United States District Court, D. Kansas
ROBERT L. CRITES, Plaintiff,
THE CITY OF HAYSVILLE, KANSAS, Defendant.
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE
matter came before the court on June 5, 2018, for a hearing
on pending motions and for a final pretrial conference. The
court made several oral rulings at the hearing, which are
summarized below. This order additionally sets out procedures
for trial and other matters discussed with the parties at the
June 5 hearing.
Scope of Plaintiff's ADA
claim. Plaintiff's counsel confirmed
that the ADA claim is based on the City's decision to
refer Plaintiff for a fitness-for-duty (“FFD”)
evaluation with Dr. Nystrom. Plaintiff contends the
City's decision to require that evaluation violated the
ADA because it was not job-related and consistent with
business necessity. Plaintiff is not asserting an independent
violation of the ADA arising from the City's reliance on
Dr. Nystrom's conclusion. See Doc. 98 at 1.
respect to the City's asserted justification for
requiring the FFD evaluation, Plaintiff concedes the City has
not waived its assertion that Plaintiff was unable to perform
the essential functions of his job. Cf. Doc. 98 at
Damages. Plaintiff's claim for
liquidated damages under the FMLA (Doc. 59 at 33) is no
longer an issue in the case in view of the court's
dismissal of the FMLA claim.
court reserves its ruling concerning presentation of back pay
and front pay to the jury until after completion of briefing
on the motions in limine. Cf. Fed. R. Civ. P. 39(c)
(“in an action not triable of right by a jury, the
court, on motion or on its own … may try any issue
with an advisory jury”).
Admission of Exhibits at Trial. If
the parties agree upon the admissibility of an exhibit in
advance, the exhibit may be used at trial prior to formal
admittance. Any such exhibits may then be formally admitted,
as a group, at the conclusion of the testimony of a witness
who discussed the exhibits. Any exhibit as to which no
witness testified will not be admitted.
Witness Disclosures and Objections.
Plaintiff will provide the City with his final list of
witnesses by the end of business June 6, 2018. Any objection
thereto by the City is due June 7, 2018.
The City's Motion to Exclude Expert Testimony
Dr. Crosby. The court grants the City's motion
insofar as it seeks to exclude opinion testimony from Dr.
Crosby that goes beyond Crosby's treatment of Plaintiff.
Civ. P. 26(a)(2)(B) requires that an expert disclosure be
accompanied by a written report if the witness is “one
retained or specially employed to provide expert testimony in
the case.” “In the District of Kansas, …
it has long been recognized that treating physicians are not
subject to this requirement to the extent they offer opinions
on matters within the scope of their treatment of an
individual.” Richard v. Hinshaw, No.
09-1278-MLB, 2013 WL 6709674, at *1 (D. Kan. Dec. 18, 2013).
“Opinions within the scope of [treatment] may extend to
causation of an injury, diagnosis, prognosis, and other
opinions arising out of and related to the treatment.”
Id. “When a physician's proposed testimony
extends beyond facts made known during treatment and beyond
opinions relating to the course of care and treatment, the
witness may be subject to the requirement of a written
report. For example, a treating physician who is asked to
review to medical records of another provider in order to
render an opinion about the propriety of that provider's
care would likely be considered specially retained for
trial.” Id. (citing Wreath v. United
States, 161 F.R.D. 448, 450 (D. Kan. 1995)).
Crosby's opinions about Dr. Nystrom's conclusions and
methods did not arise out of or relate to Crosby's care
and treatment of Plaintiff. The court finds such opinions
trigger the requirement for a written report under Rule
26(a)(2)(B). No. written report was provided. Under Rule
37(c)(1), if a party fails to provide information required by
Rule 26(a), the party is not allowed to use that information
at trial “unless the failure was substantially
justified or is harmless.” See Paliwoda v.
Showman, No. 12-2740-KGS, 2013 WL 5938027, *7 (D. Kan.
Nov. 6, 2013) (burden is on party failing to make disclosure
to show it was harmless or substantially justified). In
determining whether a failure is harmless, the court
considers: (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).
court is not persuaded the lack of a written report from Dr.
Crosby was substantially justified or harmless. A written
report must include a complete statement of all opinions the
witness will express and the reasons for them, as well as all
facts and data considered by the witness. Haysville was not
provided any of that information, and it went into Dr.
Crosby's deposition without notice that his opinions
would go beyond his treatment of Plaintiff. Haysville was
entitled to such notice before it deposed the witness, both
to prepare for its questioning of him and to make decisions
about its own witnesses. Given the late disclosure, there is
no opportunity to re-open discovery or otherwise cure the
lack of notice. Although there is no suggestion of bad faith
by Plaintiff in failing to provide a report, the motion to
exclude opinions by Dr. Crosby beyond the scope of his
treatment of Plaintiff will be granted.
Leenay. The court will reserve ruling with respect to Dr.
Leenay's testimony until after briefing is ...