The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
MAGGIE FRYER CIVIL ACTION NO. 22-962
VERSUS JUDGE S. MAURICE HICKS, JR.
TECHE ACTION BOARD, INC. MAGISTRATE JUDGE WHITEHURST
A.K.A. TECHE ACTION CLINIC
MEMORANDUM RULING
Before the Court is Defendant Teche Action Board, Inc.’s (“TAC”) Motion in Limine
(Record Document 41) to exclude testimony of Dr. Alan Taylor (“Dr. Taylor”) and Dr.
Donald Gervais (“Dr. Gervais”), purported expert witnesses of Plaintiff, Maggie Fryer
(“Fryer”). Fryer filed an opposition to this motion. See Record Document 49. TAC replied.
See Record Document 58. For the reasons set forth below, the Motion in Limine is
GRANTED IN PART AND DENIED IN PART.
FACTUAL AND PROCEDURAL BACKGROUND
The present suit arises out of an employment relationship between Fryer and TAC
that terminated on January 19, 2022. The remaining claims in this case include a Race
Retaliation Claim under Title VII of the Civil Rights Act and 18 U.S.C. Section 1981, claims
under the Americans with Disabilities Act (“ADA”) for Discrimination, Failure to
Accommodate, and Retaliation, and a Louisiana state law claim for vicarious liability. See
Record Document 41-1 at 1. Fryer claims that she suffers due to the alleged battery by
her former co-worker at TAC, including bulging discs in her neck, muscle spasms, and
numbness to her neck and upper body. See Record Document 41-1 at 2. Fryer claims
that she suffered substantial damages including physical pain and suffering, disability,
and loss of enjoyment of life. See id. Fryer also alleges that her time at TAC caused her
to suffer mental health issues, including severe depression. See id. Fryer claims that both
Dr. Taylor and Dr. Gervais advised her that her severe depression and mental and
physical pain was caused by what she experienced at TAC. See Record Document 41-2
(Fryer Deposition) at 192-93.
On March 22, 2023, Fryer submitted an Amended Expert Witness List to identify
Dr. Taylor and Dr. Gervais as “medical providers” who may or will testify at trial. Record
Document 41-3 (Maggie Fryer’s Amended Expert Witness List) at 1. Fryer states that Dr.
Taylor may testify as to the following matters:
Dr. Taylor is a clinical psychologist who may testify, among
other things, about his sessions with and treatment of Plaintiff,
her preliminary diagnosis of an adjustment disorder with
mixed features of anxiety and depression, her history of
mistreatment at Teche Action Clinic, and any and all
contentions and medical opinions contained in his medical
records of Plaintiff.
See id. Fryer states that Dr. Gervais may testify as to the following matters:
Dr. Gervais is a Board certified neurologist who may testify,
among other things, about his medical treatment and care of
Plaintiff, any and all contentions as set forth in his December
19, 2022 deposition, any and all contentions and/or medical
opinions contained within his medical records of Plaintiff, and
Plaintiff’s future medical needs related to the trauma Plaintiff
suffered on April 8, 2021 and May 18, 2021 as indicated in the
attached February 28, 2023 letter to the undersigned..
See id. In the motion before the Court, TAC seeks to exclude the expert testimony
of Dr. Taylor as he is not a “treating physician” for the purposes of Rule 26(a)(2)(C) and
should be barred from providing expert testimony at trial. See Record Document 41-1 at
1. TAC also argues that Dr. Taylor should be excluded as a fact witness because he has
no firsthand knowledge of any relevant facts, his testimony would comprise of
inadmissible hearsay, and his testimony would be duplicative of Fryer’s testimony and
unduly prejudicial to TAC. See id.
TAC also seeks to exclude the expert testimony of Dr. Gervais, arguing that Fryer’s
disclosure of Dr. Gervais’ testimony does not comply with Rule 26(a)(2)(C) because her
Amended Expert Witness List does not contain a “summary of facts and opinions” to
which Dr. Gervais is expected to testify, so that he should not be permitted to testify as
an expert. See Record Document 41-1 at 1-2. Alternatively, TAC argues that Dr. Gervais
is not a treating physician to any mental health disorder or condition that Fryer may be
experiencing, including anxiety and depression, so that offering Dr. Gervais as an expert
on such topic would subject Rule 26(a)(2)(B), rather than Rule 26(a)(2)(C). See Record
Document 41-1 at 2. Further, because Dr. Gervais did not provide a report pursuant to
Rule 26(a)(2)(B), he should be barred from testifying as to any mental health disorder or
condition as to Fryer, as well as to the cause of those symptoms. See id.
LAW AND ANALYSIS
Federal Rule of Civil Procedure 26(a)(2) governs disclosure of expert testimony
and requires parties to disclose expert witnesses they may call at trial at the time ordered
by the Court. Fed. R. Civ. P. 26(a)(2). If the witness is a retained expert, 26(a)(2)(B)
requires that the witness provide a detailed, written report. See LaShip, L.L.C. v. Hayward
Baker, Inc., 680 Fed.Appx. 317, 324 (5th Cir. 2017). If the witness is not a retained expert
witness, he or she is not required to provide the foregoing report. See id. However,
26(a)(2)(C) requires that the disclosure of such non-retained expert witnesses must
additionally state: (1) the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705; and (2) a summary of the
facts and opinions to which the witness is expected to testify. See id. This latter category
of experts includes treating physicians. See Fed. R. Civ. P. 26 advisory committee’s note
to the 2010 amendment; see also Hooks v. Nationwide Hous. Sys., LLC, No. 15-729,
2016 WL 3667134, at *3 (E.D. La. July 11, 2016). To the extent such witnesses intend to
provide expert testimony under Evidence Rule 702, 703, or 705, they must provide the
disclosures required by 26(a)(2)(C). See id.
I. Dr. Taylor
There appears to be no bright-line rule as to who qualifies as a “treating physician,”
but the Eastern District of Louisiana considered facts that determined whether doctors in
a recent case were the plaintiff’s treating physicians. In Collett v. Weyerhaeuser Co., the
Court noted that one of the doctors in the case satisfied the status of a “treating physician”
since he or his office colleague had a long history of treating the plaintiffs. 512 F. Supp.
3d 665, 672 (E.D. La. 2021), aff’d, No. 21-30449, 2022 WL 2387352 (5th Cir. July 1,
2022). However, the court noted that the evidence regarding the second doctor in the
case did not indicate that she was a treating physician for either of the plaintiffs. See id.
The second doctor saw one of the plaintiffs ten years prior and referred her to another
physician, but the first time the doctor actually saw the plaintiff for the condition that was
the focus of litigation was over a year following the complained event. See id. Additionally,
this visit was apparently at the request of the plaintiff’s counsel since he arranged and
paid for the visit. See id. Further, the second plaintiff was never treated until after the start
of litigation, and his attorney also paid for his visit. See id. The court found that this doctor
was “clearly” a retained expert under Rule 26 and must produce a report before being
allowed to testify, and the doctor’s failure to do so alone would disqualify her from
testifying in the case. Collett, 512 F. Supp. 3d at 672.
Here, the Court looks to Dr. Taylor’s deposition as evidence that he was retained
for litigation, although Fryer maintains that he was not. See Record Document 56 at 3. In
her deposition on February 7, 2023, Fryer claimed that she had been seeing Dr. Taylor
once a week, starting two months before the deposition. See Record Document 41-2
(Fryer Deposition) at 190. In Dr. Taylor’s deposition, he testified that he saw Fryer once
on January 19, 2023. See Record Document 41-5 (Dr. Taylor Deposition) at 29. Dr.
Taylor’s medical records as of the date of his deposition confirm his statement that he
only had one session with Fryer before her deposition. See Record Document 41-6 (Dr.
Taylor’s Medical Records) at 9. In Fryer’s Opposition to this Motion, she points out that
since Dr. Taylor’s deposition he has seen her twice, once on July 31, 2023, and then
again on September 5, 2023. See Record Document 56 at 1.
Fryer did not see Dr. Taylor until about two years after the alleged incidents and
her termination occurred. See Record Document 53 at 2-5. Dr. Taylor testified in his
deposition that he met with Fryer as a consultation to provide an “assessment” and
“report.” Record Document 41-5 (Dr. Taylor Deposition) at 109-10. He also testified that
he did not have enough information based off this one visit to create a treatment plan for
Fryer. See id. Further, Dr. Taylor testified that he saw Fryer because “Mr. Smith’s office
called and asked – mentioned that they had a client with work issues.” Record Document
41-5 (Dr. Taylor Deposition) at 28. Dr. Taylor further testified that “Mr. Smith’s office paid
the bill” for Fryer’s single session. Id. Additionally, although there were subsequent visits
with Dr. Taylor after his deposition, two visits in the last several months before this ruling
does not amount to a “long history” of treating Fryer. Based on Dr. Taylor’s deposition
testimony and the medical records provided, it appears that Dr. Taylor was retained as
an expert in this case, and therefore was required to produce a report under 26(a)(2)(B)
in a timely manner.
In the current matter, expert reports were due on May 16, 2023. See Record
Document 23 (Order Granting Motion to Modify Deadlines) at 1. Dr. Taylor’s report is
dated September 13, 2023. See Record Document 56-4 (Dr. Taylor’s Report) at 1. Fryer
cites testimony by Dr. Taylor stating that he was not retained as an expert. See Record
Document 41-5 (Dr. Taylor Deposition) at 3. Further, Fryer argues that TAC did not suffer
any prejudice even though the report was outside of the given deadlines. See Record
Document 56 at 4. The Court does not agree. Dr. Taylor’s report was submitted months
beyond the deadline provided by the Court, and although Dr. Taylor purports that he was
not retained as an expert, evidence in the record indicates otherwise.
Additionally, TAC argues that Dr. Taylor should be precluded from testifying as a
fact witness as to Fryer’s “history of mistreatment” during her time at TAC because Dr.
Taylor’s knowledge about any alleged mistreatment does not derive from his own
personal knowledge, and that would be inadmissible hearsay under Federal Rules of
Evidence 801 and 802. Record Document 41-1 at. 8. Witnesses who are found to be
precluded from testifying as an expert may testify as a fact witness as to matters or any
other matters that are within their personal knowledge. See Pittman v. U.S. Bank NA, Tr.
to Bank of Am., NA, 451 F.Supp. 3d 686, 689 (E.D. Tex. 2020). Here, the Court agrees
with TAC that Dr. Taylor does not have personal knowledge of the alleged incidents that
occurred during Fryer’s time at TAC. His only knowledge of the situation derived from his
personal meetings and discussions with the plaintiff. See Record Document 41-5 (Dr.
Taylor’s Deposition) at 40-42, 44-46. Since Dr. Taylor is not testifying as an expert
witness, his testimony concerning his meetings with the plaintiff are excluded.
As to Dr. Taylor, this motion is granted. The Court finds that he was retained as an
expert witness and his report was untimely. Dr. Taylor is also precluded from testifying as
a “fact witness” and as a “treating physician.”
II. Dr. Gervais
On September 24, 2021, Fryer began seeing Dr. Gervais for treatment of
migraines. See Record Document 41-4 (Dr. Gervais’ Medical Records) at 93. Dr. Gervais
is board certified by the American Academy of Psychiatry and Neurology. See Record
Document 41-3 (Maggie Fryer’s Amended Expert Witness List, Dr. Gervais’ Curriculum
Vitae) at 1.
Following the Court’s reasoning in Collett, Dr. Gervais qualifies as a treating
physician, as his treatment of Fryer began before litigation and has been ongoing for
several years. See Collett, 512 F. Supp. at 672; see also Record Document 41-4 (Dr.
Gervais’ Medical Records). As stated above, although a treating physician is not required
to submit a report under 26(a)(2)(B), the propounding party must prepare a “disclosure”
regarding that witness and identifying “(i) the subject matter on which the witness is
expected to present evidence pursuant to Federal Rules of Evidence 701, 703, or 705;
and (ii) a summary of the facts and opinions to which the witness is expected to testify.”
Hebert v. Prime Ins. Co., 459 F.Supp 3d 766, 772 (W.D. La. 2020) (citing Sheppard v.
Liberty Mut. Ins. Co., 2017 WL 467092, at *1 (E.D. La. Feb. 2, 2017) (citing Fed. R. Civ.
P. 26(a)(2)(C)).
Disclosures consisting of medical records alone are insufficient to fulfill the
disclosure requirement. The proponent must provide notice through “an actual summary
of the facts and opinions to which the witness is expected to testify.” Id. “The court must
exclude or limit expert testimony if the expert's disclosure was improper unless the
improper disclosure was ‘substantially justified or is harmless.’” Patton v. Jacobs Eng'g
Grp., Inc., No. 15-123, 2016 WL 1090566, at *3 (M.D. La. Mar. 18, 2016) (quoting Fed.
R. Civ. P. 37(c)(1)). In determining whether exclusion is appropriate, the court should
consider (1) the importance of the witness's testimony; (2) prejudice to the opposing party
of allowing the witness to testify; (3) possibility of curing such prejudice by granting a
continuance; and (4) the explanation, if any, for the party's failure to comply with the
discovery order. Id. (citing Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d
546, 572 (5th Cir. 1996)).
Here, Dr. Gervais’ testimony appears to be important as his testimony will
ostensibly provide the jury with information regarding Fryer’s alleged disability. It forms
centerpiece of the remaining claims under the ADA. As to the third prong, there is no
continuance available in this matter. Further, Fryer asserts that she complied with the
discovery order by providing medical records and case lists in the discovery stage. See
Record Document 56 at 10. As to whether TAC will be prejudiced by allowing Dr. Gervais
to testify, the Court notes that although Fryer’s Amended Expert Witness List’s description
is brief, Dr. Gervais was deposed before the May 16, 2023, deadline on December 19,
2022. See Record Document 41-7 (Dr. Gervais’ Deposition). Further, TAC was provided
with Dr. Gervais’ medical records. See Record Document 41-4 (Dr. Gervais’ Medical
Records). Dr. Gervais’ deposition testimony provides the Court with more than just his
medical records, and it appears that the disclosure in this case is harmless under
precedent.
TAC also argues that should Fryer seek to have Dr. Gervais testify as to the cause
of Fryer’s anxiety and depression he would have needed to file an expert report pursuant
to Rule 26(a)(2)(B). See Record Document 58 at 6. Dr. Gervais testified in his deposition
that “when she was let go or quite or whatever happened, it had a significant effect on
her. It’s definitely affecting her anxiety level and her depression.” Record Document 41-7
(Dr. Gervais’ Deposition) at 25-26. He also testified thereafter, “[n]ow, keep in mind, I’m
not managing it. I’m just making a statement that that experience exacerbated her
underlying migraine and neck problems.” Id. at 26. This goes beyond his treating
physician testimony.
“[D]istrict courts in this circuit agree that the treating-physician exception to the
expert report requirement applies only when the treating physician's opinion testimony is
based on personal knowledge obtained from examining and treating an individual.”
MedArc, LLC v. Scott and White Health Plan, 618 F.Supp. 3d 365, 374 (N.D. Tex. 2022)
(citing Cooper v. Wal-Mart Transp., LLC, No. 08-0085, 2009 WL 290447, at * 1 (S.D. Tex.
2009)). “[W]here a physician's testimony ‘relies on sources other than those utilized in
treatment, courts have found that the treating physician acts more like an expert and must
submit a report under Rule 26(a)(2)(B).’” Parker v. NGM Ins. Co., No. CV 15-2123, 2016
WL 3198613, at *2 (E.D. La. June 9, 2016). Where testimony “consists of opinions based
on ‘scientific, technical, or other specialized knowledge’ regardless of whether those
opinions were formed during the scope of interaction with a party prior to litigation,” the
testimony is rather that of an expert. Moore v. DeJoy, No. 18-12270, 2022 WL 19263947
at “4 (E.D. La. Feb. 23, 2022). For example, testimony as to causation or as to future
medical treatment has been considered the province of expert testimony subject to the
requirements of Rule 26(a)(2)(B). Rea v. Wis. Coach Lines, Inc., No. 12-1252, 2014 WL
4981803, at * 2 (E.D. La. Oct. 3, 2014).
Because the Court does not find that exclusion of Dr. Gervais’s testimony is
warranted, he may testify when called. However, Dr. Gervais may only testify as to his
“personal knowledge obtained from examining and treating” Fryer, any other opinions are
specifically excluded and prohibited as he did not submit a report as required under Rule
26(a)(2)(B). MedArc., LLC, 618 F.Supp. 3d at 374.
For the foregoing reasons, Court denies the motion as to any testimony by Dr.
Gervais beyond his status as a treating physician of the plaintiff.
CONCLUSION
Based on the reasons explained above,
IT IS ORDERED that Defendant’s Motion in Limine (Record Document 41) is
GRANTED IN PART AND DENIED IN PART. The motion is GRANTED as to the
exclusion of Dr. Taylor's testimony. The motion is DENIED as to the exclusion of Dr.
Gervais’ testimony. Dr. Gervais’ testimony is limited to that as a treating physician.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 11th day of October
2023.
Ah fateterser [pln
k | JAletecce [PA
UNITED STATES DISTRICT COURT
10