Plaintiff Sheli D. Milam Sams and Dr. Bradley Sams had Safeco Policy No. F335202 (“the Policy”) that included underinsured motorists (“UIM”) coverage. On February 13, 2021, Plaintiff was involved in an automobile accident in Colorado. The other driver, Semega Mahamadou, was at fault, and Mahamadou’s vehicle had an Allstate policy. Mahamadou’s Allstate policy had liability limits of $25,000 per person, and Allstate paid Plaintiff $25,000. Plaintiff’s sole formal doctor’s visit involved an x-ray in 2021. Dr. Charles Menendez interpreted the x-ray as showing a nondisplaced sternal fracture. Plaintiff’s husband provided treatment to her over the course of her recovery.
Defendant Safeco Insurance Company of Illinois (“Safeco”) sought to exclude or limit Sams’ designated experts, Dr. Charles Menendez and Plaintiff’s husband, Dr. Bradley Sams. Plaintiff argued that they acted as treating physicians.
Radiology Expert Witness
Charles Menendez is a board-certified radiologist who specializes in the general practice of radiology.
Bradley C. Sams received his medical degree and completed his residency training in obstetrics and gynecology at Louisiana State University Health Science Center. Sams is a member of the Mississippi Medical Association, the American College of Phlebology, and the American Association of Bariatric Physicians.
The parties contest whether Plaintiff properly disclosed her designated experts as treating physicians.
Plaintiff designated Menendez as a treating physician, so he was not required to provide a written report. But if a treating physician does not provide a written report, the physician’s testimony will be limited to opinions acquired based on the physician’s personal knowledge of the examination, diagnosis and treatment of a patient and not from information acquired from outside sources.
Menendez did not provide a written report, so any testimony he offers will be limited to be personal knowledge contained in his medical records and cannot come from information acquired from outside sources.
In contrast to Menendez, Sams’ disclosure as a treating physician did not satisfy Rule 26. A Plaintiff must provide more information than the treating physician’s facts, data, and symptoms he observed in his patients during treatment. Plaintiff provided no medical records from Sams which contain his expected testimony or a written report for that matter.
Alternatively, the Court determined that Sams admitted that he rendered no formal medical treatment to Plaintiff; this admission took Sams outside the scope of testifying as a treating physician, so he cannot satisfy Rule 26(a)(2)(C).
Held
The Court granted in part and denied in part Defendant Safeco Insurance Company of Illinois’ motion to exclude or limit the testimony of Charles Menendez and Bradley Sams.
Key Takeaway
A court considers the importance of the witnesses’ testimony. Because Sams did not render formal medical treatment to Plaintiff, his alleged expert testimony is not important. Besides, failure to properly disclose an expected expert’s testimony is grounds for prohibiting introduction of that evidence at trial.
Case Details:
Case Caption:
Sams V. Safeco Insurance Company Of Illinois
Docket Number:
1:24cv337
Court Name:
United States District Court, Mississippi Southern
The instant matter arises out of a power catamaran scenic and snorkel tour that Plaintiffs Candice Myhre and Norman Davidson, IV boarded on May 14, 2021 from Kikiaola Small Boat Harbor.
As the vessel began to exit the harbor, it encountered large waves, and Myhre stated that she flew out of her seat, hit her face on the vessel’s railings, and slammed down onto metal seats. As a result, she was transported to Kauai Medical Clinic for medical care and received treatment for physical injuries to her face, knee, and lower leg.
On June 24, 2025, Plaintiffs disclosed Dr. Derek S. Johnson, D.O. as “Plaintiffs’ medical expert who will testify, including but not limited, to Plaintiff Candice Myhre’s injuries and damages issues.”
Defendants contended that Johnson’s disclosure was untimely because Plaintiffs failed to disclose him properly as a medical expert.
Orthopedic Surgery Expert Witness
Dr. Derek S. Johnson, D.O. is a graduate of the Doctor of Osteopathic Medicine Program at Midwestern University-Glendale Medical School and completed his Orthopaedic Surgery residency at Pinnacle Health System in Harrisburg, PA. He currently serves as the Department Chair of Orthopedic Surgery at Wilcox Medical Center.
Defendants argued that they would be plainly prejudiced should Johnson be permitted to testify as a retained expert or as a treating physician at trial because the trial is scheduled to commence in less than sixty days and the discovery deadline has expired.
Plaintiffs, however, contended that Johnson was disclosed on June 24, 2025 as a non-treating medical expert, and his opinions were disclosed on October 9, 2025. There was no failure to identify Johnson as a retained non-treating physician, they argued, because they stated in the initial disclosure that “‘Plaintiffs reserve the right to supplement and/or amend [their] disclosure as necessary and as additional information becomes available through discovery and other means.’” Plaintiffs argued that if there was a failure to disclose, that failure was merely harmless under Rule 37(c)(1).
The key question is: does Rule 26(a)(2)(B)’s written report requirement apply to Johnson’s disclosure as an expert witness? Johnson is not identified as a treating physician; the opinions expressed do not indicate that they were formed during Plaintiff’s treatment; and Plaintiffs state that he was not a treating physician for Myhre. Therefore, Rule 26(a)(2)(B) applies. Plaintiffs thus were required to disclose Johnson as an expert witness and provide an accompanying written report by the expert witness disclosure deadline of June 30, 2025.
The expert report was not provided by that deadline and, to the extent that Plaintiffs contended that their submission of his report on October 9, 2025 was a supplemental disclosure, this contention fell short of the mark because of Rule 26(a)(2)(B)’s directive that the written report must accompany the expert witness disclosure.
Analysis
The Court concluded that the failure to disclose was not harmless and that lesser sanctions are not reasonably available.
Plaintiffs have not carried their burden of proving harmlessness. Trial is scheduled to be held in two months and discovery has been completed. Johnson’s opinion report is not dated but the request for his opinions is dated February 21, 2025, which is seven months before it was disclosed to Defendants and four months before the expert witness disclosure deadline.
A lesser sanction could be to require Plaintiffs to pay the costs and attorney’s fees to allow Defendants to take Johnson’s deposition. However, taking Johnson’s deposition and possibly retaining a defense medical expert with sufficient time to allow that expert to review medical records and Johnson’s testimony and having the defense expert prepare a report and have his or her deposition taken takes time; most likely four to six months, which is much more time than the two months before this matter is scheduled for trial.
While Johnson’s testimony does bear upon Myhre’s claims of physical injuries (more specifically, the cause of her sepsis), there is no indication that her treating physicians are unable to testify regarding the nature and extent of her injuries for which she was treated and that they observed.
Since Johnson’s opinion testimony has no bearing on liability issues, the Court cannot conclude that excluding Johnson will deal a fatal blow to Plaintiffs’ claims. The Court also cannot conclude that Plaintiffs had an excuse for the late disclosure, such as needing additional time for the expert disclosure, because they did not seek an extension of the deadline from the magistrate judge nor explain the reason for their failure to comply with the Rule 16 deadline.
Held
The Court granted Defendants’ motion to strike Derek Johnson, D.O. as an expert witness.
Key Takeaway
It should be noted that no explanation is offered as to why it took from February to October to obtain and disclose Johnson’s written opinion report. There is no indication that his report could not have been disclosed by the June 30, 2025 expert disclosure deadline.
The Court concluded that the non-compliance was not harmless; that there are no lesser sanctions available given the short time before trial; and that the exclusion sanction is warranted and will not result in a fatal blow to Plaintiffs’ claim.
On October 27, 2022, a three-vehicle collision occurred on Interstate-10 in Phoenix, Arizona. Defendant Eduardo Serrato was operating a tractor trailer when he struck the rear of a Dodge Dart, killing a non-party individual inside the vehicle. The Dodge Dart was pushed across two lanes, and it impacted the tractor trailer containing Plaintiffs Robert Hanifon and Edelmira Encarnacion. Serrato had “nodded off” before the collision, although he had not fallen asleep.
Serrato, a Class-A Commercial Vehicle licensed driver, was employed by Defendant J.B. Hunt, and the tractor trailer he was driving was owned by J.B. Hunt. In addition to Serrato’s involvement in the collisions prior to his employment with J.B. Hunt, Serrato’s employee file noted several incidents that took place leading up to the October 27, 2022, collision.
Plaintiffs intended to have two life care planning experts testify about Plaintiffs’ future medical care—Dr. Caitlin Civiello would testify on Ms. Encarnacion’s and Dr. Pallavi R. Cherukupally on Mr. Hanifon’s.
J.B. Hunt filed motions to strike and exclude portions of the report and proposed testimony of both experts on substantially identical bases.
Life Care Planning Expert Witnesses
Caitlin E.A. Civiello is an emergency room physician and a certified life care planner. Civiello received her M.D. from the Tufts University School of Medicine. She has extensive experience in life care planning and emergency treatment and pain management, including steroid injections and trigger point injections.
She authored a life care plan that purports to identify the care that Encarnacion will need in the future and the price for that care.
Pallavi R. Cherukupally is a board-certified physician in Physical Medicine and Rehabilitation. She is a nationally recognized leader in Regenerative and Interventional Spine Medicine and a certified life care planner.
Plaintiff Edelmira Encarnacion has identified Dr. Caitlin Civiello of the expert witness firm, LCPpro LLC, as the life care planning expert that plans to testify as to her future medical care.
1.Medical Foundation
J.B. Hunt contended that Civiello’s life care plan lacked medical foundation because Civiello did not have the requisite expertise and did not consider comprehensive enough evidence. The Court disagreed.
J.B. Hunt pointed out that Civiello’s opinions did not conform to recommendations made by Encarnacion’s treating providers.
There is no requirement that an expert’s opinions agree with the recommendations of a treating physician. That is why it is common to have competing testimony between a treating physician and medical expert.
To the extent Civiello’s opinions diverge from specific recommendations, the Court concluded that those opinions may nonetheless stand on her independent review of the medical records and literature, and her experience as a licensed physician and certified life care planner.
J.B. Hunt argued that her opinions are inadmissible because she lacked credentials in orthopedics, neurology, and psychology. She also lacked experience providing non-emergency treatment and pain management care.
The Court, however, will not exclude Civiello’s testimony by virtue of the fact that she is not a specialist in all areas of care outlined in her report. The jury may weigh her testimony accordingly.
2. The LCPPro Database
In addition to identifying future care, Civiello also estimated the “usual, customary, and reasonable” (“UCR”) cost of that care using the LCPPro Median Cost Research Database.
The data consists of only medical bills from cases where an LCPpro expert was retained to author a life care plan. In other words, the care LCPpro references in the data is care provided almost exclusively to Personal Injury Plaintiffs. An LCPpro employee, Shelene Giles, maintains the database.
The Northern District of Georgia recently found that an LCPpro expert could not offer opinions based on the LCPpro Database because it was confidential, so the jury could not “probe its functioning or accuracy.”
The LCPpro Database is based on a limited sample of data, despite being relied upon for conclusions about a broader population. The Court found that Civiello’s expert testimony must be excluded under Rule 702 to the extent that it relied upon the LCPpro Database.
Still, Plaintiffs made it “excruciatingly clear” that the LCPpro Database is not a methodology, but merely facts relied upon. But even assuming this is true, an admissible expert opinion is based on reliable methodologies and sufficient facts.
Pallavi Cherukupally
Like Civiello, Cherukupally is a life care planning expert employed by the expert witness firm, LCPpro. Plaintiffs authored a life care plan for Hanifon, and Plaintiffs planned to offer his testimony on Hanifon’s future medical care needs. Defendants filed a motion to exclude much of Cherukupally’s testimony.
Defendants argued that Cherukupally’s opinion lacked medical foundation because Cherukupally is not a certified specialist concerning every treatment she includes in her plan. They also argued that her opinions diverge from the recommendations made by Hanifon’s treating physician. Again, there is no requirement that an expert’s opinions agree with the recommendations of a treating physician. As with Civiello, Cherukupally possesses experience and qualifications as a physician and life care planner. Her opinions align, at least in part, with the recommendations of Hanifon’s treating physicians.
The Court will not exclude Cherukupally’s opinions in their entirety. The Court, however, will exclude Cherukupally’s opinions based on the LCPpro Database for the same reasons that it is excluding those of Civiello. Unlike Civiello, Cherukupally relied on her team to calculate averages and medians of data in the LCPpro Database. Although the parties make much of this fact, it does not alter the Court’s analysis.
Held
The Court granted in part and denied in part the Defendants’ motions to exclude the testimony of Caitlin E.A. Civiello and Pallavi R. Cherukupally.
Key Takeaway
Although the fact that a physician may be a board-certified specialist may warrant giving greater weight to that physician’s opinion on an issue in his or her area of expertise, there is no requirement that a physician be actively practicing, or practicing in a particular area of, medicine in order to qualify as a medical expert.
Plaintiffs cannot sidestep Rule 702 by rebranding the output of their opaque data selection process as “facts.”
Michael Braun filed a lawsuit against his former employer, Norton Healthcare, Inc., claiming that he was fired from his job as a Staff Pharmacist due to disability discrimination and retaliation. He alleged that this conduct violated the Americans with Disabilities Act (ADA).
Subsequently, on November 29, 2024, Braun disclosed Dr. Mark Bazant as his treating physician and indicated that Bazant might be called as a witness.
According to the disclosure, Bazant was retained to provide testimony regarding “the future anticipated effects of SCA2 on Plaintiff,” the “future anticipated treatment of Plaintiff’s SCA2,” and the “reasonable accommodations he recommended,” all “based on his medical training and his ongoing treatment of Plaintiff.”
Nevertheless, Plaintiff denied that Bazant qualifies as an expert witness, asserting instead that Bazant is a treating physician who may testify only as a lay witness. In response, Defendant filed a motion to strike Bazant as an expert witness or, alternatively, to limit his testimony “only to what he directly observed while treating [Plaintiff].”
Neurology Expert Witness
Dr. Mark Paul Bazant, M.D., is a board-certified neurologist with Norton Neurology Services. Bazant earned his medical degree from the University of Nebraska College of Medicine in Omaha. He completed his residency in neurology and fellowship in clinical neurophysiology – electromyography (EMG) at the Indiana University School of Medicine in Indianapolis. His areas of special medical interest are EMG and neuromuscular neurology. Bazant is a member of the American Academy of Neurology and the American Association of Neuromuscular & Electrodiagnostic Medicine.
Despite Plaintiff’s assertion that Bazant is not an expert witness, Plaintiff intended to call him to provide expert testimony
The Plaintiff argued that the Court should deny the Defendant’s motion as moot, stating that he had not identified Bazant as an expert witness. However, the Court found that whether or not Bazant was formally designated as an expert was irrelevant to the disclosure requirements under Rule 26(a)(2). When a witness’ testimony will be based on scientific, technical, or other specialized knowledge, then a party cannot evade the requirements of Rule 26(a)(2) simply by designating that witness as a lay witness.
The Court held that Bazant’s proposed testimony qualified as expert testimony under Rule 26(a)(2) because it relied on medical judgments based on his specialized knowledge and training. While Bazant’s testimony about his treatment of the Plaintiff and his efforts to assist Plaintiff in obtaining a reasonable accommodation could be considered lay testimony under Rule 701, the rest of his testimony went beyond that.
Specifically, Bazant was expected to testify about the future anticipated effects of SCA2 on the Plaintiff, the future course of treatment, and the reasonable accommodations he recommended—all based on his medical training and his ongoing treatment of the Plaintiff. The Court concluded that this portion of his testimony clearly involved expert opinions requiring proper disclosure under Rule 26(a)(2).
Plaintiff’s disclosure of Bazant did not comply with Rule 26(a)(2)(C)
In this case, the Court found that the Plaintiff’s disclosure of Bazant was deficient under Rule 26(a)(2)(C). The disclosure failed to include a summary of the facts and opinions that Bazant was expected to testify about. Instead, it merely listed the general topics of his anticipated testimony without providing his actual opinions or conclusions relevant to the case. Furthermore, the disclosure did not explain the factual basis on which Bazant formed his opinions. As a result, the Court concluded that the Plaintiff had not satisfied the requirements of Rule 26(a)(2)(C).
Although Plaintiff’s noncompliance with Rule 26(a)(2)(C) was harmless, the Court permitted Plaintiff to remedy the deficiency of his disclosure
If the Defendant had already deposed Bazant without access to all the information related to his opinions on the Plaintiff’s future treatment, impairments, and recommended accommodations, it might have resulted in unfair surprise. However, the Court could not determine from the record whether Bazant had actually been deposed. The fact that the Defendant filed a Motion to Strike based solely on the Plaintiff’s disclosure suggested that the Defendant had recognized the disclosure’s deficiencies early enough to avoid being unfairly surprised. Additionally, neither party cited any of Bazant’s opinions in support of a motion. Therefore, the Court concluded that the Defendant was not unfairly surprised by the Plaintiff’s inadequate disclosure.
The Court also considered the importance of Bazant’s testimony. While the significance of the evidence could be argued in both directions, courts generally hold that the more important the testimony, the more it weighs in favor of the party who disclosed the witness. Since the Plaintiff sought relief for the Defendant’s alleged failure to accommodate his condition under the Americans with Disabilities Act, expert testimony on reasonable and necessary accommodations was considered important to the Plaintiff’s claim.
Lastly, the Court evaluated the Plaintiff’s explanation for failing to adequately disclose Bazant as an expert witness. The Plaintiff argued that Bazant was not disclosed as an expert because he was a treating physician and therefore should be treated as a lay witness not subject to Rule 26(a)(2)(C). However, because the legal standards under Rule 26(a)(2)(C) had become more settled since the rule’s amendment, the Court found the Plaintiff’s explanation to be insufficient.
Taking these factors together, the Court held that Plaintiff’s mistake was harmless. The Court, consequently, permitted Plaintiff to supplement his disclosure of Bazant to remedy the deficiencies while bearing in mind the requirements of Rule 26(a)(2)(C).
Held
The Court denied the Defendant’s motion to strike the testimony of Mark Bazant without prejudice.
Key Takeaway:
Under Rule 701, a lay witness may testify in the form of an opinion only if it is not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Thus, a witness that provides opinion testimony beyond the scope of Rule 701 must be disclosed under Rule 26(a)(2) of the Federal Rules of Civil Procedure. Treating physicians may provide lay opinion testimony under Rule 701 provided such testimony is based on their first-hand observations and treatments of their patients.
Here, the Court held that Bazant’s intended testimony is expert testimony governed by Rule 26(a)(2) because it includes medical judgments based on his specialized knowledge and training.
Florida Southern District Court decided that a podiatry expert witness’ causation theory with regard to severe burns was admissible after she compared and contrasted the Plaintiff’s health before and after the incident.
This is a negligence action in admiralty for damages the Plaintiff suffered while vacationing aboard the Explorer of The Seas on May 14, 2022. The Plaintiff alleged that on May 14, 2022, he sustained severe burns on the soles of his feet while standing on the ship’s heated pool deck. The Plaintiff sought treatment on board, and medical staff diagnosed him with second-degree burns. The Plaintiff’s expert witness and treating podiatrist, Dr. Julia Shauger, evaluated the Plaintiff on May 25, 2022, upon his return home and diagnosed the Plaintiff with third-degree burns to the “entire surface plantar feet.” Shauger also stated that the Plaintiff’s diabetes and neuropathy were complicating factors.
Defendant sought to exclude Shauger’s opinion on three grounds: (1) she provided speculative opinions and testimony about the costs of future care; (2) her opinions on causation were unreliable; and (3) Shauger’s expert disclosure was deficient under Federal Rule of Civil Procedure 26(a)(2).
Podiatry Expert Witness
Julia Shauger, DPM is a board-certified podiatric physician and surgeon with nearly 30 years of experience and specialties in cryoskin, laser fungal toenails, and minimally invasive surgery. Shauger earned her Bachelor of Science in Biology from St. Xavier University before attending the prestigious William M. Scholl College of Podiatric Medicine in Chicago, IL., where she graduated with a Doctorate of Podiatric Medicine in 1993, followed by postgraduate training in podiatric primary care, orthopedics, and surgical medicine. Shauger maintains membership with several leading organizations in her field, including the American Podiatric Medical Association, the American Podiatric Women’s Association, and the American Academy of Podiatric Sports Medicine. She is licensed to practice in both Illinois and Indiana, and speaks three languages: English, French and Spanish.
Discussion by the Court
Shauger could only speculate as to the costs of a future procedure of which the Plaintiff is not currently a candidate
Defendant challenged the reliability and helpfulness of Shauger’s testimony. First, Defendant contended Shauger “could only speculate . . . as to the costs of a future procedure of which the Plaintiff is not currently a candidate.” Shauger referred to her medical procedure codes that estimated the cost of laser oblation, if necessary to treat the Plaintiff’s burned feet, somewhere between $138 to $142 per foot with another roughly $5,000 to $20,000 in hospital costs. Defendant believed this was too speculative to satisfy Daubert.
The Plaintiff has been a patient of Shauger since October 2022 for fungal infections, ingrown toenails, and diabetes affecting his feet. Shauger stated that before the alleged incident, the Plaintiff did not have burns, blisters, lesions, or injuries to either foot.
Moreover, based on the Plaintiff’s injury and her records, she was sure that the Plaintiff’s description of the injury was consistent with the burn injuries she observed on May 25, 2022. Lastly, any nerve damage the Plaintiff sustained was caused by the alleged incident.
Shauger added, “The codes I would bill are really negligible.” In reaching her medical conclusion, she looked at her medical notes only. Moreover, she stated that ensuring the Plaintiff always stays protected would rule out the need for procedure.
The Court held that even though Shauger could not state “how long or how much future treatment is going to cost,” but she did provide an estimate that built a meaningful connection between her experience and the cause of injury.
Shauger’s medical opinions were unreliable because she did not consult any other of the Plaintiff’s medical records or any of the depositions in this case
Second, the Plaintiff contended that Shauger’s medical opinions were unreliable because she did not consult “any other of the Plaintiff’s medical records or any of the depositions in this case.” Shauger ultimately opined that ship’s heated pool deck caused the Plaintiff’s burns by comparing the Plaintiff’s visits before the alleged incident and afterward.
Defendant contended that since Shauger did not consult shipboard medical records, the Plaintiff’s medical records, or any of the other depositions taken to form a proper causation theory, Rule 702(b) of the Federal Rules of Evidence disqualified her testimony. They challenged her opinion for failure to consult medical documents other than her own notes.
The Plaintiff, however, distinguished Morrow from the facts here because the treating physician in Morrow had not reviewed the Plaintiff’s pre-incident medical records. The Court found weight in this distinction. Shauger had evaluated the Plaintiff less than a month before the incident for an ingrown toenail and had seen him within days after the incident.
She testified at her deposition that the Plaintiff had feeling on his soles before the incident and had no lesions, burns, injuries, or blisters on either foot. Moreover, this Court has stated that future determinations do not need to be airtight.
Defendant contends Shauger did not comply with Rule 26(a)(2) by providing details regarding her “qualifications, education/training, and professional experience“
If the Court were to find that Shauger’s disclosure was pursuant to Rule 26(a)(2)(B), Shauger should be excluded because there was no written report, proper CV, fee schedule, or testimonial history provided with the disclosure as listed. If the Court were to give the Plaintiff the benefit of the doubt, Shauger could be considered to have been disclosed by the Plaintiff as a non-retained expert, treating physician, which would make Shauger’s disclosure subject to Rule 26(a)(2)(C) disclosure requirements.
Defendant’s argument appeared to boil down to the Plaintiff not meeting the requirements of a Rule 26(a)(2)(C) non-retained expert. Defendant added that the Plaintiff provided no summary of facts and instead included “an ineffective list of broad, proposed opinions.”
A treating physician/non-retained expert complies with Rule 26(a)(2)(C) when she provides “the subject matter and a summary of facts and opinion as to which [she] [is] expected to testify.” Disclosure under Rule 26(a)(2)(c) follows a much more flexible standard than the required reporting in Rule 26(a)(2)(B) required for retained expert witnesses.
Shauger provided thirty-eight pages of medical reports concerning the Plaintiff before and after the alleged incident as Plaintiff’s treating physician. Additionally, the Plaintiff satisfied the “subject matter” prong of Rule 26(a)(2)(C) by describing Shauger’s background and explaining that she will provide testimony concerning “Plaintiff’s shipboard injury, the unreasonably hot ship’s deck as the case of his injury.”
Shauger based her theory of causation on her own examinations of the Plaintiff as his treating physician. Her medical reports would have ostensibly been made to evaluate and treat the Plaintiff—and not for pursuing litigation. As the Plaintiff’s podiatrist, Shuager concluded that the Plaintiff had third-degree burns and loss of mobility were likely caused from an extremely hot heating deck.
The Court found that the Plaintiff complied with the disclosure requirements of Rule 26(a)(2)(C).
Held
The Court denied the Defendant’s Daubert Motion to Strike the Testimony of Julia Shauger, M.D.
Key Takeaways:
Logical Conclusion: Shauger testified at her deposition that the Plaintiff had feeling on his soles before the incident and had no lesions, burns, injuries, or blisters on either foot. An expert comparing and contrasting a the Plaintiff’s health before and after the incident is fine, so long as the expert reaches a logical conclusion. These facts and the before-and-after reports would be reliable information helpful to a jury.
Absolute Certainty: Shauger could not state “how long or how much future treatment is going to cost,” but she did provide an estimate that built a meaningful connection between her experience and the cause of injury. “Absolute certainty” is not the aim of reliable expert testimony.
Disclosure Requirements: Disclosure under Rule 26(a)(2)(c) follows a much more flexible standard than the required reporting in Rule 26(a)(2)(B) required for retained expert witnesses.
In an underinsured motorist (“UIM”) bad faith action stemming from a car accident, Todd Cope presented at the emergency room after his vehicle was rear-ended on November 6, 2013, citing complaints of occipital headache, pain behind his right eye, and cervical spine pain. Medical records at that time indicated no acute traumatic injuries to the skull, brain, cervical, or thoracic spine. Cope was discharged without medication and advised self-care. Subsequently, a lumbar MRI conducted two months post-accident revealed a disc herniation at L5-S1.
Before the accident, in March 2011, Cope experienced a back injury from a fall through a flight of stairs. This incident caused low back pain radiating down his extremities. A lumbar spine MRI in May 2011 showed disc bulges at L4-5 and L5-S1. Even two years later, in April 2013, Cope continued treatment for low back and right leg pain attributed to the 2011 fall.
Within this UIM bad faith action, Todd Cope disclosed several medical providers as non-retained expert witnesses, including Dr. Bryan Castro, his former treating spine surgeon, and Dr. Roberta Anderson-Oeser, his treating physical medicine and rehabilitation physician. Additionally, Cope disclosed Aubrey Corwin as a life care planning “expert” and Brad Levin as an insurance standard-of-care expert. Auto-Owners Insurance Company seeks to exclude opinions they deem improperly disclosed, unsupported, unreliable, or unhelpful.
Life Care Planning Expert Witness
Aubrey A. Corwin M.S., L.P.C., C.R.C., C.LC.P. is a vocational rehabilitation and life care planning expert. She testifies as an expert in cases involving both loss of earning capacity and life care planning nationwide. She is a Licensed Professional Counselor (LPC); a Certified Rehabilitation Counselor (CRC); a Certified Life Care Planner (CLCP); and a former Certified Guidance Counselor. She is past Co-Chair of the Forensic Section of the International Association of Rehabilitation Professionals (IARP) and past Forensic Representative to the IARP International Board of Directors. She is also a member of the American Board of Vocational Experts (ABVE).
Insurance Law Expert Witness
Bradley A. Levin focuses his practice on tort and commercial litigation, especially insurance bad faith and insurance coverage disputes. He has significant litigation and trial experience.
Levin received his undergraduate degree from Stanford University, with distinction, where he was elected Phi Beta Kappa. He graduated from the University of California, Hastings College of Law, and served as editor-in-chief of the Hastings Constitutional Law Quarterly.
In addition to teaching legal writing and research at Hastings College of Law, Levin has lectured frequently in the areas of insurance coverage and bad faith law. He is licensed to practice in California and Colorado. He is a member of the Denver, Colorado and American Bar Associations.
Discussion by the Court
The Defendant sought to prevent Castro and Anderson-Oeser from presenting causation opinions during the trial. Both doctors were non-retained experts who had not submitted formal expert reports. The Defendant argued that their opinions on causation lacked reliability for various reasons. Proving injury causation necessitates demonstrating both general and specific causation. “Specific causation” pertains to whether a particular incident directly caused the specific injury, while “General causation” concerns whether the incident could theoretically lead to the type of injury suffered.
According to the ruling in Hollander v. Sandoz Pharmaceuticals Corp. (289 F.3d 1193, 10th Cir. 2002), general causation could be established through means like epidemiological evidence. The Court highlighted that an expert was not obligated to reference published studies to reliably conclude that a specific object caused a particular illness.
In the Defendant’s Motion, it was outlined that based on the Plaintiff’s Rule 26(a)(2) expert disclosures, Castro intended to testify about several key points:
Cope’s persistent back and leg pain, attributing it to a substantial herniation on the right side at L5-S1, asserting it was caused by the November 6, 2013, collision.
Denial that Cope suffered any disc herniation due to a 2011 worker’s compensation fall at any spinal level.
Confirmation that Cope underwent a corrective surgery on May 8, 2014, not for impingement but explicitly linked to the November 6, 2013, crash.
Affirmation that subsequent surgeries, including a revision on November 19, 2015, were deemed necessary and reasonable consequences of the November 6, 2013, collision.
Assertion that Cope’s symptoms preceding the specific collision did not necessitate a subsequent lumbar MRI and that the pain experienced was notably distinct.
Examination and reference to all physical therapy records preceding the collision and all records pertinent to Cope’s 2011 worker’s compensation claim, encompassing impairment ratings and work restrictions.
Expressing the potential for the third herniation to self-heal but highlighting the possibility of future fusion surgery if self-healing doesn’t occur.
Affirmation of the reasonableness of bills for services rendered by Castro.
The Defendant sought to prevent Castro from expressing opinions on causation related to whether the car accident caused the Plaintiff’s reported injuries or pain, specifically disputing Castro’s assertion that the accident led to the disc herniation or the subsequent lumbar surgeries he performed.
Initially, the Defendant argued that Castro’s statement didn’t constitute a causation opinion as it didn’t assert that the accident was more likely than not the cause of the Plaintiff’s current symptoms, pointing to a June 02, 2017 statement in Plaintiff’s medical records. The Defendant further contended that Castro’s language was too vague and incomplete to be considered a definitive opinion on causation, especially concerning the surgeries he conducted in 2014 and 2015.
The Defendant stressed that the medical records by Castro contained no explicit causation opinions, highlighting a supposed violation of Rule 26 disclosure requirements. The Plaintiff, however, argued that any such violation was harmless since the Defendant had elicited opinions from Castro during a deposition in 2018 before the expert disclosure deadline. The Plaintiff also contended that the Defendant’s objection was based on Castro not being paid to document his causation opinions expressed during the 2018 deposition.
Ultimately, despite Castro discussing causation in his deposition testimony, the Court ruled that his deposition didn’t suffice as an expert report as required by Rule 26. The Court emphasized that even for retained experts who usually submit expert reports, deposition testimony couldn’t substitute for Rule 26’s explicit disclosure requirements. Consequently, the Court decided to preclude Castro from offering causation opinions during the trial.
The Court emphasized that based on the absence of general or specific causation opinions from Castro, Rule 26(a)(2) doesn’t permit curing deficient expert reports through subsequent deposition testimony. With the accident having occurred over a decade ago and the litigation spanning several years, the Court noted the ample time available for the Plaintiff to disclose an expert report containing Castro’s causation opinions.
In line with the rule’s requirements, the Court outlined that a treating physician who previously provided a causation opinion during treatment (in compliance with specific standards) without submitting a formal report could only testify to the historical fact that such an opinion was part of the treatment. However, the physician couldn’t testify that this remains their current opinion, emphasizing the need for strict compliance with the Federal Rules. Consequently, the Court granted this part of the Motion, precluding Castro from offering causation opinions during the trial.
Nevertheless, the Court acknowledged the existence of a statement in Plaintiff’s medical records that could potentially be construed as a causation opinion formed during treatment by Castro. Thus, while barring Castro from presenting this as a current opinion under oath, the Court allowed Plaintiff to present this fact at trial. Castro could testify solely to the historical aspect that this opinion was part of the treatment, adhering to the Court’s directive.
Given this ruling, the Court instructed the parties to submit proposed instructions for the jury at trial, aiming to clarify in simple terms the distinction drawn by the Court regarding Castro’s testimony about the historical treatment-based opinion versus a current opinion.
The Defendant requested the Court to prevent Anderson-Oeser from testifying about the necessity of a future spinal fusion resulting from the injuries sustained in the accident. In response, the Plaintiff didn’t address the Defendant’s causation arguments regarding Anderson-Oeser, except to assert that the Defendant hadn’t specified which causation opinions it aimed to exclude, focusing solely on the future surgery opinion. Plaintiff did not argue that any failure to properly disclose Anderson-Oeser’s causation opinions was harmless or substantially justified.
The Court deemed Plaintiff’s argument disingenuous, emphasizing that the Defendant’s intention was clear—to exclude Anderson-Oeser’s testimony regarding the accident’s role in necessitating future spinal fusion. Similar to Castro, Anderson-Oeser, a non-retained treating physician who hadn’t submitted an expert report, was the subject of this exclusion request. The Defendant highlighted that Anderson-Oeser endorsed a statement in a letter, prepared for litigation and drafted by Corwin’s office staff, stating, “Cope will likely require a lumbar spine fusion at L5-S1 at some point.” The Defendant contended that Anderson-Oeser aimed to testify regarding the future surgery recommendation outlined in Corwin’s report/letter. However, the Defendant argued that this evidence should be excluded as the recommendation in the letter lacked any opinion regarding whether the accident caused the necessity for this future surgery.
The Plaintiff, however, clarified that Castro’s testimony would focus on the standard of care for third herniations, asserting that the typical practice doesn’t involve a third laminectomy but leans towards spinal fusion. Plaintiff argued that both doctors were qualified to discuss the clinical standards pertaining to the type of surgery and the conditions influencing the decision-making process for surgery, such as pain tolerance and neurological deficits.
Plaintiff contended that there was no obligation to present expert testimony specifically establishing the probability of future surgery to seek damages for such potential procedures. However, Plaintiff failed to acknowledge that neither Castro nor Anderson-Oeser’s medical records contained any prognosis or explicit recommendations for future surgery. Additionally, Plaintiff didn’t address the concerns raised by the Defendant regarding Rule 26 and Rule 37 compliance.
Consequently, the Court granted the Defendant’s motion, barring Anderson-Oeser from presenting any causation opinions and from testifying about the necessity of a spinal fusion resulting from the injuries sustained by the Plaintiff in the accident.
The Court determined that Castro and Anderson-Oeser’s opinions regarding the Plaintiff’s future medical treatment and potential surgery were not derived from their observations, actions, or reasons during their treatment of the Plaintiff. Instead, the Court noted that these opinions seemed to be shaped primarily due to the existence of the lawsuit.
Given that the opinions sought to be introduced through Castro and Anderson-Oeser concerned potential future treatments and associated medical costs, the Court held that Rule 26(a)(2)(B) necessitated an expert report—which neither physician had prepared.
Consequently, the Court precluded Castro from testifying on several points: 1) the assertion regarding the standard of care for third herniations favoring spinal fusion over a third laminectomy; 2) opinions about the Plaintiff’s potential future surgery needs based on factors like pain tolerance and future neurological deficits; and 3) any testimony related to clinical standards governing the type of surgery and factors influencing the Plaintiff’s future decisions about surgery, as proposed through Castro and Anderson-Oeser.
The Defendant had requested the Court to prevent Castro from testifying about the Plaintiff’s pre-accident physical therapy and medical treatments stemming from a 2011 workers’ compensation fall. After deliberation, the Court granted this aspect of the Motion.
The Court noted that Castro commenced treating the Plaintiff on March 21, 2014—four months subsequent to the accident and three years following the Plaintiff’s fall down a flight of stairs. As Castro hadn’t administered the physical therapy or medical treatment associated with the earlier fall, the Court excluded Castro from offering any testimony regarding those pre-accident treatments.
The Defendant had sought to exclude Anderson-Oeser’s opinion predicting the necessity of a future spinal fusion resulting from the injuries sustained in the accident. The Defendant reiterated that this opinion, akin to her causation opinion, was inadmissible due to Plaintiff designating her as a non-retained expert without a formal report under Rule 26. The Defendant emphasized that Anderson-Oeser’s opinion pertained not to her direct treatment but rather to potential future treatment for the Plaintiff, which she wouldn’t perform as she wasn’t a surgeon. Additionally, the Defendant argued that Anderson-Oeser’s qualification as a non-spine surgeon rendered her unqualified to opine on hypothetical future lumbar spinal fusion surgeries.
However, since the Court had previously excluded Anderson-Oeser’s opinions about the Plaintiff’s future spine surgeries and medical treatment, the Court denied this aspect of the Defendant’s Motion as moot.
The Defendant argued that the Plaintiff hadn’t disclosed any retained expert or report addressing the reasonableness of his medical bills. Instead, Plaintiff’s disclosures indicated the intent to rely on testimony from non-retained treating physicians on this matter. However, the Court excluded the opinions of Plaintiff’s non-retained treating physicians concerning the reasonableness and necessity of his medical bills.
The Defendant moved to exclude testimony regarding surgery-related treatments in Aubrey Corwin’s May 2021 life care plan, arguing that Corwin failed to reliably apply her stated methodology in forming opinions about the cost of future surgical treatment and related care.
In response, the Plaintiff acknowledged that introducing expert testimony indicating the need for future surgical care was necessary to seek future surgical costs. However, as the Court had excluded the testimonies of Castro and Anderson-Oeser regarding future surgery, and the Plaintiff hadn’t disclosed any other experts to testify about his future surgical needs, the Court granted the Defendant’s motion. Consequently, the Court excluded Corwin’s opinions regarding future medical expenses for surgical treatment and related care.
The Defendant moved to exclude attorney Bradley Levin’s opinions, contending that they lacked an objective basis and were solely derived from his experience. In response, the Plaintiff highlighted that Levin’s opinions were rooted in ten insurance industry standards outlined in his report, several of which were based on direct language of the Colorado Unfair Competition-Deceptive Claims Practices Act.
After reviewing Levin’s report, the Court acknowledged the Defendant’s contention that Levin could have more precisely linked his opinions to the specific standards purportedly violated by the Defendant. However, the Court noted that Levin explicitly stated in his opinion that the Defendant had contravened relevant portions of Colorado’s Unfair Competition-Deceptive Claims Practices Act. Levin also cited Regulation 5-1-14 promulgated by the Colorado Division of Insurance. The Court concluded that while the Defendant’s arguments might challenge the strength of Levin’s opinions, they did not render his opinions inadmissible. As a result, the Court denied the Defendant’s motion, allowing Levin’s opinions to stand, but stated that the Defendant could address these concerns during cross-examination.
Held
Defendant Auto-Owners Insurance Company’s Omnibus Motion to Exclude Certain Opinions of Dr. Bryan Castro, Dr. Roberta Anderson-Oeser, Aubrey Corwin and Bradley Levin was granted in part and denied in part by the Court.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaway
In a legal dispute over an underinsured motorist (“UIM”) claim, various motions were filed by the Defendant seeking to exclude certain expert testimonies and opinions from the trial. The Defendant aimed to preclude causation opinions from non-retained experts, Dr. Bryan Castro and Dr. Roberta Anderson-Oeser, alleging lack of reliability, improper disclosure, and absence of expert reports. Despite some arguments put forth by the Plaintiff, the Court precluded Castro from providing causation opinions, emphasizing the inadequacy of deposition testimony as a substitute for the required expert report under Rule 26.
The Court highlighted strict adherence to the Federal Rules and barred Castro and Anderson-Oeser from testifying on future surgical needs. This ruling stemmed from their opinions not being formed during treatment but apparently due to the ongoing litigation.
Additionally, the Court excluded discussions on pre-accident medical treatments and future surgical needs as neither expert had prepared an expert report as mandated by Rule 26. Despite the absence of specific expert reports, the Court allowed some opinions rooted in Colorado law from attorney Bradley Levin, indicating that the Defendant breached certain sections of the Colorado Unfair Competition-Deceptive Claims Practices Act.
In a similar vein, Aubrey Corwin’s opinions regarding future medical expenses for surgical treatment were excluded due to the lack of supporting expert testimony after the Court had previously precluded discussions on future surgery from other witnesses.
Overall, the Court enforced strict compliance with expert disclosure rules, precluding opinions lacking proper reports while permitting those supported by established legal standards. The Defendant’s objections and challenges were taken into account, but the Court emphasized the distinction between admissibility and weight of opinions, allowing certain expert testimonies to proceed while offering the opportunity to contest their strength during cross-examination.
