Gonzalez v. Executive Airlines, Inc.

236 F.R.D. 73, 2006 U.S. Dist. LEXIS 15263, 2006 WL 833134
CourtDistrict Court, D. Puerto Rico
DecidedMarch 8, 2006
DocketNo. 04-2256 (JP)
StatusPublished
Cited by11 cases

This text of 236 F.R.D. 73 (Gonzalez v. Executive Airlines, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gonzalez v. Executive Airlines, Inc., 236 F.R.D. 73, 2006 U.S. Dist. LEXIS 15263, 2006 WL 833134 (prd 2006).

Opinion

OPINION AND ORDER

PIERAS, Senior District Judge.

I. INTRODUCTION

Before the Court is the Defendant’s motion in limine to strike a letter written by psychiatrist Dr. Edmundo Rivera, who is called as a witness in this case in his capacity as the Plaintiffs treating physician, and to compel Dr. Rivera to produce an expert report as per Rule 26 of the Federal Rules of Civil Procedure. The Defendant contends that the letter, which accompanies the Plaintiffs medical records from the Orlando clinic where she was treated, is an attempt by the Plaintiff to introduce an expert report while skirting the requirements for the use of expert testimony stated in Rule 26 of the Federal Rules of Civil Procedure.

The facts leading to this conundrum are as follows: On May 9, 2004, American Eagle flight 5401, on which Plaintiff Martha Gonzá-lez was a passenger, made a hard landing at San Juan’s Luis Muñoz Marín International Airport, causing severe damage to the airplane. Plaintiff González is suing Defendant Executive Airlines, Inc., claiming that, due to the trauma she experienced during said hard landing, she has been suffering from the effects of Post-Traumatic Stress Disorder (“PTSD”).

Plaintiff González does not intend to present an expert witness as part of her case. Instead, she intends to rely on the testimony [75]*75of Dr. Edmundo Rivera, her treating psychiatrist. As part of the discovery process in this matter, Plaintiff submitted a report filed by Dr. Rivera on his treatment of the Plaintiff. Counsel for the Defendant objected to the report, arguing that Dr. Rivera should be treated as an expert witness and therefore made to file a report compliant with the expert witness requirements set forth by Rule 26 of the Federal Rules of Civil Procedure. For the following reasons, the Court hereby DENIES Defendant’s oral motion to compel Dr. Edmundo Rivera to file an expert report pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. However, the Court will accept as proposed evidence the Plaintiffs medical record from the clinic, but STRIKES Dr. Rivera’s report from the record, because the Court finds is not a part of the record of treatment of the Plaintiff and rather a document prepared for the purposes of this litigation.

II. ANALYSIS

A. LEGAL STANDARD

Subdivision (a) of Federal Rule of Civil Procedure 26 was added to Rule 26 in 1993 in order to “accelerate the exchange of basic information about the case and to eliminate the paper work involved in requesting such information, and the rule should be applied in a manner to achieve those objectives.” Fed. R.Civ.P. 26(a) Advisory Committee’s note to the 1993 amendments. Specifically, the Advisory Committee’s notes state that subdivision (a)(2) “imposes an additional duty to disclose information regarding expert testimony sufficiently in advance of trial that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses.” Fed.R.Civ.P. 26(a)(2) Advisory Committee’s note to the 1993 amendments. Rule 26 places on litigants an affirmative duty to furnish, in advance of trial, the name of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses and to identify the subjects of the information. Fed.R.Civ.P. 26(a)(1)(A). The rule also establishes more stringent requirements in the case of witnesses that are presented for the purpose of offering expert testimony. In addition to the requirements set forth in 26(a)(1)(A), Rule 26 requires the disclosure of the identity of “any person who may be used at trial to present evidence under Rules 702, 703, and 705 of the Federal Rules of Evidence the disclosure of a witness,” Fed.R.Civ.P. 26(a)(2)(A), and requires that the disclosure of a witness who is retained or specially employed to provide expert testimony in the case be accompanied by a written report prepared and signed by the witness. Fed.R.Civ.P. 26(a)(2)(B). This provision was added to Rule 26 because “the information disclosed under the former rule in answering interrogatories about the ‘substance’ of expert testimony was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was of little help in preparing for a deposition of the witness.” Fed.R.Civ.P. 26(a)(2)(B) Advisory Committee’s note to the 1993 amendments.

To further the goal of helping the parties to more efficiently prepare for trial, the written report required by Rule 26(a)(2)(B) must contain a complete statement of all opinions to be expressed and the basis and reasons therefor, the data or other information considered by the witness in forming the opinions, any exhibits to be used as a summary of or support for the opinions, the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years, the compensation to be paid for the study and testimony, and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. Fed.R.Civ.P. 26(a)(2)(B).

B. INTERPRETATION OF THE LAW BY THE COURTS

As the United States Court of Appeals for the First Circuit has held,

Rule 26 uses the term expert “to refer to those persons who will testify under Rule 702 of the Federal Rules of Evidence with respect to scientific, technical, and other specialized matters.” Fed.R.Civ.P. 26(a)(2) Advisory Committee’s note to the 1993 amendments. That definition does [76]*76not encompass a percipient witness who happens to be an expert.

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236 F.R.D. 73, 2006 U.S. Dist. LEXIS 15263, 2006 WL 833134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-executive-airlines-inc-prd-2006.