Morrison v. Wal-Mart Stores, Inc., 321 F.R.D. 336

Plaintiff (Morrison) alleges she was injured tripping on a Walmart rug and seeks to offer testimony from treating surgeon Dr. Mulconrey about her surgery and about surgeries performed by other physicians.
Discovery is ongoing; parties are arranging medical depositions and expert disclosures.
Walmart moved to compel a written expert report under Fed. R. Civ. P. 26(a)(2)(B), arguing Dr. Mulconrey will give expert opinions beyond his own treatment.
Morrison responded that written reports are required only for retained experts, and that Dr. Mulconrey is a treating physician, not a retained expert.
The court analyzed the 2010 amendment to Rule 26(a)(2), which added specific disclosure requirements for non-retained experts in subsection (C).
The court denied Walmart’s motion but ordered Morrison to provide Rule 26(a)(2)(C) disclosures (subject matter and a summary of facts and opinions).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a treating physician who will opine beyond his own treatment must provide a Rule 26(a)(2)(B) written report	Dr. Mulconrey is not a retained expert; only (a)(2)(C) disclosures required	Treating physician giving opinions beyond treatment must provide a (a)(2)(B) report	Court held Rule 26(a)(2)(C) governs non-retained treating physicians; no (a)(2)(B) report required
Effect of 2010 amendment to Rule 26(a)(2) on prior cases (e.g., Meyers)	The amended Rule controls and limits (a)(2)(B) report requirement to retained experts	Reliance on pre-amendment cases compelling reports for treating physicians	Court concluded amendment resolved prior tension; Meyers/Banister addressed pre-amendment Rule and are inapplicable to current Rule
Required disclosures for non-retained expert witnesses	Provide identity and (a)(2)(C) disclosures: subject matter and summary of facts/opinions	Court should compel full (a)(2)(B) report	Held: Plaintiff must provide (a)(2)(C) disclosures but not a full (a)(2)(B) report
Whether the court should order a written report anyway	N/A (Plaintiff opposed)	Walmart requested court-ordered report	Denied — no written report required under current Rule for non-retained treating physician

Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729 (7th Cir. 2010) (treating physicians previously deemed to require expert reports under pre-2010 Rule)
Banister v. Burton, 636 F.3d 828 (7th Cir. 2011) (reaffirming Meyers’ pre-amendment interpretation)
Coleman v. Am. Family Mut. Ins. Co., 274 F.R.D. 641 (N.D. Ind. 2011) (applying amended Rule to require only (a)(2)(C) disclosures for treating physicians)