Selby v. Kmart Corporation, 1:17-cv-00042

Background

Selby (plaintiff) sued Kmart after tripping and falling in Kmart’s parking lot; case removed to federal court.
Court’s scheduling order required plaintiff to disclose expert identities and to file Rule 26(a)(2)(B) reports for retained experts by November 1, 2017.
On November 1, Selby disclosed: Dr. Barret H. Lessenberry (treating physician), engineer John Schorering (identified but not yet retained), and seven medical provider entities without naming individual witnesses.
Selby stated Dr. Lessenberry would testify about treatment and permanency; Schorering would testify about an unsafe curb and promised a written report later.
Kmart moved to strike the disclosures and exclude the experts for failure to: (1) identify individual witnesses for the seven entities; and (2) produce required written expert reports for Lessenberry and Schorering.
The magistrate judge found partial noncompliance but no clear bad faith, granted Kmart’s motion to strike the disclosures, and allowed Selby to seek relief by moving under Rule 16(b)(4) to extend the disclosure deadline.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff’s disclosure of seven medical entities satisfied Rule 26(a)(2)(A)	Identification of entities was sufficient and timely	Entities must be represented by named individuals; disclosure of entities alone is noncompliant	Not compliant — plaintiff failed to timely identify individual witnesses for those entities; disclosures struck
Whether Dr. Lessenberry (treating physician) required a Rule 26(a)(2)(B) report for opinions on causation and permanency	Lessenberry is a treating physician; Rule 26(a)(2)(C) suffices for treating physician testimony	Lessenberry’s causation/permanency opinions appear formed for litigation and thus require a written Rule 26(a)(2)(B) report	Held that opinions beyond diagnosis/treatment (causation/permanency) require a subsection (B) report; none timely filed, so noncompliant
Whether Schorering (engineer) must provide a written Rule 26(a)(2)(B) report despite not yet formally retained	Subsection (C) applies because he has not been retained; plaintiff provided subject matter summary	Courts examine substance/scope; after-the-fact causation opinions fall under subsection (B) even if not formally retained	Held that Schorering’s after-the-fact causation opinions fall under (B); no timely report filed, so noncompliant
Whether Rule 37(c)(1) sanctions (exclusion) should be imposed or whether failure was substantially justified/harmless	Failure to produce full reports was misunderstanding of requirements and potentially curable; not in bad faith	Prejudice to Kmart from lack of reports and inability to secure rebuttal experts	Court found prejudice and automatic exclusion principle, but mitigation possible: struck disclosures without prejudice and allowed plaintiff to move under Rule 16(b)(4) for extension to cure failures

Key Cases Cited

Fielden v. CSX Transp., 482 F.3d 866 (6th Cir.) (after-the-fact expert opinions may trigger Rule 26(a)(2)(B) report requirement)
Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 728 (7th Cir.) (treating physician must file an expert report when offering opinions formed outside course of treatment)
Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., P.C., 388 F.3d 976 (6th Cir.) (Rule 37(c)(1) exclusion is mandatory absent substantial justification or harmlessness)
Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776 (6th Cir.) (opposing counsel must have sufficient knowledge of who will testify and what they will say for nondisclosure to be harmless)
Avendt v. Covidien Inc., 314 F.R.D. 547 (E.D. Mich.) (distinguishes treating-physician testimony that is within treatment from expert opinions that require a full Rule 26(a)(2)(B) report)