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Duffy v. Lawrence Memorial Hospital

United States District Court, D. Kansas

October 31, 2017

MEGEN DUFFY, Relator/Plaintiff,


          Teresa J. James U.S. Magistrate Judge

         This matter is before the Court on Defendant/Counterclaimant Lawrence Memorial Hospital's Motion to Strike Plaintiff's Non-Retained Experts (ECF No. 236). Pursuant to Federal Rule of Civil Procedure 37(c), Defendant asks the Court to enter an order striking Plaintiff's non-retained expert witness designations of Centers for Medicare and Medicaid Services (CMS) employees James Poyer, Dr. Reena Duseja, and Dr. Pierre Young. Defendant contends Plaintiff's designations for these three witnesses fail to satisfy Federal Rule of Civil Procedure 26(a)(2)(C), and as a result the Court should prohibit each from offering expert testimony. Plaintiff opposes the motion. As set forth below, the Court denies Defendant's motion.

         I. Relevant Background

         On September 7, 2017, Plaintiff included in her expert witness designations the names of three employees of CMS. Plaintiff actually believes these individuals will be lay witnesses, as she intends to elicit testimony from them about the policies and practices of CMS during the time periods described in the Second Amended Complaint. However, Plaintiff is prepared for the possibility that the court may determine one or more of the witnesses' opinions is “based on scientific, technical, or other specialized knowledge” which would fall within the scope of expert witness testimony.[1] Accordingly, Plaintiff asked CMS to identify the individuals who will testify so that, “out of an abundance of caution, ”[2] she could timely include the names in her expert disclosures. CMS provided the names on September 6, 2017.

         Defendant took issue with the sufficiency of the information Plaintiff provided regarding the witnesses and on September 12, 2017, defense counsel wrote a golden rule letter informing Plaintiff that Defendant is substantially prejudiced by the allegedly inadequacy and insisting that Plaintiff immediately supplement its disclosures to “identify the specific facts and opinions about which these witnesses are expected to testify.”[3] The parties' counsel spoke by telephone on September 15, 2017, and Plaintiff's counsel explained that CMS had recently designated the witnesses but counsel had not yet spoken with them. Since then, Plaintiff's counsel has continued to communicate with CMS to try to arrange a phone conference to better ascertain the nature of each witness's knowledge and opinions related to this case. Neither party reports further communication. On September 21, 2017, Defendant timely filed the instant motion.

         II. Legal Standard

         Defendant alleges Plaintiff's designation fails to meet the technical requirements of Fed.R.Civ.P. 26(a)(2)(C), which governs the information a party must provide regarding non-retained witnesses. The rule provides as follows:

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.[4]

         As Defendant recognizes, case law provides little to no guidance on what constitutes a sufficient summary under Fed.R.Civ.P. 26(a)(2)(C) that would obviate any danger of unfair surprise regarding the potential factual and/or opinion testimony of non-retained witnesses.[5] The advisory committee notes written at the time Rule 26 was amended to include this provision state as follows:

Rule 26(a)(2)(C) is added to mandate summary disclosures of the opinions to be offered by expert witnesses who are not required to provide reports under Rule 26(a)(2)(B) and of the facts supporting those opinions. This disclosure is considerably less extensive than the report required by Rule 26(a)(2)(B). Courts must take care against requiring undue detail, keeping in mind that these witnesses have not been specially retained and may not be as responsive to counsel as those who have.
This amendment resolves a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement. An (a)(2)(B) report is required only from an expert described in (a)(2)(B).
A witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or 705. Frequent examples include physicians or other health care professionals and employees of a party who do not regularly provide expert testimony. Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure required under Rule 26(a)(2)(C). The ...

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