counsel did not use the word causation in disclosing the treating physicians expected testimony at the outset here the appellant concedes that  court was within its discretion to exclude any testimony from the non treating physician dr vrba for whom no records had been provided excluding him in this situation it narrows where a discovery sanction is imposed that results in dismissal of the action and number of eight circuit authorities indicate that causation not to be persuasive there was no finding of willfulness or bad faith the defendant does not argue willfulness or bad faith we would point to the case of hartland bank cited in our briefs where this court remained the case for consideration of sanction less than dismissal even though the plaintiff in it included in in discovery or anything amongst dr petit's information that went to causation well his medical records were disclosed which included three surgical dictations two shoulders and a neat where he described the injuries to the incident that's alleged in the complaint now that there's an argument well that's just what mr van told him but if you read those dictations by the doctor he does not qualify them in any manner he says the patient was injured on this incident and and perhaps more importantly in his records was a letter he authored april twenty sixth two thousand and sixteen where he expressed a causation opinion on mr expert in nature they're not called as lay witnesses they weren't at the event they take a history and from the patient and proceed with their diagnosis treatment  based on that history we did not serve a paper that says dr petit will testify as an expert on causation and i guess the issue under rule thirty seven is was that omission substantially justified or harmless so as not to require a sanction given injuries alleged in the complaint and he was so disclosed the district court view of that was well that that was not a discovery request requesting causation a month before the discovery deadline to ask if we had any experts we sent a letter saying the treating physicians are going to testify as to diagnosis treatment prognosis future medical but that letter was sent with the view doesn't it kind of go without saying that he has to testify to medical causation before he can even testified all these other things that we say he's going to there they were the defendants were attempting to exclude both testimony of a non treating physician for whom no records were supplied like dr vrba here and  would be to exclude the testimony of the non treating physician for whom no records had been supplied and permit the treating physician to testify based his treatment and his medical records period in other words as i read that case if that was the decision here we could use dr penn pesci for hypothetical questions  we couldn't give him dr varmus opinions and ask him do you know agree with those and use them for to buttress his opinion is a his testimony would be based on his treatment and his medical records we've cited admittedly district court cases and one seventh circuit case that says if the causation opinions are based on his treatment of the patient then the the other error we believe the district court made here was putting aside whether or not dr petit can testify to causation was there not sufficient medical evidence in the summary judgment record based on a summary judgment standard to judge medical causation given the fact that the medical records with these three surgical dictations were in the record where dr petty says this patient was injured at petco three times for three different surgeries and included his letter where he expressed a causation opinion on evidence of causation to survive well yes i do and what we're arguing is if you look at those surgical dictations and but if if his testimony is excluded as to causation then you can't rely on that kenya well i think it was a testimony as to causation and i don't think there was any ruling that he could not talk about his medical records these are you know lay the foundation for his medical records these are my medical records once he lays that foundation the right medical records are in the defendant did not dispute foundation for those medical records and hasn't hasn't all along tradition bend that that medical records contain both hearsay and non hearsay and a statement of opinion would be hearsay because it's not necessary causation is not necessary for treatment ordinarily you'd have to in order for it to be non hearsay to come in as who the medical records exception you'd have to establish that method and that somehow the causation is necessary for diagnosis and treatment right well and i think i think the cases go both ways but we've cited quite cases that say if it's causation based on his treatment then it's not  outside the you know the treatment exception you have to lay the foundation that the etiology of the injury is directly related to the mechanism of the of the incident right yes it's still you know is that causation evidence that would be excluded well dr still passed for a vote that is a basis for his diagnosis and treatment well i i think you can testify to it as a basis for his diagnosis and treatment  the first bucket being the issue of whether the truck or to be used its discretion when it issued sanctions against the appellant which consisted of the exclusion of the untimely causation opinions from the two doctors although given the stipulation we're going to focus on dr peshitta day they've conceded as to dr firma and then of course the second bucket of two issues related to the granting of the summary judgment motion turning to the sanctions order as as this court is aware we're dealing with an abuse of discretion standard and the trial court's decision should not be reversed unless it was based on either iranians view of the law or a clearly erroneous assessment of the evidence and to delve into the trial court's discretion and the exercise of that discretion i think a very quick factual summary chronologies important this lawsuit was filed in march of two thousand and sixteen had int hollowing of twenty sixteen october thirty first to designate experts discovery closed on february seventeenth of last year two thousand and seventeen in january of two thousand and seventeen three months after the deadline for expert disclosures that passed because counsel did didn't have to but asked dependents counsel you plan on having experts and the opponents counsel responded to say he quote expected to have the treaters testify regarding because i forgot to throw in the word causation well he does the the issue your honor is this is why in two thousand december  ten rule twenty six a was amended to address this exact issue of ambiguity in different courts in terms of what can cheating physicians really talk about courts had trouble drawing a line between when a tr or was testifying as a fact witness on treatment etc prognosis versus when they were offering expert opinions on things like causation and that's why the rule was changed in december two thousand and twelve to prevent this exact situation to require disclosure of treating physicians if they're going to use on experts on causation even if they weren't retained as experts and even if they weren't required to provide written reports and it also bears noting you're out of the november twenty sixth teen pepco actually disclose its own expert medical witness on causation saying that the injuries that issue were in fact caused by things totally unrelated even after reports from dr vermin again it sounds like we don't need to talk about him any more but the trial court exercise its discretion and excluded any causation opinions from dr petit because he had been previously identified as an expert witness under twenty six a to c and he certainly had disclosed a summary of the facts and opinions and what she was going to which is exactly what twenty six a to see requires what about the plaintiff's argument let me look at my notes bad faith we're not suggesting there was willfulness or bad faith here but what mr lumber didn't talk about is the third factor which is fault and if you look at this court's decision in the look likely gas case and so what would you say is the nature of the fault in this case i think the nature is is primarily the failure to comply with rule twenty six a to see at any time  at no point did appellants council provide a designation that would comply with that rule all we had was the doctor listed as a fact witness somebody who had knowledge of events and that was it  and that's just simply doesn't meet the standard had he at least been listed as an expert witness we were to go in a little closer but he wasn't designated let alone did we have the facts and opinions the base his opinions in the basis for them either so that was that was really the problem and when you look at the chronology i laid out i think the fault heightens with each step of the way we reached out to him even after the deadline it passed he still didn't provide the information twenty six eight to see requires we served our own expert report and in november of two thousand and sixteen specifically saying there's no causal connection here between this accident there are a myriad of other issues that caused this gentleman's injuries so it's stuff that at a high level it's a violation of a failure to comply with twenty six eight to see and there are multiple instances where that could have been corrected and simply never it's too late to close to trial in the open only appropriate sanction remedy is to strike the evidence which we you know will result in a case that can't go to trial yes your honor and i don't even think all those other warning signs were  necessary i think that the failure to comply was clear on its face but the fact that there were all these additional opportunities and never once went back to court and said hey i'm trying to get some i mean reports they filed summary judgment motion you know he never went back at any point in time case nine months in front of the jury for a failure to disclose an expert i think i think the court's decision would be subject to a little more scrutiny i think the way the law is written the judge would be within his rights but i do think he would probably take a harder look at it is the district court required to consider lesser sanctions and is there anything in the record indicating that the court did so here yes when when yes the court is required to consider lesser sanctions the district court did do that among other that if if they were allowed to have these untimely designations that pepco would need to depose these treaters pepco may need a rebuttal x burnt and the court exercise its discretion to control its calendar and said i'm not going to continue this case and i know a contends that you know maybe the case could've just been continued a couple months and this could have all been corrected obviously we all know that assumes myriad thangs the veil ability of the lawyers to veil believe all the witness availability so the court did evaluate all that and determined this is the sanction which you know before the amendment to rule twenty six i'm old enough to have practiced law in that world that i recall deposing experts two weeks before the trial because of just exactly this question while the treating physicians going to offer this will be an end in its hold on wait a minute then the court would tell you well take that deposition at the expense of the person who's made the late disclosure and if you need next bird after that then w try and figure out what we're supposed to do so i mean in this case we're talking about a month's long period of time i mean it doesn't strike me as impossibilities some lesser sanction might be appropriate why would i be wrong there well  the situations you're talking about your honor i don't know if those proceeded the december two thousand and ten amendments to the absolutely that's i mean i haven't practiced law for twenty three years i mean so my response that your honor what would be number one i think that's exactly why twenty six and i agree but i'm saying here if you look at the number of months why wasn't a lesser sanction more appropriate i think given the talent of the circumstances as you know your honor the trial court has wide discretion narrows as the sanction becomes more severe but there's still discretion there and when you look at the time that's why i wanted to outline the timeline for the court because there are so many opportunities where something could have been done and the court decided you know what i'm not going to potentially do you real this trial that's been set for quite a while i'm not going to allow it you had opportunities at the court decided to allow it it probably would be within the court's discretion don't you agree yes i do the a couple other points i'd like to make in terms of what the truck court did do getting back to how it exercises discretion i think it's very clear that the trial court went through a step by step analysis as required under way in or versus johnson the court looked at the reasons for noncompliance and found no valid excuse found there was no substantial justification and  surprise and prejudice we were a couple months from trial discovery deadline and passed expert designations that past months months ago he was never doesn't it as an expert i think we can agree that the importance of the information is the one factor that did weigh in appellants favor i don't think there's any argument about that the information out issues obviously critical to their case so that was the only factor that the court found weighed in opponents favor the  other factor underwager of course is the extent to which the information or testimony would have disrupted the order and efficiency of the trial and that's where you get into the need to depose the experts and and could all that been done in the court exercise its discretion and said no you know what we're  not doing that and counsel talked about the andersen case one key distinction from the andersen case from the southern district of ohio is that the plaintiff in that case did at least bet even anderson the court concluded you know we're going to limit the testimony to personal observations diagnoses and treatments so there still wasn't cause you know there's still wasn't an opening of the door for causation  argue it but i think it's important to note that one of the arguments in their brief dealt with the issue of whether petco had a duty to meet and confer i just want to briefly address the fact that this is the sanctions were not under thirty seven ever the rules of civil procedure we were petco was not trying to compel any discovery for which there could have been a meeting come for obligation this was a thirty seven c sanction which is self authenticating and cited in the authorities in our brief i just wanted to address that briefly and terms of their reliance on the hartland case that case was very distinguishable that case dealt with a party showing up to  exit for trial with twenty seven documents and telling the court that they had eleven witnesses that were going to talk about those documents and in that case the court only looked for the documents and said you know three of these should have been produced in this this is here and the last thing i want to address in terms of the summary judgment motion mr lumbard appellants counsel talked about all the reasonable inferences that should have been drawn from the medical records that were in the record just to address that briefly obviously without an expert designation the court was within its right to do what it did under thirty seven c due to the noncompliance with twenty six eight to see but to talk about reasonable inferences and to suggest that a doctor should reasonably infer that you know the reason it's not reasonable to infer the treater did anything other than listen to the patient and write down what the patient said the patient could have just as easily fallen off a ladder or fallen off as a roof or or you know had some other injury it's not reasonable to think that the doctor did anything other than accept the patien i would agree but it involved a whole host of brooks more on point yes and in brooks the complaint and the medical records of that plaintiff neither of those pointed to any specific incident as a cause of that man's injuries there was nothing plus he was given additional time to designate an expert and did not  d that was a consequence you know as a consequence dismissal i think they all turn on their own facts and the consideration of a lesser sanction here surprise or prejudice to petco judge pratt said in the southern district well when you're talking about treating physicians surprise and prejudice is limited a best with regard to the court's docket here the ruling dismissing this case was two months before the scheduled trial date my letter to the defendant's counsel saying he's treating physicians are going to testify to all these other things was in january five months before the trial date well we need to take his deposition there was still a month left in the discovery time period they chose to stand mute and let the timer and then attack with motion for summary judgment motion for sanctions if this is a technical violation of rule twenty six the issue  still remains under rule thirty seven c was that omission harmless given all the disclosures that were made we would ask that the court remand this to the district court for consideration of