United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion to Strike Plaintiff's
Expert Witness List [Doc. No. 37], which raises the issue of
whether Plaintiff should be precluded from presenting opinion
testimony of his expert witnesses (two treating physicians)
because he failed to comply with the requirement of
Fed.R.Civ.P. 26(a)(2)(C) to provide a summary of the opinions
to which they will testify. Plaintiff has responded with an
offer to provide a narrative summary of the physicians'
testimony, in place of the statement in his Expert Witness
List [Doc. No. 35] that their opinions are contained in his
medical records. In its reply brief, Defendant raises a new
issue of whether any medical testimony will be needed.
Defendant contends the question of whether Plaintiff had a
“disability” as defined by the ADA Amendments Act
of 2008 (ADAAA), 42 U.S.C. § 12102, may be resolved
through a summary judgment ruling or a stipulation of the
parties, and therefore, any testimony by Plaintiff's
treating physicians regarding his medical condition “is
unnecessary” and would be “superfluous,
cumulative, confusing, and inflammatory.” See
Def.'s Reply Br. [Doc. No. 42] at 1, 2.
previously requested permission to file a surreply brief to
address Defendant's relevance objection, but the Court
denied the request because it found the existing briefs to be
adequate. See Order 8/23/16 [Doc. No. 45].
Unsatisfied with this ruling, Plaintiff has filed an
Application to Supplement the Request to Designate Treating
Physician Testimony [Doc. No. 58], which seeks permission
“to supplement the briefing on the treating physician
designations . . . [to show] that Defendant has not
stipulated to Plaintiff's disability or the factual
conditions providing the foundation for an ADAAA disability
determination.” See Pl.'s Appl. at 3.
Plaintiff's Application is also fully
issue raised by Defendant's Motion is Plaintiff's
duty to disclose the expert opinions to which his treating
physicians are expected to testify. Defendant acknowledges in
a footnote to its opening brief for the Motion that the
requirement of Rule 26(a)(2)(C) applies only to the extent
Plaintiff's “treating physicians' testimony
will exceed the scope of facts and opinions related to the
diagnosis and treatment of Plaintiff of which they have
personal knowledge.” See Def.'s Mot.
Strike [Doc. No. 37] at 1, n.1. A short time after the Motion
was filed, Plaintiff made his Rule 26(a)(3) disclosures of
fact witnesses. See Pl.'s Witness & Exhibit
List [Doc. No. 41]. In this disclosure, Plaintiff included
the same treating physicians who were listed as expert
witnesses, and provided a narrative summary of their proposed
testimony. From this description, it appears Plaintiff
expects his treating physicians to testify regarding his
medical diagnosis and cancer treatment, including prescribed
medications, and their effects on his physical and emotional
unclear from the parties' briefs whether Plaintiff
proposes to elicit any expert opinion testimony from his
physicians within the scope of Rule 702, which is the type of
expert testimony subject to disclosure under Rule 26(a)(2).
From the description in Plaintiff's Rule 26(a)(3)
disclosure, it appears that his primary care and oncology
doctors will testify from their personal and professional
knowledge about Plaintiff and his health conditions. Their
testimony will necessarily address limits to Plaintiff's
“major life activities” for purposes of the ADAAA
and thus the existence of a “disability.”
See 42 U.S.C. § 12102(1)(A), (2). Assuming
their testimony goes further and includes medical opinions
regarding some contested issue - thus triggering the
disclosure requirement of Rule 26(a)(2)(C) - the Court finds
that Plaintiff's failure to comply with this requirement
is insufficient to justify the sanction of excluding expert
not cited by Defendant, a decision to exclude evidence as a
sanction for a party's failure to disclose information
required by Rule 26(a), is governed by Rule 37(c). Before
imposing the sanction, a district court must consider whether
“the failure was substantially justified or is
harmless.” See Fed. R. Civ. P. 37(c)(1).
Further, a district court making this determination
“should consider the following factors: (1) the
prejudice or surprise to the party against whom the testimony
is offered; (2) the ability of the party to cure the
prejudice; (3) the extent to which introducing such testimony
would disrupt the trial; and (4) the moving party's bad
faith or willfulness.” Jacobsen v. Deseret Book
Co., 287 F.3d 936, 953 (10th Cir. 2002) (internal
quotation omitted); see ClearOne Commc'ns, Inc. v.
Biamp Sys., 653 F.3d 1163, 1176-78 (10th Cir. 2011).
Defendant fails to address these factors or to justify the
exclusion of expert testimony by Plaintiffs treating
physicians under the circumstances.
Defendant's relevance objection, the Court finds this
issue is premature. The Court cannot make a reasoned decision
at this point regarding the admissibility under Rule 401 of
the treating physicians' testimony at trial. Further, a
balancing of interests under Rule 403 would require an
objection to specific testimony and an assessment of its
probative value in the context of other trial issues.
THEREFORE ORDERED that Defendant's Motion to Strike
Plaintiffs Expert Witness List [Doc. No. 37] is DENIED.
FURTHER ORDERED that Plaintiff s Application to Supplement
the Request to Designate Treating Physician Testimony [Doc.
No. 58] is DENIED as moot.
 Defendant's response brief echoes
the Court's ruling that the existing briefs are adequate;
alternatively, Defendant requests an opportunity to respond
to any supplemental brief filed by Plaintiff. Plaintiff's
reply brief contains additional ...