Johnston v. American Education Services
14-01118
Bankr. W.D. Okla.Oct 22, 2015Background
- Debtors Joshua A. and Diana M. Johnston commenced an adversary proceeding seeking discharge of education loans under 11 U.S.C. § 523(a)(8)(A)(i); trial was scheduled for November 2, 2015.
- Plaintiffs listed ten medical professionals (witnesses 9–18) and six documentary exhibits on their witness/exhibit list but did not serve Rule 26(a)(2) expert disclosures.
- Defendants and intervenor moved in limine to exclude the medical witnesses’ testimony and certain documentary evidence as undisclosed expert evidence.
- Plaintiffs argued the treating physicians would testify as lay witnesses under Fed. R. Evid. 701 (relying on Davoll and Weese) rather than as experts.
- The court concluded post-2000 Rule 701 amendments narrow permissible lay opinion testimony and that treating physicians’ opinions as to diagnosis, causation, prognosis, disability, or permanency generally constitute expert testimony requiring Rule 26 disclosure.
- The court found plaintiffs made no Rule 26(a)(2) disclosures and declined to continue the trial; it barred the medical witnesses from offering expert-style opinions but allowed testimony limited to personal observations and treatment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether treating physicians may testify as lay witnesses without Rule 26 disclosures | Treating physicians’ opinions are lay testimony under Rule 701 (citing Davoll, Weese) | Such opinions are expert testimony when based on scientific, technical, or specialized knowledge and require Rule 26 disclosures | Court: Post-2000 Rule 701 limits lay testimony; treating physicians not disclosed as experts cannot give opinions on diagnosis, causation, prognosis, disability, or permanency |
| Effect of failing to provide Rule 26(a)(2) disclosures for treating-physician opinions | Believed no disclosures required for treating physicians viewed as fact witnesses | Non-disclosure precludes offering expert opinions at trial; unfair surprise/prejudice | Court: Exclusion mandatory under Rule 37 unless substantially justified or harmless; here exclusion warranted given no justification and imminent trial |
| Admissibility of medical records containing expert opinions | Medical records should be admissible as business/medical records | Portions containing expert opinions are unduly prejudicial and undisclosed expert testimony | Court: Will determine admissibility at trial; any portions containing opinions as to causation, prognosis, disability/permanency are inadmissible |
| Whether to continue trial to allow disclosures | Plaintiffs implicitly request leeway based on prior precedents | Defendants oppose further continuance and prejudice argument | Court: Declined to continue trial; prior continuances counsel against further delay; exclusion enforced without prejudice to limited testimony |
Key Cases Cited
- Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999) (treating physician testimony previously allowed as lay opinion in some contexts)
- Weese v. Schukman, 98 F.3d 542 (10th Cir. 1996) (treating physician testified on standard of care and causation as lay witness)
- Musser v. Gentiva Health Servs., 356 F.3d 751 (7th Cir. 2004) (testimony based on scientific, technical, or specialized knowledge is expert testimony regardless when formed)
- James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207 (10th Cir. 2011) (Rule 701 does not permit lay opinions requiring expert skill or knowledge)
- Jacobsen v. Deseret Book Co., 287 F.3d 936 (10th Cir. 2002) (factors for court to consider in excluding untimely disclosed expert testimony)
- Castro‑Medina v. Proctor & Gamble Com. Co., 565 F. Supp. 2d 343 (D.P.R. 2008) (treating physicians’ testimony on diagnosis/prognosis often constitutes expert testimony)