United States Court of Appeals

Fifth Circuit

FILED

June 4, 2003

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

No. 02-60686

Summary Calendar

_______________

CENTRAL STATES HEALTH & LIFE COMPANY OF OMAHA, NEBRASKA,

Plaintiff-Appellant,

VERSUS

HERBERT LEON BREWER, III,

Defendant-Appellee.

* * * * * * * * * * * * * *

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No. 02-60718

Summary Calendar

_______________

CENTRAL STATES HEALTH & LIFE COMPANY OF OMAHA, NEBRASKA,

Plaintiff-Appellee,

VERSUS

HERBERT LEON BREWER, III,

Defendant-Appellant.
2

_________________________

Appeals from the United States District Court

for the Northern District of Mississippi

m 1:99-CV-383-D-D

_________________________

Before HIGGINBOTHAM, SMITH, and

CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Central States Health & Life Company of

Omaha, Nebraska (“Central States”), appeals

a declaratory judgment finding Herbert Leon

Brewer, III, continuously disabled for a period

of twenty-four months and therefore entitled

to benefits under a Central States disability insurance policy. Brewer appeals the denial of

his motion to add a counterclaim for bad faith.

Finding no reversible error, we affirm.

I.

In January 1999, Brewer, a chiropractor,

was issued a Central States disability policy

entitling him to benefits in the event of “total

disability,” defined by the policy as

[the] inability, as a result of sickness or

injuryto performthe substantial and materialduties of your principaloccupation

for the first 24 months of continuous

disability. After the first 24 months of

continuous disability, total disability

means the inability to engage in any

occupation for which you are qualified

byreason of education, training or experience. 

The policy also provided Brewer with benefits

in the event he became “partially disabled,”

defined as “the inability, as a result ofsickness

or injury, to perform one or more of the main

duties of your principal occupation, or the inability to perform those duties on a full-time

basis.”

In 1996, while incarcerated, Brewer

strained his upper extremities and neck after he

slipped on a wet concrete walkway. Over one

year later, he contacted Central States and

initiated a claim for disability benefits, submitting medical records from three different

doctors, including his treating physician, Dr.

Alan Pritchard, who stated that Brewer was

“totally disabled” as of the date of the accident.1

In August 1999, Central States denied

Brewer’s claim, then filed a declaratory judgment action seeking a determination that

Brewer was neither totally nor partially disabled under t he terms of the policy. Before

trial, the district court denied Central States’

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

1 Pritchard later retracted this opinion but still

concluded that additional testing was needed to

determine the extent of Brewer’s disability.
3

motion to strike the designation of experts Dr.

RommellChildress and Dr. John DeSutter and

denied Brewer’s motion to add a counterclaim

for bad faith. The court granted declaratory

relief for Brewer, finding him totally disabled

for a period of twenty-four months beginning

on the date of the accident, and partially disabled thereafter. 

II.

Central States contends the district court

erred by refusing to strike Childress and DeSutter as experts for their failure to comply

with FED. R. CIV. P. 26(a)(2)(B). The refusal

to exclude or limit testimony is reviewed for

abuse of discretion. Black v. Food Lion, Inc.,

171 F.3d 308, 310 (5th Cir. 1999). We reverse a decision regarding the designation of

expert witnesses only in “unusual and exceptional cases.” Sierra Club, Lone Star Chapter

v. Cedar Point Oil Co., 73 F.3d 546, 569 (5th

Cir. 1996) (citation omitted). 

A district court has wide latitude in determining whether an expert report is sufficiently detailed and complete. Michaels v.

Avitech, Inc., 202 F.3d 746, 750 (5th Cir.

2000). Rule 26(a)(2)(B) requires that expert

reports contain

a complete statement of all opinions to

be expressed and the basis and reasons

therefor; the data or other information

considered by the witnessin forming the

opinions; any exhibits to be used as a

summary of or support for the opinions;

the qualifications of the witness,

including a list of all publications authored by the witness within the preceding ten years; the compensation to be

paid for the study and testimony; and a

listing of any other cases in which the

witness has testified as an expert at trial

or by deposition within the preceding

four years.

FED. R. CIV. P. 26(a)(2)(B). Central States

argues that Childress’s five page report does

not meet four of Rule 26’s requirements; the

report allegedly does not contain a complete

statement or the bases for Childress’s opinions. Also, the report allegedly fails to list cases in which Childress has testified as an expert

within the past four years, and it lacks any

exhibits.

Even where an expert’sreport fails to meet

the requirements of rule 26, his testimony

should be excluded only after an examination

of four factors: (1) the party’s explanation, if

any, for failure to comply with the scheduling

order; (2) the prejudice to the opposing party

of allowing the witness to testify; (3) the possibility of curing such prejudice by granting a

continuance; and (4) the importance of the

testimony. Sierra Club, 73 F.2d at 572. 

A.

Childress’sreport opinesthat,following the

accident, Brewer was “totally disabled for a

minimum of six to eight weeks from doing his

normal occupation or any occupation.” The

report also states that Brewer’s medical

condition currently precludes him from functioning as a chiropractor on a full-time basis.

At his deposition, Childress explained that

Brewer “might be able to do some minor manipulations. He may be able to do one a day,

but if he tried to do ten, it might literally incapacitate him as far as having increased neck

and arm symptoms . . . .”

Noticeably, the report does not expressly

state whether Brewer was continuously disabled for a period of twenty-four months following the accidentSSthat is, unable to per-
4

form the substantial and material duties of his

principal occupation. Childress later deposed,

however, that Brewer “did meet the definition

of total disability.” Central States argues that

Childress’s deposition testimony is outside the

scope of what amounts to an incomplete

expert report.

The report’sstatement that Brewer was unable to perform his occupation or any occupation for a minimum of six to eight weeks

following the accident is not inconsistent with

Childress’s deposition testimony that Brewer

was totally disabled for twenty-four months.

For one, the policy defines total disability as

the inability to perform only the claimant’s

principal occupation for a twenty-four-month

period. Second, the expert report states that

Brewer was unable to engage in any occupation for a minimum of six to eight weeks;

this does not rule out the possibility of a longer

disability.

In any event, and absent unfair surprise or

bad faith, an expert may testify as to matters

outside his report if the matter is within his

expertise.2 The test is not whether the expert

report covers every conceivable question of

cross-examination, but whether it provides

sufficient detailsuch that the opposing party is

not surprised. 

Central States cannot claimit wassurprised

by Childress’s deposition testimony. The report’s conclusion that Brewer is currently unable to work full-time as a chiropractor should

have put Central States on notice that Childress would testify that Brewer was unable to

perform the substantial and material duties of

a chiropractor for a twenty-four-month period

after the accident.3 Indeed, the report concludes that Brewer was unable to perform any

job for a period of six to eight weeks thereafter. Not surprisingly, Central States does

not explain how it was prejudiced.

Second, Central States argues that the report failsto provide satisfactorybasesfor Childress’s conclusions. Specifically, Central

States contends that Childress “provides no

summary of the data upon which he allegedly

relied, other than the Defendant’s medicalrecords, nor does Dr. Childress in his expert report specify which doctors or which medical

records he reviewed.” In fact, however, the

report’s conclusions are based on a review of

Brewer’s “entire” medical record, including

the “x-rays and MRI scans that document the

cervical disc pathology at several levels.” We

agree with the district court that, in light of

Childress’s stated examination of Brewer’s

entire medical record, it was unnecessary to

inventory the individual documents reviewed.

Third, Central States contends it was prejudiced by the report’s omission ofthe casesin

which Childress has testified within the last

four years. The report states that Childress

has “testified as an expert witness by way of

deposition on numerous occasions over the

last four years,” but omits specific cases in

violation of rule 26(a)(2)(B). 

An analysis of the four Sierra Club factors,

however,suggeststhe district court did not err

2

Shelak v. White Motor Co., 581 F.2d 1155,

1159 (5thCir. 1978)(citation omitted); DeMarines

v. KLM Royal Dutch Airlines, 580 F.2d 1193,

1201-02 (3d Cir. 1978).

3 Similarly, in concluding that Childress did not

testify outside the scope of his report, the district

court noted that Childress “did not testify as to any

new opinions. He simply expanded and developed

those opinions contained in his report.”
5

by refusing to exclude the testimony. Childress’s deposition was not obtained until almost a year after he submitted his report.

Despite the report’s reference to Childress’s

testimony in other cases, Central States never

moved to compel discovery.4 Information regarding Childress’s previoustestimonymay or

may not have been critical to Central States’s

case; the district court, however, was not obligated to grant a continuance or strike the testimony to accommodate Central States’s

inaction.

Finally, Central States contends the expert

report violated rule 26 because no exhibits

were attached. Childress’s testimony made

use of only three exhibits: his expert report, his

curriculum vitae, and his office notes. The

first two were part of the rule 26 disclosure.

As to the office notes, in light of Brewer’s

contention that Childress repeated the notes

“almost verbatim in his expert report,” Central

States does not explain how it was prejudiced

by their omission.

B.

The district court determined that DeSutter,

as a treating physician, was not required to

submit an expert report. Generally, a treating

physician is not considered an expert witness

if he testifies about observations based on personal knowledge. Davoll v. Webb, 194 F.3d

1116, 1138 (10th Cir. 1999). Northern District of Mississippi Local Rule 26.1(A)(2)(f)

provides: “A party shall designate treating

physicians as experts pursuant to this rule, but

is only required to provide the facts known

and the opinions held by the treating physician(s) and the summary of the grounds

therefor.” Accordingly, DeSutter’s designation as an expert witnessis not conclusive as

to his status.

Central States complainsthat DeSutter testified outside his capacity as a treating physician by making reference to other doctor’s

reports and medical records. DeSutter, a chiropractor, began treating Brewer in January

1999. According to his two-page report, he

has taken “yearly cervical x-rays, an x-ray of

Dr. Brewer’s right elbow, and performed the

following physical tests: Bikele’s sign; Froment’s sign; Inverted Radical Reflex; Radial

Reflex; Tinel sign; and, Grip Strength Test.”

The report also states that, as part of treatment, DeSutter has reviewed Brewer’s medical

records, including an MRI report signed by

Atkinson. 

In concluding that Brewer is totally disabled under the policy, however, the report

also states that “chiropractic heath care requires physical exertion and manipulation of a

patient’s neck and back and an average chiropractortypicallyperforms hundreds ofmanipulations during the course of one day.” At

deposition, DeSutter opined that Brewer was

disabled to work as a chiropractor; this opinion was based on DeSutter’s intimate familiarity with a chiropractor’s occupational duties. DeSutter also testified that he had reviewed previous medical records and ordered

an MRI report prepared in preparation for testimony; he testified as to his curriculum vitae,

prior experience, and publications. These ob4 Central States’s reliance on Sierra Club is

misplaced. In that case, the district court struck

defendants’ experts as a sanction for violating the

court’s accelerated discovery order. 73 F.3d at

569. Here, Central States alleges a rule 26(a)(2)

violation independent of any specific discovery

order. Notably, Sierra Club affirmed the court’s

striking of experts under an abuse of discretion

standard of review, the same standard we apply

here in affirming the court’s refusal to strike.
6

servations are consistent with expert witness

testimony, Davoll, 194 F.3d at 1138, so the

court erred in concluding that DeSutter’s testimony related solely to treatment.

As with Childress, the question becomes

whether DeSutter’s expert report satisfiesrule

26(a)(2)(B). Central States takes issue only

with DeSutter’s failure to attach extraneous

medical records and doctor’s notes to his report.5

 Yet, these records, which Central States

does not identify, chiefly relate to DeSutter’s

treatment of Brewer and not to his expert

opinion regarding whether Brewer was able to

perform the occupational duties of a chiropractor. It is no secret that physicians must

utilize a patient’smedicalrecord, including the

opinions of other doctors, in the course of

treatment.

Even where DeSutter’s testimony constituted opinion testimony requiring the attachment of Brewer’s medical records used as exhibits, Central States does not argue how it

was harmed by the omission. DeSutter’s report mentions various tests performed on

Brewer, including the 1998 MRI report signed

by Atkinson. Central States was aware that

DeSutter’s opinion was based, at least in part,

on tests performed by other doctors. With

over a year to obtain these documents, Central

States took no action. Therefore, the court

did not err by admitting DeSutter’stestimony.

III.

Central States argues there is insufficient

evidence to support judgment for Brewer. We

reverse findings of fact only where, after reviewing the record, we are left with a definite

and firm conviction that error has been committed. Reich v. Lancaster, 55 F.3d 1034,

1045 (5th Cir. 1995). The district court “has

the decided advantage of first hand experience

concerning the testimony and evidence presented at trial.” Id.

The court reasonably concluded that Brewer was unable to perform the substantial and

material occupational duties of a chiropractor

for twenty-four monthsfollowing his accident.

Childresstestified thatBrewer’s conditionprevents him from performing chiropractic manipulations for a sustained period of time; he

also testified that Brewer was unable to perform the occupational duties of any profession

for a minimum ofsix to eight weeks following

the 1996 accident. DeSutter testified that

Brewer could not return to work as a

chiropractor and that Brewer complained of

pain consistent with objective medical tests.

Samuel Cox, Central States’s vocational expert, and Dr. David Strauser, Brewer’s vocational expert,stated that Brewer may have difficulty bending, stooping, and reaching, making it difficult to work as a chiropractor.

Central States arguesthat the district court

erroneously ignored objective evidence to the

contrary. Relying on the vocational experts’

testimony that a chiropractor must occasionally lift twenty to fifty pounds, Central Statess

points to video surveillance tapes showing

Brewer, with the aid of his eight-year-old son,

lifting several fifty-eight-pound fencing gates.

The tape also shows Brewer lifting a bag of

dog food and fueling his vehicle several times.

5CentralStates’s brief providesrecord citations

but does not mention the specific doctor’s notes

and records omitted fromDeSutter’sreport. Based

on our review of the deposition testimony, outside

of Atkinson’s MRI report, which DeSutterreferred

to on direct examination, all other extraneous

reports and records were mentioned on crossexamination. As with Childress, DeSutter was not

expected to anticipate every possible question in

Central States’ cross-examination.
7

We have viewed the tapes and are not convinced they are probative. The evidence adduced at trial indicatesthat Brewer is unable to

perform his occupational duties on a sustained

basis, not that he is incapable of lifting heavy

objects for brief intervals. In any event,

Brewer’s son assisted Brewer by holding one

end of the gates while Brewer lifted and slid

them into the back of a truck. A person with

little physical ability could have performed any

of the light tasks displayed on the tapes. 

Similarly, the testimony of Sheriff’s Deputy

Kelly Hall does not undermine Brewer’s claim

to disability benefits. Hall testified that while

incarcerated, Brewer performed several

chiropracticmanipulations and adjustments on

her and her husband. Again, this testimony

shows, at most, that Brewer is capable of performing infrequent, non-repetitive tasks. As

the testimonyindicated,Brewer’s occupational

disability lies in his difficulty performing

chiropractic duties on a sustained basis.

IV.

Brewer appeals the denial of his motion to

add a counterclaim for bad faith. We review a

denial of leave to amend for abuse of discretion. Lowrey v. Texas A & M Univ. Sys.,

117 F.3d 242, 245 (5th Cir. 1997) (citation

omitted). The discretion of the district court

is limited by rule 15(a), which provides that

“leave shall be freely given when justice so

requires.” FED. R. CIV. P. 15(a).

The court denied Brewer’s motion as “untimely.” The original scheduling order set a

deadline of October 1, 2000, for amending all

pleadings. A month after the deadline had

passed, both parties filed a Joint Motion to

Amend Case Management Plan and Scheduling Order, proposing a new deadline for

amending all pleadingsto March 1, 2001. This

motion was denied. Following a continuance,

the court ordered that all discovery be

completed by July 13, 2001, and that “all motions other than motions in limine” be filed by

August 13, 2001.6 The court did not explicitly

set a new deadline for amending pleadings.

The discovery deadline was subsequently extended to August 13, 2001; no other deadlines

were affected by that order.

The court maintained that the deadline for

amending pleadings had remained October 1,

2000, all along, making Brewer’s motion untimely by over six months. Brewer contends

the court’s subsequent order that “all motions

other than motions in limine” be filed by August 13, 2001, included amendmentsto pleadings. Further, he argues that the bad faith

claim was developed only as a result of discovery conducted before the August 13

deadline.

Leave to amend should be freely given “[i]n

the absence of any apparent or declared

reason, such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to

the opposing party by virtue of allowance of

the amendment, futility ofthe amendment, etc.

. . .” Foman v. Davis, 371 U.S. 178, 182

(1962). The deadline extension, though re6 Central States’ brief erroneously states that

themagistrate judge’s order extended “the deadline

for all other Motions other than Motions in Limine

[sic] to July 13, 2001, and the Motion to Amend

Pleadings to March 1, 2001.” In fact, the order

makes no reference to a new deadline for amending

pleadings, nor is the date March 1, 2001, mentioned anywhere in that order. We do not appreciate counsel’s liberties, intentional or not, with the

record; such material misrepresentations are

subject to sanction.
8

quiring that all motions other than motions in

limine be filed by August 13, 2001, makes no

express mention of a change in the deadline for

amending pleadings. That deadline was

previously set at October 1, 2000; the parties’

joint November 2000 motion proposing to

extend the deadline to March 1, 2001, was

denied. Therefore, the court did not abuse its

discretion by denying, as six months tardy,

Brewer’s proposal to add a counterclaim for

bad faith.

Generally, parties should be granted leave

to amend their pleadings where discovery uncovers new information. But, we reject Brewer’s contention that the grounds for his bad

faith claim were developed only as a result of

the discovery immediately preceding the August 13, 2001, deadline. A claim for bad faith

in the payment of insurance benefits requires

that “(1) the insurer has no reasonable basis

for denying or delaying payment of the claim

or (2) the insurer knew or should have known

that there was no reasonable basis for denying

or delaying payment of the claim.” Texas

FarmersIns. Co. v. Soriano, 881 S.W.2d 312,

317 (Tex. 1994). 

Brewer contends that, as a result of discovery preceding the August 13, 2001, deadline, he learned that Central States’ in-house

medical expert was an internist without specific orthopedic experience and that critical

pages were missing from his claim file.7 The

basis of a bad faith claim, however, lies in the

reasonableness of Central States’ refusal to

pay benefits. This reasonableness (or lack

thereof) should have been apparent to Brewer

long before discovery conducted on the heels

of the August 13 deadline. 

The judgment in both appeals is

AFFIRMED.

7 Central States objected to the discovery of

these documents based on the attorney-client

privilege.