Where a party fails to disclose a necessary report, that party may not use the non-disclosed information at trial "unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1). This rule is mandatory, and is designed to "give[] teeth" to Rule 26's disclosure requirements. Joseph v. Linehaul Logistics Inc., 2012 WL 3779202 at *1 (D. Mont. Aug. 31, 2012).

         Adams argues that no report was required because treating witnesses are fact, not expert, witnesses. (Doc. 20 at 2.) Adams is partially correct insomuch as a treating physician may be both a fact and expert witness. See, e.g, United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997). Whether a certain witness is an expert (and therefore whether a disclosure is required) centers on the particular testimony offered and whether it falls under Federal Rule of Evidence 701 or 702. Fed.R.Evid. 701, Advisory Committee's Note, 2000 Amendments. Testimony is considered "expert" when it is based on "scientific, technical or other specialized knowledge." Id.

         Federal Rule 701 provides:

         If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701. The Committee Comments to the 2000 Amendment clarify that Rule 701 is not to be used as a way to "channel [] testimony that is actually expert testimony" under Rule 702 to avoid the disclosure requirement's of Rule 26. Rule 701 is generally limited to testimony based on sensory perceptions, common knowledge, or things a lay person is qualified to observe. ...

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