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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KATHLEEN SEIFERT

Plaintiff,

v.

UNITED STATES OF AMERICA,

UNITED STATES FOREST SERVICE,

UNITED STATES DEPARTMENT OF

AGRICULTURE, and DOES 1-25,

inclusive,

Defendants. 

CIV-S-04-0553 DFL GGH

MEMORANDUM OF OPINION 

AND ORDER

Defendants move for summary judgment arguing that plaintiff

Kathleen Seifert (“Seifert”) cannot prove that they caused her

injuries. For the reasons stated below, the court: (1) GRANTS

defendants’ motion to exclude the testimony of Seifert’s retained 

expert witnesses who did not submit an expert report; (2) DENIES

defendants’ motion to exclude testimony from Seifert’s treating

physicians; (3) GRANTS defendants an opportunity to depose

Seifert’s treating physicians on their opinions as to the cause

of her injuries; and (4) DENIES defendants’ motion for summary

judgment. 

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I. 

Seifert alleges that on November 26, 2001, Scott Miles, a

United States Forest Service employee, struck her vehicle and

injured her. (Compl. ¶¶ 10, 12.) On March 19, 2004, Seifert

brought this suit under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. §§ 1346(b), 2671-2680, seeking damages for her injuries. 

On May 25, 2004, the parties stipulated that Scott Miles was

acting within the scope of his employment when he struck Seifert. 

(Stip. 5/25/2004.) Based on this stipulation, the court

dismissed Scott Miles from the claim with prejudice and Seifert

substituted the United States as a defendant. (Id.)

II.

Defendants argue that Seifert cannot prove they caused her

injuries because the witnesses on which she relies have not

provided expert reports and should be excluded from testifying. 

(Mot. at 4.) Defendants seek to exclude: (1) Seifert’s retained

expert witnesses from testifying entirely; and (2) Seifert’s

treating physicians from testifying about the cause of her

injuries or whether her medical care was reasonably necessary. 

A. Exclusion of Seifert’s Retained Experts

 First, defendants argue that Seifert’s retained expert

witnesses must be excluded from testifying at trial because they

have not provided expert reports. (Mot. at 10.) 

Fed. R. Civ. P. 26 establishes two types of experts: (1)

“those who may qualify as experts, but are not retained or

specially employed”; and (2) “those who are retained or specially

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26 The failure to turn over expert reports cannot be 1

described as harmless, particularly when the time for discovery

has elapsed. 

3

employed to provide testimony in the case.” Shapardon v. W.

Beach Estates, 172 F.R.D. 415, 416 (D. Haw. 1997). Under Rule

26(a)(2)(B), witnesses who are retained or specially employed to

provide expert testimony must provide a written report to the

opposing party. If a party fails to disclose the information

required under Rule 26(a), the party cannot use that expert at a

trial, at a hearing, or on a motion, unless the failure is

harmless. Fed. R. Civ. P. 37(c)(1). 

The scheduling order in this case required the parties to

make expert witness disclosures under Rule 26(a)(2) by March 1,

2005. (Order 6/28/2004.) Under Rule 26(a)(2)(B), expert witness

disclosures must include expert reports. Seifert designated

three retained expert witnesses: (1) an accident

reconstructionist; (2) a rehabilitation counselor; and (3) a

biomechanical analyst. (Mot. at 2.) However, she failed to

provide defendants with expert reports from any of these

witnesses by March 1, 2005. (Luther Decl. ¶ 2.) Because Seifert

did not comply with Rule 26(a)(2)(B) and violated the scheduling

order, the court GRANTS defendants’ motion to exclude Seifert’s

three retained expert witnesses.1

B. Seifert’s Treating Physicians

In their second argument, defendants claim that Seifert’s

treating physicians cannot testify about the cause of her

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injuries because they have not provided expert reports. (Mot. at

6.) 

District courts are split on this issue. See Martin v. CSX

Transp., Inc., 215 F.R.D. 554, 556 (S.D. Ind. 2003) (recognizing

split). Some courts prohibit treating physicians from testifying

on causation if they do not provide an expert report. See Thomas

v. Consol. Rail Corp., 169 F.R.D. 1, 2 (D. Mass. 1996) (requiring

a treating physician to file an expert report before opining on

causation); Widhelm v. Wal-Mart Stores, Inc., 162 F.R.D. 591,

593-94 (D. Neb. 1995) (same). 

Other courts allow treating physicians to give opinions on

causation without providing an expert report if the physician

bases the opinion on knowledge acquired in the course of

treatment. See Shapardon, 172 F.R.D. at 416-17 (finding a

treating physician could testify about the cause of an injury if

he based his opinion on the examination and treatment of the

patient) (collecting similar decisions). 

Given the express language of Rule 26(a)(2)(B), it is

surprising that there should be such uncertainty on this issue.

Rule 26(a)(2)(B) only requires disclosure of reports from “a

witness who is retained or specially employed to provide expert

testimony in the case or whose duties as an employee of the party

regularly involve giving expert testimony . . . .” In addition,

the advisory committee notes state that a treating physician “can

be deposed or called to testify at trial” without providing a

written report. Fed. R. Civ. P. 26(a)(2), Advisory Committee’s

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 There may be other grounds to exclude or limit the 2

treating physicians’ expert testimony. These matters can be

explored at the pre-trial conference and through pre-trial in

limine motions. 

5

Notes, 1993 amendment. The rule and comments could not be any

clearer: a treating physician, called upon to give expert

testimony, is not required to prepare a report. Given that

Seifert has not specially employed her treating physicians to

provide expert testimony in this case, she was not required to

disclose a report at the time of their designation as experts. 

Therefore, the court DENIES defendants’ motion to exclude

testimony from Seifert’s treating physicians for failure to

prepare a report. However, in light of the uncertainty in the 2

case law, the court GRANTS defendants’ request to depose the

identified treating physicians concerning any expert opinions

that they may offer at trial.

Because Seifert’s treating physicians are not barred from

testifying at trial, defendants have not established that Seifert

will be unable to prove causation. Therefore, the court DENIES

defendants’ motion for summary judgment.

III.

For the reasons stated above, the court: (1) GRANTS

defendants’ motion to exclude the testimony of Seifert’s retained 

expert witnesses who did not submit an expert report; (2) DENIES

defendants’ motion to exclude testimony from Seifert’s treating

physicians; (3) GRANTS defendants an opportunity to depose

Seifert’s treating physicians on their expert opinions; and (4)

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DENIES defendants’ motion for summary judgment. 

IT IS SO ORDERED.

Dated: 12/14/2005

DAVID F. LEVI

United States District Judge

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