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Crimmins v. United States

United States District Court, D. South Carolina, Charleston Division

August 9, 2019

DAVID CRIMMINS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         The 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.

         I. BACKGROUND

         The 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.

         Crimmins 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.[1] 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.

         II. DISCUSSION

         The 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”[2] 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 experts.[3]

         In 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.

         There 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.

         A. Whether Dr. Highsmith is a Treating Physician

         With 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 contain:
(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 them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in ...

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