Case Information
*1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY AT COVINGTON A’i ~ 9 ~ ~ : ~ ~ ~ ~ ~ ?E%.!E NORTHERN DIVISION kIaLIg;kNf=G CLERK u s. 81s i ~ ’ 2 j c * 2 R s CIVIL ACTION NO.: 06-14-DLB LARRY ROBERTS, et al., PLAINTIFFS
V.
SOLIDEAL TIRE, INC., et al., DEFENDANTS
MEMORANDUM ORDER
This matter is before the court on the motions of defendadthird-party plaintiff Solideal
Tire, Inc. (“Solideal”) to exclude plaintiffs’ expert witness and to stay the deadline for disclosing
defendant’s own experts.
Plaintiff Larry Roberts and his wife filed this civil action November 28,2005 in state
court, seeking damages for physical injuries which occurred at the North American Stainless
plant (“NAS”) in Ghent, Kentucky on November 30,2004. Defendants removed the action to
this court January 18,2006. At the time of the accident, plaintiff testified that he was a
mechanic employed by Wilson Diesel who worked almost exclusively at NAS. Mr. Roberts Two physicians treated
alleged he was injured during an attempted repair of a damaged tire.
Mr. Roberts for his back and/or neck conditions after the accident: Dr. Gregory Koo and Dr.
Mitchell Simmons.
Defendants’ Motion to Exclude Plaintiffs’ Expert Witness [DE #24]
The defendants have moved for exclusion plaintiffs’ experts pursuant to Fed. R. Civ. P
37(c)( 1). On December 1,2006, plaintiffs filed a “disclosure of experts” which simply identifies
Dr. and Dr. Simmons as “experts” who will testify, but includes no report or other
documentation. Plaintiffs’ disclosure report also requests additional time in which to disclose a
liability expert following additional discovery.
The defendant argues that the plaintiffs’ report fails to meet the standards laid out in Fed.
R. Civ. P. 26(a)(2)(B) and that any testimony by the treating physicians should be excluded.
Defendant also opposes any extension of plaintiffs’ deadline for expert disclosures, noting that
plaintiffs have engaged in no discovery whatsoever since this action was filed over a year ago.
Defendant claims that the only discovery undertaken to date (by defendant) suggests that
defendant is nothing more than the retailer of the tire and was in no way involved in the
manufacturing process. Defendant contends that the evidence known to date “would indicate the
failure was due to a manufacturing defect in the tire.” Finally, defendant seeks a stay of its own
expert disclosure deadline of January 15, until disposition of defendant’s motion to exclude
plaintiffs’ experts.
Plaintiffs have failed to file any timely response to defendant’s motions.
Fed. R. Civ. P. 26(a)(2)(B) explains the disclosure requirements for experts:
Except as otherwise stipulated or directed the court, this disclosure shall, with
respect to a witness who is retained or specially employed to provide expert
testimony in the case whose duties as an employee of the party regularly involve
giving expert testimony, be accompanied by a written report prepared and signed
by the witness. The report shall contain a complete statement of all opinions to
be expressed and the basis and reasons therefore; the data or other information
considered by the witness in forming the opinions; any exhibits to be used as a
summary of or support for the opinions; the qualifications of the witness,
including a list of all publications authored by the witness within the preceding
ten years; the compensation to be paid for the study and testimony, and a listing
of any other cases in which the witness has testified as an expert at trial or by
deposition with the preceding four years.
Sanctions for failure to provide disclosure of experts under Rule 26 is governed by Fed.
R. Civ. P. 37(c)(l), which states:
A party that without substantial justification fails to disclose information
required by Rule 26(a) or 26(e)(l), or to amend a prior response to discovery as
required by 26(e)(2), is not, unless such failure is harmless, permitted to use as
evidence at a trial, at a hearing, or a motion any witness or information not so
disclosed. In addition to or in lieu of this sanction, the court, on motion and after
affording an opportunity to be heard, may impose other appropriate sanctions.
In addition to requiring payment of reasonable expenses, including attorney’s
fees, caused by the failure, these sanctions may include any of the sanctions
authorized under Rule 37(b)(2)(A), (B), and (C) and may include informing the
jury of the failure to make the disclosure.
Plaintiffs’ initial expert disclosure clearly does not comply with the requirements of Rule
26(a)(2)(B). The report provides nothing more than the identity of the two physicians. Nor have
plaintiffs attempted to remedy the glaring deficiencies of their report, failing even to respond to
defendants’ motions. Although treating physicians are permitted to testify solely within the
scope of their diagnosis and treatment, compliance with Rule 26(a)(2) is required to the
extent those physicians attempt to render expert opinions concerning causation or otherwise in
anticipation of litigation. See, e.g., Mohney v. USA Hockey, Inc., 138 Fed. Appx. 804 (6” Cir.
2005)(unpublished, text available Westlaw); Hawille v. Venderbilt University, h c . , 95 Fed.
Appx. 719 (6th Cir. 2003).
I conclude that the defendant’s motions should be granted to the extent that Drs. and
Simmons are called to render any opinion outside of the scope of their diagnosis and treatment.
AccordSmith v. Botsford Gen. Hosp., 419 F.3d 513 (6th Cir. 2005). Although plaintiffs have
failed to establish just cause for any extension of time to disclose their liability experts, a very
brief extension will be granted in the interest of justice.
Accordingly, IT IS ORDERED:
1. Plaintiffs’ construed motion to extend time in which to disclose a liability expert
[DE #23] is granted, with plaintiffs to disclose any such expert in h l l compliance with Rule
26(a)(2) not later than March 9,2007;
2. Defendants’ motion to exclude plaintiffs’ experts [DE #24] is granted in that Drs. and Simmons will be limited to testifying about their diagnosis and treatment of plaintiffs’
conditions and may not render expert opinions outside of the scope of diagnosis and treatment as
reflected in the medical records;
3. Defendant’s motion to stay disclosure of their experts [DE #25] is granted.
Defendants shall disclose any experts not later than April 9,2007;
4. In light the extension of expert disclosure deadlines, the deadline for filing
dispositive motions is hereby extended until April 30, 2007. Except as reflected in this order,
all deadlines in the scheduling order of May 25,2006 to remain unchanged.
This 11” day of January, 2007.
Signed By: J. Greaory ~~~~~~# Ip.&W United States Magistrate Judge