United States District Court, E.D. California
ORDER AND RECOMMENDATION
EDMUND F. BRENNAN, Magistrate Judge.
This case was before the court on June 4, 2014, for hearing defendant's motion for exclusionary sanctions pursuant to Federal Rule of Civil Procedure ("Rule") 37(c)(1), ECF No. 51. Additionally, plaintiff moved to strike defendant's reply brief and sought monetary sanctions. ECF No. 60. Attorney Russell Robinson appeared on behalf of plaintiff; attorney Lynn Ernce appeared on behalf of the defendants. As stated on the record, defendant's Rule 37 motion, and plaintiff's related motions to strike and for sanctions are denied. However, as discussed at the hearing, good cause exists to warrant modification of the court's scheduling order to allow defendant an opportunity to depose three of plaintiff's non-retained expert witnesses.
Defendants argue in their Rule 37 motion that certain treating physicians who have been designated by plaintiff as non-retained expert witnesses should not be permitted to testify at trial because plaintiff failed to provide the disclosures required by Rule 26(a)(2)(B). Rule 26 requires a party to disclose to all other parties the identity of any expert witness that may be used at trial. Fed.R.Civ.P. 26(a)(2)(A). For non-retained expert witnesses, this disclosure must include the subject matter, a summary of the facts, and the opinions to which the witness intends to testify. Fed.R.Civ.P. 26(a)(2)(C). Here, plaintiff's disclosure and amended disclosures, collectively, informed defendants that these doctors are percipient non-retained expert witness who treated plaintiff's injuries. The disclosures identify the area of practice/expertise of the doctors and state that they will testify as to "issues of causation for the injuries, " "that the treatment received was both reasonable and necessary, " "the need for surgery, " "costs associated with the various procedures, " "future problems, " and "related issues." ECF No. 53 at 2. The disclosure note that two of the doctors will testify as to the treatment for pain "associated with the various procedures and injuries and identifies those two doctors. Id.
As discussed in more detail at the hearing, defendant's argument that these disclosures are mere boilerplate and were inadequate to enable counsel to determine which experts to depose lacks merit. The disclosures are not mere boilerplate and, although not in formal technical compliance with the rule, should have been enough to determine whether to proceed with a deposition as to each doctor. Although plaintiff's Rule 26(a)(2)(C) disclosures did not include a full factual summary and a statement of the ultimate opinions to be expressed, the disclosures provided enough information as to the subject matter of the anticipated testimony and the expertise of each treating doctor to prevent unfair surprise at trial. While the disclosures did not formally state the ultimate opinion anticipated from each of these treating physicians, one would not expect the doctors to testify that their treatment was not reasonably necessary. Although there may be some technical non-compliance with Rule 26(a)(2)(C), evidentiary sanctions sought here are unwarranted.
First, the court is mindful of the comments by Advisory Committees regarding the Rule 26(a)(2)(C) that non-retained experts are not being paid and are not likely to be as available as retained medical experts who are paid hourly rates for their time. Fed.R.Civ.P. 26(a)(2)(C) Advisory Committee's Notes (2010). The comment notes that these non-retained experts are not required to submit reports and that the required disclosure under (a)(2)(C) "is considerably less extensive than the report required by Rule 26(a)(2)(B)." Id. Thus, the comment cautions, "[c]ourts 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." Id. In particular, the comment cites physicians as "frequent examples." Id.
Second, to the extent plaintiff's disclosures have not technically complied with the "factual summary" and "opinion" requirements of Rule 26(a)(2)(C), the law of this circuit requires district courts to consider the availability of alternative remedies than precluding evidence or testimony when the court "conducts the harmless inquiry required by Rule 37(c)(1). See R & R Sails, Inc. v. Insurance Co. of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir. 2012) (holding that a district court is required "to consider the availability of lesser sanctions" than evidentiary or termination sanctions and "reaffirm[ing] the existence of that requirement when a district court conducts the harmlessness inquiring required under Rule 37(c)(1)."). Here, any harm caused by plaintiff's failure to fully comply with Rule 26(a)(2)'s disclosure requirements is readily capable of mitigation. The trial date has already been continued for unrelated reasons and there is adequate time for the defendant to depose the doctors in questions. Additionally, when pressed for more details as to the anticipated testimony of the witnesses, plaintiff's counsel provided further elaboration which enabled defense counsel to decide at the hearing that she wanted to take their depositions. Furthermore, plaintiff withdrew the designation as to some of the witnesses, leaving only three in question.
At the hearing, the parties agreed that modifying the scheduling order to allow defendant an opportunity to depose plaintiff's remaining non-retained experts would remedy any harm caused by the technical noncompliance with Rule 26(a)(2)(C).
For these reasons, defendant's motion for Rule 37(c)(1) sanctions is denied and it is recommended that the court's amended scheduling order be modified to allow plaintiff the opportunity to depose the three non-retained expert witnesses plaintiff intends to call at trial.
Accordingly, it is hereby ORDERED that:
1. Defendant's motion for exclusionary sanctions pursuant to Federal Rule of Civil Procedure ("Rule") 37(c)(1), ECF No. 51, is denied.
2. Plaintiff's motion to strike, ECF No. 60, is denied.
3. Plaintiff's motion for sanctions, ECF No. 60, is denied.
Further, it is hereby RECOMMENDED that:
a. The last day to hear dispositive motions, currently set for August 7, 2014, be ...