Timothy Vanderberg v. Petco Animal Supplies Stores, 906 F.3d 698

Background

On June 7, 2015 Vanderberg fell while unloading at a Petco; he later treated for knee and bilateral shoulder injuries and underwent surgeries by Dr. Timothy Petsche.
Vanderberg sued Petco for negligence and premises liability; the court-approved scheduling order required expert disclosures by specified deadlines in 2016–2017 and close of discovery by Feb. 17, 2017.
Vanderberg produced voluminous medical records (including operative notes and a letter from Dr. Petsche) but did not file Rule 26(a)(2) expert disclosures or summaries for treating physicians by the deadlines.
After discovery closed, Petco moved for summary judgment arguing Vanderberg lacked expert causation evidence; Vanderberg belatedly produced two IME reports and relied on Dr. Petsche’s notes/letter to oppose summary judgment.
The district court excluded the undisclosed expert opinions under Fed. R. Civ. P. 37(c)(1) as neither substantially justified nor harmless, then granted summary judgment for Petco because Iowa law requires expert proof of medical causation when multiple causes exist.
The Eighth Circuit affirmed exclusion and summary judgment, rejecting Vanderberg’s arguments about sufficiency of medical records, the meet-and-confer requirement, and the need for a lesser sanction absent a motion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether exclusion under Rule 37(c)(1) of undisclosed treating-physician expert opinions was an abuse of discretion	Vanderberg: production of medical records and listing treating doctors gave adequate notice; failure was harmless and not prejudicial	Petco: no Rule 26(a)(2) disclosure or summary; nondisclosure prejudiced its ability to depose and prepare rebuttal; exclusion is the automatic sanction absent harmlessness or substantial justification	Affirmed exclusion; district court did not abuse discretion—failure was neither substantially justified nor harmless
Whether Petco needed to "meet and confer" before moving to exclude under Rule 37(c)(1)	Vanderberg: Petco’s failure to meet-and-confer barred sanctions	Petco: Rule 37(a)(1) meet-and-confer applies to motions to compel discovery, not to enforcement of automatic sanctions under Rule 37(c)(1)	Meet-and-confer not required for Rule 37(c)(1) exclusion; district court’s denial of fees was discretionary but not appealed
Whether, after exclusion, summary judgment was improper because other medical evidence created a triable issue on causation	Vanderberg: statements in medical records and other evidence were sufficient under summary judgment standard	Petco: Iowa law requires expert opinion to prove causation when multiple possible causes exist; excluded statements were the only expert causation evidence	Affirmed summary judgment—without admissible expert causation evidence, Vanderberg could not create a genuine issue of material fact under Iowa law
Whether court was required to consider lesser sanctions sua sponte or whether plaintiff had to move for one	Vanderberg: district court should have considered lesser sanctions because failure was harmless or nonwillful and exclusion amounted to dismissal	Petco: Rule 37(c)(1) makes exclusion the self-executing default; alternative sanctions are available but typically on motion	Court: Plaintiff did not seek a lesser sanction; Rule 37(c)(1) exclusion is the default and district court did not abuse discretion in applying it

Key Cases Cited

Brooks v. Union Pac. R.R. Co., 620 F.3d 896 (8th Cir.) (affirming exclusion of undisclosed treating-physician causation opinion)
Wegener v. Johnson, 527 F.3d 687 (8th Cir.) (timeliness and Wegener factors for discovery-sanction analysis)
Anderson v. Bristol, Inc., 936 F. Supp. 2d 1039 (S.D. Iowa) (Iowa law requires expert testimony for medical causation when multiple causes exist)
Heartland Bank v. Heartland Home Fin., Inc., 335 F.3d 810 (8th Cir.) (district court must consider lesser sanctions when exclusion is tantamount to dismissal)
Cripe v. Henkel Corp., 858 F.3d 1110 (7th Cir.) (standard of review and harmless/substantial justification analysis for Rule 37 sanctions)