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Jones v. Colorado Casualty Insurance Co.

United States District Court, D. Arizona

October 19, 2015

Anthony H. Jones, Plaintiff,
v.
Colorado Casualty Insurance Company, et al., Defendants.

ORDER

JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.

Pending before the Court is Defendant Colorado Casualty Insurance Company (“Colorado Casualty”)’s Motion in Limine No. 4 for an Order Precluding or Limiting the Testimony of Dr. Dewanjee and Request for Rule 104(a) Hearing. (Doc. 147). Plaintiff filed a response (Doc. 166) and a supplement to his response (Doc. 185). The Court now rules on the motion.

I. Background

Colorado Casualty’s motion questions the adequacy of Plaintiff’s three attempted disclosures of his treating physician, Dr. Sumit Dewanjee. Plaintiff first disclosed Dr. Dewanjee in his Initial Disclosure Statement on November 30, 2012. (Doc. 185-2). In this disclosure, Dr. Dewanjee was described as: “Healthcare professionals who have knowledge regarding the facts and circumstances surrounding the happening, incident and/or occurrence made the basis of this suit.” (Id. at 7, 9).

About one year later, Plaintiff provided Colorado Casualty with his “Second Supplemental Rule 26.1(a) Disclosure Statement” on November 4, 2013. (Doc. 185-1). In this disclosure, Plaintiff entitled Dr. Dewanjee as a “Non-Retained Physician Expert Witness” and described him as follows:

It is anticipated that as the treating physician for Mr. Jones, Dr. Dewanjee will offer testimony as to the impact of the delay in care caused by the misconduct of Defendants and regarding the reasonableness of the denial of Defendants. Dr. Dewanjee will testify that Mr. Jones suffered a left shoulder injury due to his work place injury. Dr. Dewanjee is expected to testify that there was no medical basis for Defendants to deny that Mr. Jones suffered a serious work place injury or to deny that Mr. Jones needed to be off work to be treated for this injury. Dr. Dewanjee will further testify that Defendant’s denial was unreasonable and unwarranted based upon his medical opinion and reports. Dr. Dewanjee is expected to be able to testify, with reasonable medical certainty, that as well documented in the medical literature and his experience, Mr. Jones experienced significant physical injury, impairment, pain, emotional distress, deconditioning and other physical and financial damages as a result of the delays in treatment and immobility with consequences on his rehabilitation and recovery. Due to this delay Mr. Jones endured severe pain and was not able to function, so final prognosis is uncertain at this time. Dr. Dewanjee will offer testimony regarding this physical pain and emotional distress suffered by Mr. Jones as a result of the denial and delay of treatment.

(Id. at 3).[1]

Finally, Plaintiff provided Colorado Casualty with a third supplemental disclosure statement on December 18, 2013. (Doc. 147-1).[2] In this third disclosure, which substantially mimicked his second disclosure, Plaintiff disclosed Dr. Dewanjee as follows:

The treating physician for Mr. Jones, Dr. Dewanjee will offer testimony (and already has in his deposition) as to the impact of the delay in care caused by the misconduct of Defendants and regarding the reasonableness of the denial of Defendants. Dr. Dewanjee will testify (and already has in his deposition) that Mr. Jones suffered a left shoulder injury due to his work place injury. Dr. Dewanjee is expected to testify (and already has in his deposition) that there was no medical basis for Defendants to deny that Mr. Jones suffered a serious work place injury or to deny that Mr. Jones needed to be off work to be treated for this injury. Dr. Dewanjee will further testify (and already has in his deposition) that Defendant’s denial was unreasonable and unwarranted based upon his medical opinion and reports. Dr. Dewanjee is expected to be able to testify (and already has in his deposition), with reasonable medical certainty, that as well documented in the medical literature and his experience, Mr. Jones experienced significant physical injury, impairment, pain, emotional distress, deconditioning and other physical and financial damages as a result of the delays in treatment and immobility with consequences on his rehabilitation and recovery. Due to this delay Mr. Jones endured severe pain and was not able to function, so final prognosis is uncertain at this time. Dr. Dewanjee will offer testimony (and already has in his deposition) regarding this physical pain and emotional distress suffered by Mr. Jones as a result of the denial and delay of treatment. Plaintiff also would refer to the deposition of Dr. Dewanjee as to the expert opinions already offered.

(Doc. 147-1 at 24-25).

Two days after Plaintiff provided Colorado Casualty with his third disclosure statement, all expert disclosures were due pursuant to the Court’s Rule 16 Scheduling Order. (Doc. 35 at 2). On January 17, 2014, all responsive expert disclosures were due pursuant to the Court’s Rule 16 Scheduling Order. (Id.) On February 14, 2014, all rebuttal expert disclosures were due pursuant to the Court’s Rule 16 Scheduling Order. (Id.) Finally, all discovery was to be completed by April 11, 2014 pursuant to the Court’s Rule 16 Scheduling Order. (Id.)

II. Legal Standard

Treating physicians need not provide a “written report” under Federal Rule of Civil Procedure (“Rule”) 26 to the extent that their opinions are formed during the course of treatment. Goodman v. Staples the Office Superstore LLC, 644 F.3d 817, 826 (9th Cir. 2011). Nonetheless, if a treating physician is to testify as an expert, as opposed to a fact witness, he or she must be disclosed pursuant to Rule 26(a)(2)(C). This rule provides:

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a ...

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