United States District Court, D. Montana, Missoula Division
BRENDAN E. ADAMS, an individual, Plaintiff and Counter Defendant,
HOWARD C. ROBERTS, an individual, Defendant and Counter Claimant.
L. Christensen, Chief Judge United States
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.
Complaint, Adams brings claims for assault,  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.
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,
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); (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.
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.
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).
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.
Rule 701 provides:
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. ...