A federal court in Georgia recently heard a motion to exclude an expert in a premise liability personal injury case involving slippery floors at a Wal-Mart. After reviewing the federal rules, the court allowed the medical expert to testify in the case.
A shopper was injured when she slipped and fell in December 2016 at a Wal-Mart Supercenter. The Plaintiff alleged that Wal-Mart was negligent in failing to inspect, maintain, and clean its floors, to discover hazardous conditions—specifically a wet floor—and to warn its customers of the hazard.
As part of Wal-Mart’s defense, it planned to rely on the testimony of an expert witness, Dr. John P. George of Savannah. Dr. George is an orthopedic surgeon who has been in private practice for 31 years after attending the University of Georgia Medical School. His expert opinion was that the Plaintiff’s injuries were degenerative in nature and not caused by the fall at Wal-Mart.
The Plaintiff sought to exclude the expert due to defects in Wal-Mart ‘s Rule 26 disclosures, specifically the Plaintiff argued that Dr. George’s report was conclusory and didn’t provide any reasoning or basis for his opinions. In addition, his report didn’t contain a list of cases in which he provided expert testimony.
Dr. George’s Expert Opinion
Plaintiff argues Dr. George’s opinion “does not go into any detail at all” about how he came to his conclusions, and that the expert reached his conclusions without providing any valid reasoning or basis for those conclusions. Because of this, Plaintiff argued that Dr. George’s report failed to comply with the requirements of Federal Rule of Civil Procedure 26(a)(2)(B). As such, his report should be excluded from testifying at trial. Wal-Mart opposes Plaintiff’s motion to exclude Dr. George’s expert testimony, arguing that he was qualified to offer testimony and sufficiently explained the basis for his opinions and how he reached his conclusions.
U.S. Magistrate Judge Benjamin W. Cheesbro wrote in his opinion that pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), an expert witness report must contain:
- a complete statement of all opinions the witness will express and the basis and reasons for them;
- the facts or data considered by the witness in forming them;
- any exhibits that will be used to summarize or support them;
- the witness’s qualifications, including a list of all publications authored in the previous 10 years;
- a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and
- a statement of the compensation to be paid for the study and testimony in the case.
Judge Cheesbro reviewed Dr. George’s report and found that the Plaintiff’s objections were without merit. The judge said that the expert’s report provided the basis and reasoning for his opinions, as required by the Federal Rules.
Dr. George explained that his opinions were based on reviewing the Plaintiff’s medical records, including office visits, MRIs, and transportation notes on the date of the fall, as well as emergency room records. Contrary to the Plaintiff’s assertions, he provided a basis for his opinions in the form of the Plaintiff’s own medical records. Also, the Plaintiff complained that Dr. George’s opinions were unsupported, but Judge Cheesbro said in the doctor’s report, he explained each document he reviewed and the conclusions he drew from it. Finally, the Plaintiff said Dr. George’s opinion that her conditions were pre-existing was an unsupported, conclusory statement. But the judge found that the doctor described the results of MRIs he reviewed, indicating cervical stenosis, and this led to his conclusion Plaintiff’s condition was congenital.
Experts Must Provide a List of Cases in Which They’ve Participated as an Expert
The Federal Rule also requires an expert to supply a list of all other cases in which he’s testified as an expert at trial or by deposition in the last four years, which Wal-Mart failed to provide. This type of information is important to attorneys preparing for the deposition or cross-examination of an expert.
Plaintiff stated Wal-Mart ‘s Rule 26 disclosure promised to provide the required disclosure as soon as they received it, Wal-Mart still hadn’t provided the list of cases in which Dr. George has testified as an expert witness. Wal-Mart admitted that they hadn’t yet provided Plaintiff with the list. However, they claimed that they’d yet to do so because Wal-Mart itself hadn’t received the list. in addition, Wal-Mart said that Dr. George hadn’t been deposed at the time of the briefing, and the list in question would be provided well in advance of his deposition. Wal-Mart argued because its expert had not yet been deposed, its failure to provide a list of cases in which he previously testified was harmless.
Judge Cheesbro found that Wal-Mart clearly failed to comply with Federal Rule of Civil Procedure 26(a)(2)(B). However, the judge noted that determining that a party violated Rule 26 is only half the inquiry. The other half, the judge said, is Rule 37(c)(1), which operates as an enforcement mechanism for Rule 26(a)(2). That rule states when “a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” In addition to or instead of this sanction, the court may impose other appropriate sanctions. The burden of establishing that a failure to disclose was substantially justified or harmless belongs to the non-disclosing party.
The Court Decides If the Rule Violation was Harmless
Wal-Mart didn’t contend its untimely compliance with Rule 26(a)(2) was substantially justified, but rather, said any non-compliance was harmless.
Judge Cheesbro opined that district courts have broad discretion to determine whether a violation of Rule 26(a)(2) is harmless. In making this determination, a district court should be guided by the following factors:
- the surprise to the party against whom the evidence would be offered;
- the ability of that party to cure the surprise;
- the extent to which allowing the evidence would disrupt the trial; and
- the importance of the evidence.
First, Judge Cheesbro said that the surprise to Plaintiff was marginal. The judge said this isn’t a case of complete failure to provide information about an expert witness. Wal-Mart has timely identified Dr. George as its expert witness during discovery, and Plaintiff had access to Dr. George’s report. His report sufficiently explained his expert opinions, their bases, and the facts and data upon which he relied. The judge said that the only defect the Plaintiff successfully identified was Wal-Mart ‘s failure to timely provide a list of cases in which Dr. George previously testified as an expert. However, the judge found no material surprise or harm. The doctor’s report contained meaningful analysis that the Plaintiff could have utilized in preparing to depose Dr. George.
“The underlying purpose of Rule 26(a) disclosures is to permit opposing counsel the opportunity to adequately prepare for deposition or cross-examination and ensure there will be no unfair surprise. Dr. George’s expert report reasonably serves this underlying purpose,” the judge wrote.
In examining the second factor, the ability of the party against whom the expert evidence would be offered to cure the surprise, Judge Cheesbro held that because Dr. George had yet to be deposed at the time of the briefing, the Plaintiff was able to cure the surprise by requesting supplemental expert information and then deposing the expert. Thus, the second factor weighed against exclusion of Dr. George, and instead, required Wal-Mart to supplement its report with his case list, as required by he Federal Rules.
The third factor, the extent to which the expert testimony would disrupt the trial, Judge Cheesbro found there would be no disruption at all because the case hadn’t yet been placed on the trial calendar, and no trial was imminent. If Wal-Mart provided the information required under Rule 26(a)(2)(B), there was ample time to allow the Plaintiff to prepare for and depose Dr. George without greatly disrupting the efficiency of the litigation. As such, the third factor weighed against exclusion of the expert.
Finally, Judge Cheesbro said that Dr. George’s testimony was important to this case. Plaintiff alleged her back injuries were a result of her fall at Wal-Mart. However, Dr. George’s testimony directly contradicts Plaintiff’s assertion. Instead, Dr. George provided expert testimony that the Plaintiff’s injuries were the result of a congenital defect, rather than her fall. Because the doctor’s testimony was crucial to Wal-Mart ‘s defense, this factor also weighed against excluding Dr, George.
Judge Cheesbro found that Wal-Mart’s partial non-compliance with Rule 26 caused no discernible harm to the Plaintiff. The Plaintiff shouldn’t have been surprised because Wal-Mart identified Dr. George as its expert during discovery, and his expert affidavit sufficiently explained his opinions, their bases, and the facts on which he relied. Next, because he was yet to be disposed, there was still time for Wal-Mart to supplement its expert report and provide a list of cases in which Dr. George has been an expert witness. The judge found that this would be a more appropriate cure to any prejudice Plaintiff allegedly suffered instead of excluding the expert from testifying.
In summary, Wal-Mart’s partial non-compliance the rule was harmless and, therefore, didn’t warrant exclusion of the doctor under Rule 37(c)(1). As a result, Judge Cheesbro denied the Plaintiff’s Motion to Exclude Testimony of Dr. George. However, the judge acknowledged Wal-Mart ‘s failure to provide a list of the cases where the doctor was an expert witness and ordered Wal-Mart to provide the list within 10 days. Walker v. Travelers Cas. & Sur. Co. 2021 U.S. Dist. LEXIS 93910 (S.D. Ga. April 2, 2021).
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