UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

DWAYNE NABORS, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:14-CV-171

)

CRST MALONE, INC., and )

CRST INTERNATIONAL, INC., )

)

Defendants. )

OPINION AND ORDER

On January 12, 2015, Defendants CRST Malone, Inc., and CRST International, Inc.

(“together CRST”), filed a motion to exclude Plaintiff Dwayne Nabors from offering any expert

testimony, including from the five treating physicians identified in his initial disclosures, on the

issue of causation because he did not disclose such witnesses or produce a report under Federal

Rule of Civil Procedure 26(a)(2). (Docket # 18.) Nabors has not filed a response to the motion,

and the time to do so has now passed. 

For the following reasons, CRST’s unopposed motion will be GRANTED.

A. Factual and Procedural Background

Nabors filed this suit against CRST on May 9, 2014, in LaPorte Superior Court, and

CRST then removed it here under 28 U.S.C. § 1332. (Docket # 1, 2.) In the action, Nabors

alleges that CRST was negligent in allowing him to operate his truck in excess of the maximum

hours allowed by federal trucking regulations, resulting in an accident that caused him injury. 

This Court held a preliminary pretrial conference on July 22, 2014, setting the following

deadlines: August 15, 2014, for initial disclosures under Rule 26(a)(1); December 5, 2014, for
Nabors’s expert witness disclosures under Rule 26(a)(2); January 30, 2015, for CRST’s expert

witness disclosures under Rule 26(a)(2); March 31, 2015, for the completion of all expert

discovery; and May 29, 2015, for the completion of all fact discovery. (Docket # 7, 10.)

B. Applicable Legal Authority

“[A] party must disclose to the other parties the identity of any witness it may use at trial

to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P.

26(a)(2)(A). Unless otherwise stipulated by the parties or ordered by the court, “this disclosure

must be accompanied by a written report–prepared and signed by the witness–if the witness is

one retained or specially employed to provide expert testimony . . . .” Fed. R. Civ. P.

26(a)(2)(B). If the witness is not required to provide a written report, the disclosure must state:

“(i) the subject matter on which the witness is expected to present evidence under Federal Rule

of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness

is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).

Federal Rule of Civil Procedure 37(c)(1) states that if a party fails to identify a witness or

provide information as required by Rule 26(a), “the party is not allowed to use that information

or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless.” “[T]he sanction of exclusion is automatic and mandatory

unless the sanctioned party can show that its violation of Rule 26(a) was either justified or

harmless.” David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003) (citation omitted). 

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C. Discussion

CRST states that Nabors identified five treating physicians in his initial disclosures under

Rule 26(a)(1): Dr. George Khoury, Dr. James Bethea, Dr. George Pappas, Dr. Terry Brown, and

Dr. John Hulvey.1 In doing so, Nabors apparently gave the same cursory description for each

physician–that the physician would be “called to testify regarding the injuries sustained by Mr.

Nabors and his subsequent treatment.” (Mem. of Law in Supp. of Defs.’ Mot. 2.) Thus, the

initial disclosures do not suggest that these treating physicians would testify about causation. 

And Nabors did not disclose under Rule 26(a)(2)(C) by the December 5, 2014, deadline

that any treating physician would provide expert testimony about causation, along with the facts

and opinions to which the physician was expected to testify. See Ballinger v. Casey’s Gen. Store,

Inc., No. 1:10-cv-1439, 2012 WL 1099823, at *2 (S.D. Ind. Mar. 29, 2012) (“A treating

physician is an expert witness when he testifies about opinions formed during or after treatment

of a patient.” (quoting Coleman v. Am. Family Mut. Ins. Co., 274 F.R.D. 641, 644 (N.D. Ind.

2011)). Nor did Nabors disclose by December 5, 2014, any retained or specially employed

expert witness under Rule 26(a)(2)(B) who may testify about causation, together with the

required expert report. 

Nabors does not argue that his failure to disclose was substantially justified or harmless.

Fed. R. Civ. P. 37(c)(1). Rather, Nabors opted not to respond to CRST’s motion seeking to

exclude him from offering expert testimony on the issue of the causation, and thus, he apparently

does not oppose such an exclusion. Accordingly, CRST’s motion will be GRANTED. 

1 CRST did not submit Nabors’s initial disclosures with its motion, and therefore, they are not part of the

record. 

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D. Conclusion

For the foregoing reasons, Defendants’ motion to exclude Plaintiff from offering any

expert testimony on the issue of causation (Docket # 18), which Plaintiff did not oppose, is

GRANTED. 

SO ORDERED.

Enter for February 20, 2015.

s/ Susan Collins 

Susan Collins

United States Magistrate Judge

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