Crick v. Globe, City of

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 April Carrie Crick, et al., No. CV-21-00978-PHX-JAT

10 Plaintiffs, ORDER

11 v.

12 City of Globe, et al.,

13 Defendants. 14 15 I. Exhibit Issues 16 The final pretrial conference in this action is scheduled for Wednesday, May 8, 17 2024, starting at 10:00 AM. However, the parties have previously indicated a significant 18 struggle to mark and list exhibits consistently and/or in a manner that satisfies all parties 19 (among other struggles with cooperation), such that this Court has been forced to 20 participate extensively in the process. (Docs. 94, 95, 98, 100, 101, 104, 107. 109, 110, 116, 21 120, 122, 129). With this in mind, the Court orders the parties to appear one hour earlier 22 on the date of the final pretrial conference with their exhibits marked and numbered as they 23 must be for trial. The Court directs the parties’ attention to its Order at Doc. 90, Attachment 24 #2, for detailed instructions concerning marking their exhibits. The Court acknowledges 25 that Attachment 2 to Doc. 90 contemplates exhibit delivery on the day of trial or the day 26 before trial and not at the final pretrial conference. (Doc. 90 at 8). However, given the 27 circumstances, the Court requires the parties to deliver marked exhibits and exhibit lists 28 compliant with the requirements set forth in Attachment 2 on the date of the final pretrial 1 conference. 2 II. Expert Disclosure Issues 3 The Court makes no ruling on the expert disclosure issues at this time; however, in 4 the interest of streamlining the discussion at the final pretrial conference, the Court 5 provides the following applicable legal standard. In Goodman v. Staples The Office 6 Superstore, LLC, the Ninth Circuit Court of Appeals (“Ninth Circuit”) held the following. 7 “Today we join those circuits that have addressed the issue [of whether treating physicians 8 must provide expert reports] and hold that a treating physician is only exempt from Rule 9 26(a)(2)(B)’s written report requirement to the extent that his opinions were formed during 10 the course of treatment.” 644 F.3d 817, 826 (9th Cir. 2011). 11 Accordingly, Goodman addresses whether a treating physician must supply an 12 expert report, not necessarily whether other pertinent expert disclosures are required. The 13 decision merely clarifies when the expert treating physician does or does not need to 14 provide a written report pursuant to Federal Rule of Civil Procedure (“FRCP”) 26(a)(2)(B). 15 A later Ninth Circuit decision has since clarified this issue. See Merchant v. Corizon 16 Health, Inc., 993 F.3d 733, 739–40 (9th Cir. 2021) (“A treating physician who is expected 17 to testify regarding opinions ‘formed during the course of treatment’ need not submit a 18 detailed expert report. Nonetheless, disclosures of non-retained, treating physicians must 19 include ‘(i) the subject matter on which the witness is expected to present evidence under 20 Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to 21 which the witness is expected to testify.’”) (citations omitted). 22 Thus, even when a treating physician is not required to provide a written report 23 pursuant to FRCP 26(a)(2)(B), a treating physician is subject to expert disclosure 24 requirements pursuant to FRCP 26(a)(2)(C), to the extent that the treating physician 25 provides expert opinions rather than providing testimony that a lay witness would be able 26 to provide.1

27 1 See O’Daniel v. Arizona Hay and Feed LLC, No. CV-20-02224-PHX-ESW, 2022 WL 1443764, at *4 (D. Ariz. May 6, 2022) (“The Court does not rule at this time on whether 28 the non-retained experts may testify as fact witnesses. See Krause v. Hawaiian Airlines, Inc., No. 2:18-CV-00928 JAM AC, 2019 WL 2598770, at *6 (E.D. Cal. June 25, 2019) 1 II. CONCLUSION 2 Accordingly, 3 IT IS ORDERED that the parties shall appear for the final pretrial conference on 4|| Wednesday, May 8, 2024, at 9:00 AM. 5 IT IS FURTHER ORDERED that the parties shall deliver marked exhibits and 6 || exhibit lists as required herein on Wednesday, May 8, 2024, at 9:00 AM. This Order || supersedes any previous Order requiring such delivery on any other day. 8 IT IS FURTHER ORDERED that Defendants’ Motion, (Doc. 116), is DENIED || without prejudice as to the expert disclosure issues to raise these issues for resolution at 10 || the final pretrial conference. 11 IT IS FINALLY ORDERED that Plaintiffs’ counsel shall come to the final pretrial || conference prepared to address each of Defendants’ objections to the four witnesses 13 || Defendants discuss in (Doc. 129), including the following: the first document in which each witness was disclosed (if any), subsequent disclosures providing additional 15} information about the witness (if any), and evidence showing that each witness formed 16 || their opinion(s) during the course of treatment (if any). 17 Dated this 30th day of April, 2024. 18 19 20 James A. Teilborg 21 Senior United States District Judge 22 23 24 25 (explaining that “the witnesses precluded from offering expert testimony may, of course, testify as fact witnesses to the extent permitted by the trial judge”); Titus v. Golden Rule Ins. Co., No. CV-12-00316-PHX-ROS, 2014 WL 11515698, at *3 (D. Ariz. Apr. 4, 2014) (holding that a treating physician who was not properly disclosed as a Rule 26(a)(2)(C) 27 expert could testify about his treatment “to the same extent any lay witness would be able to describe that treatment,” but that he could not describe why he undertook particular 28 treatments “if, as is likely, explaining ‘why’ would require [him] to offer an impression based on his specialized knowledge and skill.” )”). -3-