Wisconsin district court clarifies the finer nuances of Rule 26

Rule 26The Wisconsin District Court recently passed a judgment in E.E.O.C. v. Aurora Health Care, Inc. where it once again clarified that Civil L.R.26(b)(1)(B) only incorporates Rule 26(a)(2)(B)(i) and not Rule 26(a)(2)(B)(ii).

Background of the case

Plaintiff Equal Employment Opportunity Commission brought this action against Defendant employer Aurora Health Care, Inc. under the Americans with Disabilities Act on September 26, 2012, seeking to correct allegedly unlawful employment practices on the basis of disability and to provide appropriate relief to disabled employees, one of whom, named Kelly Beckwith, was suffering from multiple sclerosis.

What did the medical expert say?

On August 16, 2013, Plaintiff disclosed Dr. Bhupendra Khatri, one of Beckwith’s treating physicians, as a non-retained expert witness. Dr. Khatri was supposed to opine that “multiple sclerosis has impaired Ms. Beckwith’s neurological system,” and that “Beckwith did not need accommodations to perform the registered nurse coordinator position at Aurora.” Plaintiff’s supplemental disclosure further explained that Dr. Khatri’s opinions were “based on his experience treating Kelly Beckwith, his personal knowledge of her neurological condition, his expertise in neurology, and his review of her medical records,” as well as “information provided to him about the [Aurora] position.”

Defendant moved to bar the expert’s testimony pursuant to Civil L.R. 7(h) and argued that it was “entitled to know the specific medical records supporting Dr. Khatri’s opinion.”

What does the law say?

Civil L.R. 26(b)(1)(B) says: A person, including a treating physician, who has not been retained or specially employed to provide expert testimony, or whose duties as the party’s employee do not regularly involve giving expert testimony, may be used to present evidence under Fed.R.Evid. 702, 703 or 704 only if the party offering the evidence discloses to every other party the information identified in Fed.R.Civ.P. 26(a)(2)(B)(i), although a report written and signed by the witness is not required.

In turn, Federal Rule of Civil Procedure 26(a)(2)(B)(i) requires a report containing “a complete statement of all opinions the witness will express and the basis and reasons for them.”

What did the Court say?

The Court did not agree with the Defendant’s line of logic and held that

As previously explained, Civil L.R. 26(b)(1)(B) only incorporates Rule 26(a)(2)(B)(i), not Rule 26(a)(2)(B)(ii); and only the latter requires disclosure of “the facts or data considered by the witness in forming [his opinions].” Moreover, as the EEOC points out, the cases cited by Aurora involve retained experts and therefore do not persuade the court that exclusion is proper here. See, e.g., Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir.1998) (affirming district court’s decision to exclude retained expert’s testimony for noncompliant Rule 26 report); see also Schmude v. Tricam Indus., Inc., 550 F.Supp.2d 846, 854 (E.D.Wis.2008) (refusing to exclude retained expert’s testimony for failure to include specific information in Rule 26 report), aff’d, 556 F.3d 624 (7th Cir.2009).

Defendant’s Civil L.R. 7(h) motion to bar Plaintiff’s expert testimony was therefore denied.

**Written for the web by the EWG Editorial Team

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