United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE
following matter is before the court on defendant United
States of America's (“the government”) motion
in limine, ECF No. 46. For the reasons set forth below, the
court denies the motion.
facts of this case are straight forward. On January 16, 2016,
plaintiff David Crimmins's (“Crimmins”)
Toyota Pickup was hit by a U.S. Postal Service mail-delivery
truck on Ben Sawyer Boulevard. Crimmins sustained injuries to
his spine and filed a negligence action against the
government as a result.
filed his complaint on December 22, 2017, and the case is set
for a bench trial to begin on Monday, August 26, 2019. On
July 19, 2019, the government filed a motion in limine
seeking an order prohibiting Dr. Jason Highsmith (“Dr.
Highsmith”), Lindsay Moore (“Moore”), and
Tricia Yount (“Yount”) from testifying at trial
about Crimmins's alleged permanent medical impairments,
future medical treatment recommendations, and costs
associated with any recommended future medical treatments.
According to Crimmins, Dr. Highsmith is his treating
neurosurgeon who will provide his opinion on Crimmins's
future medical treatment recommendations. Moore is a
retained expert hired to testify about Crimmins's future
medical costs and expenses, and Yount is a retained expert
hired to testify about the present-day economic value of
Moore's findings. Crimmins filed a response on August 2,
2019, ECF No. 50, and the government replied on August 5,
2019, ECF No. 53. The court held a hearing on the motion on
August 8, 2019.
government initially sought to exclude the testimony of Dr.
Highsmith, Moore, and Yount based on the alleged late
disclosure of Dr. Highsmith's expert report; however, at
the hearing on the motion, the government clarified that it
is only seeking to exclude the testimony of Dr. Highsmith.
The government explains that Crimmins's expert reports
were due by February 25, 2019, and that Crimmins sent Dr.
Highsmith's “report” to the government for the
first time on July 10, 2019. The government contends that
“[w]ithout hesitation, the United States represents to
the Court that the lack of depositions and naming of experts
is directly tied to having never received this document [the
report], ” ECF No. 46 at 4, and that it is both
surprised and prejudiced by the late disclosure of Dr.
Highsmith's opinions. The government alternatively
requests that the court reopen discovery for both liability
and damages and to permit the government to name
response, Crimmins argues that: (1) Dr. Highsmith is not a
expert specifically obtained for purposes of litigation but
instead is a treating physician who is not required to submit
an expert report; (2) the “report” that Crimmins
sent to the government is actually correspondence that Dr.
Highsmith sent to Moore for Moore to use while creating her
expert report, which is a Life Care Plan, and Crimmins
recently sent the document to the government solely as a
courtesy and to encourage settlement; (3) the government
already had Dr. Highsmith's future medical treatment
opinions because they were produced medical records in
December 2018 and again in January 2019 in Moore's Life
Care Plan, so there is no surprise or prejudice; and (4)
Crimmins's counsel told the government multiple times
that Dr. Highsmith would not be producing an expert report
because Dr. Highsmith was not a retained expert. Crimmins
also notes that he offered the government the opportunity to
depose Dr. Highsmith prior to trial, and that Dr. Highsmith
does not plan to testify about any cost estimates that are
contained in his report. Additionally, Crimmins argues that
the government did not conduct any meaningful discovery in
this case, as it conducted no depositions and served only one
set of interrogatories and requests for production, and that
“[t]he real purpose” of this motion in limine is
for the government “to re-argue its failed motion to
extend the scheduling order so that it can designate expert
witnesses.” ECF No. 50 at 3.
are two issues here that the court must address. The first is
whether Dr. Highsmith is a treating physician or an expert
specifically retained for the purposes of litigation. The
second is whether the late disclosure of the evidence
contained in the report may be excused. The court finds that
Dr. Highsmith is a treating physician who was not required to
produce an expert report, and that the report's late
disclosure is excused.
Whether Dr. Highsmith is a Treating Physician
regard to expert reports, Rule 26 of the Federal Rules of
Civil Procedure provides:
(B) Witnesses Who Must Provide a Written Report. Unless
otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report--prepared and signed
by the witness--if the witness is one retained or
specially employed to provide expert testimony in the
case or one whose duties as the party's employee
regularly involve giving expert testimony. The report must
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in ...