Free Trial Brief - District Court of Arizona - Arizona

1 LAW OFFICES
BROENING OBERG WOODS & WILSON
2 PROFESSIONAL CORPORATION
1122 EAST JEFFERSON
3 POST OFFICE BOX 20527
PHOENIX, ARIZONA 85036
4 (602) 271-7700
James R. Broening, #004036
5 William R. Phillips, #019949
Attomeys for D€I`€Hd3HtS
6
7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE DISTRICT OF ARIZONA
9 JERRY SIMMS, a single man, NO.CIV-03-1415 PHX ROS
10 Plaintiff, DEFENDANT’S SUPPLEMENTAL
11 TRIAL BRIEF RE APPLICATION OF
vs. FRCP 26(a)(2)(B)
12 STATE FARM FIRE AND CASUALTY
13 COMPANY, an Illinois corporation; ABC
CORPORATIONS I-X; JOHN DOES I—X,
14 Defendants.
15
16 Pursuant to instruction by the Court during the Pre-Trial Conference of
17 February 16, 2006, Defendant submits the following authority regarding FRCP
18 26(a)(2)(B).
19 I. TREATING PHYSICIANS, AND ANALOGOUS WITNESSES, ARE
SUBJECT TO RULE 26§a)g2)gB) WHEN OPINIONS ARE NOT
20 FORMED DURING CARE AND TREATMENT
21 In his Response to Defendant’s First Motions in Limine, page 11, Plaintiff
22 cited two cases for the proposition that "even treating doctors are not required to be
23 disclosed under the requirements of Rule 26(a)(2)(B)."l Neither case cited by Plaintiff
24
25 I _ _
Fzsher v. Ford Motor Co., 178 FRD 195, 197 (N.D. Ohio 1998); Mohney v. USA
26
Hockey, Inc., 300 F.Supp.2d 556 (2003).
Case 2:03-cv—O1415—ROS Document 151 Filed O2/24/2006 Page 1 of 3

1 supports this proposition.
2 Certain hybrid witnesses, such as treating physicians, may offer expert
3 opinions without providing an expert report under Rule 26(a)(2)(B). As is the case with
4 treating physicians, such witnesses are typically also witnesses as to factual matters relative
5 to the litigation. Where such testimony is solely and exclusively related to litigation
6 issues, the testimony is excluded absent a rule 26(a)(2)(B) report. Mohney v. USA
7 Hockey, Inc., 138 Fed. Appx. 804, 810-811, 2005 WL 1655023 (6*h Cir. 2005),2 Lamere v.
8 New York State Ojficefor the Aging, 223 F.R.D. 85 (N.D. N.Y. 2004);. Bucher v. Goiney
9 Trcmsp. Serv. oflndiorta, Inc., 167 F.R.D. 387 (D.C. Pa. 1996).
10 Witness Ron McDonald is a stucco contractor who participated in Plaintiff’ s
11 fire repairs. To the extent that expert opinions from Mr. McDonald are based upon his
12 observations in the course of his repair work, such opinions are admissible despite the
13 absence of any expert report. Plaintiff should not, however, be allowed to elicit opinions
14 from Mr. McDonald that relate solely and exclusively to litigation issues.
15 Counsel for Plaintiff has conceded that witness Ron Cope had no relationship
16 to Plaintiff or his residence whatsoever prior to contact by counsel. Plaintiff’ s counsel
17 located Mr. Cope in the course of his investigation into litigation related issues. Since Mr.
18 Cope admittedly has never produced any expert report herein, he may not offer any expert
19 opinions.
20 II. CONCLUSION
21 Expert witnesses utilized solely and exclusively for litigation purposes may
22 not testify absent compliance with Rule 26(a)(2)(B).
23
24 2 The Mohney case discussed at the Pre-Trial Conference was the subsequently
25 affirmed district court opinion found at 300 F.Supp.2d 556 (N.D. Ohio 2004).
26 2
Case 2:03-cv—O1415—ROS Document 151 Filed O2/24/2006 Page 2 of 3

1 DATED this ay of February, 2006.
2 BROEN_ G OBER W OD & WILSON, P.C.
3 , .
4 By
James R. Broening
5 William R. Phillips
1122 East Jefferson
6 Post Office Box 20527
Phoenix, Arizona 85036
7 Attomeys for Defendant State Farm Fire and
Casualty Campany
8
COPY of the foregoing electronically filed
9 this Q Lg day of February, 2006, to:
10 Joseph C. Dolan, Esq.
1650 N. First Avenue
ll Phoenix, Arizona 85003
Attorney for Plaintw
12
14 By L./Lék., L
S \BADFAlT State Fam1\Simms\Pleadings\Supp Trial Bri re FRCP 26(a)(2)(B).wpd
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