J.T. Johnson, Jr. v. Jenna Friesen, 79 F.4th 939

Background:

J.T. Johnson sued Jenna Friesen for injuries from a 2015 car accident; Friesen admitted negligence.
Johnson alleged mostly subjective injuries (chronic low‑back pain requiring a pain stimulator, neck pain, PTSD, etc.).
Johnson disclosed 13 treating providers as potential expert witnesses with minimal Rule 26(a)(2) disclosures; one letter from neurosurgeon Dr. Harold Hess opined causation “within a reasonable degree of medical certainty.”
The district court found the initial disclosures "bare‑bones," allowed amendments, but concluded Hess’s causation opinion was formed after counsel’s request and review of records, making him a prospective expert required to file a Rule 26(a)(2)(B) report.
The court excluded Dr. Hess’s testimony (and other treating‑physician testimony for inadequate disclosures) under Rule 37(c)(1); because Nebraska law requires expert proof of causation for subjective injuries and Hess was the only causation witness, the court granted summary judgment for Friesen.
The Eighth Circuit affirmed, holding Hess was a retained-type expert who failed to provide the required written report and whose exclusion warranted summary judgment for the defendant.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a treating physician who later forms a causation opinion must provide a written report under Rule 26(a)(2)(B) rather than a summary under 26(a)(2)(C)	Hess was a treating physician and Johnson’s 26(a)(2)(C) disclosure (plus Hess’s letter) sufficed; no B report required	Hess formed his causation opinion after treatment in response to counsel and is therefore a retained/specially employed expert subject to 26(a)(2)(B)	Treating physician who forms causation opinion outside the course of treatment is a retained expert and must provide a 26(a)(2)(B) report; affirmed
Whether exclusion of Dr. Hess’s testimony for failure to file a 26(a)(2)(B) report was proper	Exclusion was improper because amended disclosures and Hess’s letter disclosed his opinion	Failure to provide the required written report justified exclusion under Rule 37(c)(1); the letter was insufficient	Exclusion proper: Hess’s opinion was formed post‑treatment, no compliant report was filed, letter insufficient; exclusion affirmed
Whether summary judgment for defendant was proper given Nebraska law on causation	Summary judgment was erroneous because disputes of fact remain regarding causation	Nebraska requires expert medical testimony to prove causation for subjective injuries; absent Hess’s testimony plaintiff cannot establish causation	Summary judgment proper: injuries are subjective under Nebraska law and, with Hess excluded, Johnson lacked necessary expert causation testimony; affirmed

Key Cases Cited

Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698 (8th Cir. 2018) (Rule 37(c)(1) exclusion for insufficient expert disclosures)
Eiting v. Godding, 214 N.W.2d 241 (Neb. 1974) (subjective symptoms require medical testimony to prove causation)
Gruttemeyer v. Transit Auth., 31 F.4th 638 (8th Cir. 2022) (treating physician who forms causation opinion outside treatment may be treated as retained expert)
Brooks v. Union Pac. R.R. Co., 620 F.3d 896 (8th Cir. 2010) (treating physician opinions are subject to the same reliability standards as hired experts)
Meyers v. Nat'l R.R. Passenger Corp., 619 F.3d 729 (7th Cir. 2010) (treating physicians must provide a 26(a)(2)(B) report when causation opinion is not formed during treatment)
Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011) (same principle on treating‑physician reports)
Bradshaw v. FFE Transp. Servs., Inc., 715 F.3d 1104 (8th Cir. 2013) (federal law governs admissibility of expert testimony in diversity cases)
Eno v. Watkins, 429 N.W.2d 371 (Neb. 1988) (severe physical pain is a subjective injury)