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Univ. of South Carolina School of Law

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Tuesday, April 27, 2010

Ace In The Hole: Seventh Circuit Deems Neurologist's Testimony Properly Excluded Based Upon Late Disclosure

Under Federal Rule of Civil Procedure 26(a)(1)(A)(i),

Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

Moreover, Federal Rule of Civil Procedure 26(a)(2)requires the proponent of expert testimony to disclose the witness' identity, along with a written report that contains, among other things, a “complete statement of all opinions the witness will express and the basis and reasons for them." And, as the recent opinion of the Seventh Circuit in Happel v. Walmart Stores, Inc., 2010 WL 1529010 (7th Cir. 2010), makes clear, the sanction for noncompliance with this latter rule is typically automatic and mandatory exclusion of the expert's testimony.

In Happel

Heidi Happel was diagnosed with Multiple Sclerosis in 1990. After the diagnosis, she did not experience any symptoms of the disease until August 1993, when a Walmart pharmacy negligently filled-and Heidi ingested-a prescription with Toradol, a medication to which Heidi was allergic. Heidi believed that the medication, which triggered a severe reaction, was the impetus for a rapid decline in her health, so she and her husband, Kent, sued Walmart. After an eight-day trial, a jury awarded the Happels $465,400 in compensatory damages. But the plaintiffs argue[d]...that the...trial court should have allowed them to present expert witness testimony to demonstrate that the allergic reaction to the prescription drugs exacerbated Heidi's condition.

One of these experts was Dr. Peter Bringewald, a neurologist specializing in optic neurology

Before trial, the Happels filed initial and amended disclosures pursuant to Federal Rule of Civil Procedure 26. In both disclosures, they listed Dr. Bringewald under subsection (a)(1) as a person with discoverable information, but did not disclose him as an expert or tender his expert report which is required by subsection (a)(2). Less than two months before trial, the Happels attempted to list Dr. Bringewald as an expert witness in their pre-trial order, seeking to elicit testimony that psychological stress from the Toradol incident exacerbated Heidi's MS. Walmart filed a motion in limine to exclude Dr. Bringewald's proffered expert testimony, arguing that he had not been properly disclosed....The district court granted Walmart's motion, stating that "[p]laintiffs' attempt to elevate their treating doctors' status by listing them as experts in the pre-trial motion, without rendering the required expert reports to defendant, fails as an attempt to subvert the requirements of Rule 26(a)(2)(B)." 

Upon the Happels' appeal, the Seventh Circuit agreed with this conclusion, finding that

plaintiffs' failure to disclose him as an expert witness during pre-trial discovery. Rule 26(a)(2) of the Federal Rules of Civil Procedure requires the proponent of expert testimony to disclose the witness's identity, along with a written report that contains, among other things, a "complete statement of all opinions the witness will express and the basis and reasons for them." The sanction for failure to comply with this rule is the "automatic and mandatory" exclusion from trial of the omitted evidence, “unless non-disclosure was justified or harmless."...The Happels do not challenge this ruling; they did not even mention it in their opening brief....So we cannot find that the district court abused its discretion in excluding Dr. Bringewald's opinion testimony.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/04/702-wal-marthappel-v-walmart-stores-inc----f3d------2010-wl-1529010ca7-ill2010.html

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