Federal District Court Rules that Injured Plaintiffs Treating Physician Was Not a Retained Expert and Did Not Have to Comply With Rule 26(a)(2)

During the discovery process in the case of Toni M. Morrison’s personal-injury lawsuit against Walmart, the company argued that she had to provide a written report from her treating physician, Dr. Daniel Mulconrey, under Federal Rule of Civil Procedure 26(a)(2)(B). The court stated that the report was required because Morrison intended to ask the doctor for expert testimony about three operations performed by other doctors, in addition to testifying about the medical treatment that he did provide.

Walmart’s motion to compel relied on the case of Meyers v. National Railroad Passenger Corp., 619 F.3d 729 (7th Cir. 2010), which held that “a treating physician who has offered to provide expert testimony as to the cause of the plaintiff’s injury, but who did not make that determination in the course of providing treatment, should be deemed to be one ‘retained or especially employed to provide expert testimony in the case,’ and thus is required to submit an expert report in accordance with Rule 26(a)(2).”

The magistrate judge in the federal court in the Central District of Illinois, Magistrate Judge Jonathan E. Hawley, explained that under “the plain language” of Rule 26(a)(2) – as amended a few months after the 7th Circuit decided Meyers – “Dr. Mulconrey is not a retained expert and does not have to comply with the reporting requirements of [S]ubsection (a)(2)(B).”

Rule 26(a)(2) governs the disclosure of expert witnesses. In this case, Walmart’s motion to compel cites cases that predate the 2010 amendment to Rule 26, which changed [S]ubsection (C) to address the disclosure requirements for non-retained experts. As the Advisory Committee Note to the 2010 amendment demonstrates, the [S]ubsection (C) disclosure requirements were added to “resolve a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement.”

Walmart’s motion was denied, but Morrison must provide Wal-Mart with the disclosures required by Rule 26(a)(2)(C), to wit: the subject matter of which Dr. Mulconrey is expected to present evidence under Federal Rule of Evidence 702, 703 or 705; and the summary of the facts in to which he is expected to testify. That was the decision of the district court in this case.

Morrison v. Walmart Stores, 1:15-cv-01232 (C.D. Ill. June 30, 2017).

Kreisman Law Offices has been handling premises liability lawsuits, medical malpractice cases and birth trauma injury cases for individuals, families and the loved ones who have been injured, harmed or killed by the negligence of another for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Winnetka, Gurnee, Grayslake, Highland Park, Highwood, Homewood, Flossmoor, Wheeling, Buffalo Grove, Bolingbrook, Romeoville, Deerfield, Glencoe, Northbrook, Chicago (Rogers Park, Roscoe Village, Sauganash, Hyde Park, Humboldt Park, Garfield Ridge, Diversey Harbor, East Garfield Park, Printer’s Row, Old Town, Lincoln Park, Morgan Park, Archer Heights), Lake Forest, Kenilworth, Oak Park and Park Ridge, Ill.