Plaintiff Valerie Peterson filed a personal injury lawsuit against Defendant Ross Dress for Less, Inc. in the United States District Court for the Eastern District of Missouri. Peterson alleged that on July 6, 2020, while shopping at a Ross Dress for Less store in Poplar Bluff, Missouri, she was struck by an overloaded shopping cart transported by a Ross’ employee, causing her serious injuries.
As per the Case Management Order, the Plaintiff had until July 15, 2023, to disclose expert witnesses. On that date, the Plaintiff’s counsel informed the Defendant’s counsel via email about the intent to name Matthew Gornet as an expert witness, seeking an extension of 45 days to submit Gornet’s report. The Defendant’s counsel agreed to a 30-day extension. On August 15, the Plaintiff’s counsel notified the Defendant’s counsel of the ongoing delay in receiving Gornet’s report. However, on August 18, the Plaintiff’s counsel finally sent Gornet’s report to the Defendant’s counsel, accompanied by a link to various medical records of the Plaintiff.
In his report, Gornet detailed his treatment of the Plaintiff for neck and low back problems, commencing in April 2021, which included two surgeries. He indicated that the Plaintiff would need future treatment for cervical and lumbar spine issues, estimating associated costs. Gornet opined that the incident on or about July 6, 2020, aggravated the Plaintiff’s pre-existing degenerative conditions, basing his opinion on comparative studies, knowledge of similar cases, and a review of relevant medical records.
The Defendant filed a motion to strike Gornet, citing two main reasons: first, the late submission of the report, provided three days after the agreed 30-day extension period, and second, the report’s alleged failure to include required information under Rule 26(a)(2)(B).
Orthopedic Surgery Expert Witness
Dr. Matthew Frederick Gornet, M.D., is a spine surgeon currently employed at St. Louis Spine and Orthopedic Surgery Center. He completed his Bachelor of Arts degree at Washington University. He then attended Johns Hopkins University School of Medicine where he received his Medical Degree. This was followed by a residency program in General Surgery at Johns Hopkins Hospital and then a residency program focused specifically on Orthopedic Surgery, also completed at Johns Hopkins Hospital. Gornet then completed an advanced Spinal Surgery fellowship program at Johns Hopkins Hospital under the guidance of globally renowned spine surgeon Dr. John Kostuik. He is certified by the American Board of Orthopaedic Surgery.
Discussions by the Court
The Court initially addressed the Defendant’s contention that Gornet’s report should be stricken due to non-compliance with Rule 26(a)(2)(B). The Plaintiff countered, asserting that Rule 26(a)(2)(B) was inapplicable to Gornet as he was a treating physician, and instead, compliance with Rule 26(a)(2)(C) was sufficient. The Defendant, in its reply, maintained the position that Rule 26(a)(2)(B) applied but added that even if it did not, Gornet’s testimony should be excluded because he was never appropriately disclosed as an expert under any aspect of Rule 26(a)(2).
Rule 26(a)(2) outlines disclosure requirements for expert witnesses in trial testimony. It distinguishes two categories: (1) experts retained for the case, requiring a detailed report (Rule 26(a)(2)(B)), and (2) other witnesses, who need not provide a report but must disclose the subject matter and a summary of their expected testimony (Rule 26(a)(2)(C)).
The Eighth Circuit clarified the application of these rules to treating physicians offering expert testimony, emphasizing that if a treating physician forms opinions outside their treatment scope, they are considered retained experts and must adhere to Rule 26(a)(2). The Court, in Johnson v. Friesen, 79 F.4th 939, 943 (8th Cir. 2023), held that such physicians must submit an expert report, not just a summary, as mandated by Rule 26(a)(2)(B). Failure to comply may result in exclusion of the expert’s testimony, as seen in Johnson and other related cases.
The situation involves Gornet, identified as one of the Plaintiff’s treating physicians, detailing his treatment, including two surgeries. The Plaintiff’s deposition testimony confirms that she was referred to Gornet after physical therapy proved ineffective. Despite establishing Gornet as a treating physician, it’s emphasized that this alone doesn’t determine the applicability of Rule 26(a)(2)(B) to his opinions. The crucial consideration is whether Gornet’s views on the cause of the Plaintiff’s injury and her future treatment needs and costs were formed “in the course of providing treatment,” a legal standard not addressed by either party in their submissions.
Upon reviewing the record, the Court determined that Gornet’s opinions were, to some extent, formulated outside the course of providing treatment to the Plaintiff. Gornet’s letter was a response to a request from the Plaintiff’s counsel for an “expert opinion and narrative report” concerning the causation of the injuries and future treatment needs. The letter contained specific treatment recommendations and cost estimates for procedures over the next decade, suggesting these conclusions likely did not arise during the course of the Plaintiff’s treatment. Notably, Gornet did not specify when he formed his causation opinion but indicated it was based on various comparisons and reviews. The Court found it more likely that Gornet developed these opinions outside the context of providing treatment, considering the detailed nature of his recommendations, his compensation for the report, and the indication from the Plaintiff’s attorney that Rule 26(a)(2)(B) requirements applied.
The Court concluded that Gornet formed his opinions outside the course of providing treatment to the Plaintiff, making him subject to Rule 26(a)(2)(B). However, the Court agreed with the Defendant that Gornet’s two-and-a-half-page report did not fully meet the requirements of Rule 26(a)(2)(B).
First, Gornet’s report lacked the necessary detail regarding the “facts or data considered” in forming his opinions, as mandated by Rule 26(a)(2)(B)(ii). Second, it failed to include any exhibits supporting his opinions, violating Rule 26(a)(2)(B)(iii). Third, the report lacked information on Gornet’s qualifications and publications from the past 10 years, contravening Rule 26(a)(2)(B)(iv). Fourth, it did not provide a comprehensive list of cases in which Gornet testified over the previous four years, violating Rule 26(a)(2)(B)(v). Finally, the report did not contain a clear statement of the compensation to be paid for Gornet’s study and testimony, as required by Rule 26(a)(2)(B)(vi).
As a result of these deficiencies, the Court determined that the Plaintiff did not comply with Rule 26(a)(2)(B) regarding Gornet’s expert report. Additionally, the Court deemed Gornet’s non-compliant report untimely, being submitted three days after the agreed-upon 30-day extension in the Case Management Order.
The Court then addressed the Plaintiff’s failure to comply with Rule 26(a)(2)(B) and the Case Management Order, the potential remedies were emphasized under Rule 37. Rule 37 provided the Court with wide discretion to impose sanctions for noncompliance, including exclusion of evidence, unless the failure was substantially justified or harmless. However, the Court acknowledged that the exclusion of evidence was a severe measure and should be used sparingly. Rule 37(c)(1) allowed the Court to order the payment of reasonable expenses and attorney’s fees caused by the failure to disclose and impose other appropriate sanctions. In determining an appropriate remedy, the Court considered factors such as the reason for noncompliance, the surprise and prejudice to the opposing party, the potential disruption to trial order and efficiency, and the importance of the information or testimony.
After considering relevant factors, the Court determined that the circumstances did not justify the severe sanction of excluding all or part of Gornet’s testimony. Regarding the first factor, the Plaintiff did not explicitly state the reason for noncompliance, but it seemed to result from a combination of misunderstanding the applicable law and a failure to ensure timely submission of relevant information by Gornet. This factor slightly favored exclusion. Concerning the second factor, the surprise and prejudice to the Defendant appeared minimal, as the Plaintiff’s actions did not involve attempting to spring new expert testimony on the Defendant on the brink of trial. Instead, the Plaintiff submitted a deficient report three days late, and adjustments to the Case Management Order could accommodate the necessary steps for the Defendant. The third factor, related to trial order and efficiency, favored allowing Gornet to testify, given the trial was more than eight months away. The fourth factor, emphasizing the importance of the information or testimony, strongly opposed exclusion, as Gornet’s testimony held significant relevance to the Plaintiff’s case. Considering these factors, the Court found the Plaintiff’s noncompliance with Rule 26(a)(2)(B) to be harmless under the circumstances, and exclusion was deemed unwarranted.
While the Court chose not to exclude Gornet’s testimony, it deemed a lesser sanction appropriate for the Plaintiff’s failure to comply with Rule 26(a)(2)(B) and the Case Management Order. Considering the circumstances, the Court found awarding reasonable fees and costs to the Defendant as an appropriate sanction. However, the Court decided to provide the Plaintiff with an opportunity to be heard before imposing this sanction, following the procedure outlined in Fed. R. Civ. P. 37(c)(1). The Court set brief deadlines for the Defendant to file a motion requesting and documenting reasonable fees and costs, for the Plaintiff to respond to those fees and costs, and for the Plaintiff to supplement her Rule 26 disclosures with a compliant expert report from Gornet within twenty-one days. Additionally, the Court extended remaining deadlines in the Case Management Order to allow the Defendant sufficient time for Gornet’s deposition and expert disclosures. This approach aligns with decisions made by other district Courts in similar situations.
Held
The Court denied Defendant’s Motion to Strike Plaintiff’s Expert Witness Matthew Gornet. The Court issued further orders directing the Plaintiff to supplement her Rule 26 disclosures and provide a compliant supplemental expert report from Gornet within twenty-one days. Additionally, the Defendant was instructed to file a motion for reasonable fees and costs within fourteen days, with the Plaintiff required to respond within the same timeframe after the motion is filed. The parties were directed to meet and confer within fourteen days to submit a Joint Proposed Scheduling Plan, suggesting new deadlines for a Second Amended Case Management Order. The Court reserved the option to decide whether a scheduling conference would be necessary based on the submitted plan before entering a Second Amended Case Management Order.
Key Takeaways
This case demonstrates that treating physicians providing expert opinion testimony may be subject to the more stringent report requirements of Federal Rule of Civil Procedure 26(a)(2)(B) rather than the more lenient disclosures of Rule 26(a)(2)(C). The key factor is whether the physician formed the expert opinions at issue in the course of providing treatment to the patient. If the opinions were formed outside the course of treatment, Rule 26(a)(2)(B) likely applies.
Here, Gornet offered specific opinions on causation, future treatment, costs, and prognosis that he appears to have formed at least partly outside the course of Peterson’s treatment. Thus, his report had to comply with Rule 26(a)(2)(B). His failure to do so subjected Peterson to potential sanctions, including exclusion of Gornet’s testimony. However, the Court opted for lesser sanctions since exclusion seemed too harsh under the circumstances. The case shows Courts have broad discretion to fashion appropriate remedies for violations of expert disclosure rules. Their goal is finding a fair outcome, not punishing a defective expert report.
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