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

_______________



### C ENTRAL 

### S TATES 

### H EALTH 

### & L IFE 

### C OMPANY OF 

### O MAHA



### , N EBRASKA



### ,

Plaintiff-Appellant,

VERSUS



### H ERBERT 

### L

EON 

### B REWER



### , III,

Defendant-Appellee.

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

_______________

No. 02-60718

Summary Calendar

_______________



### C ENTRAL 

### S TATES 

### H EALTH 

### & L IFE 

### C OMPANY OF 

### O MAHA



### , N EBRASKA



### ,

Plaintiff-Appellee,

VERSUS



### H ERBERT 

### L

EON 

### B REWER



### , 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 H IGGINBOTHAM , S MITH , and

C LEMENT , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: *

Central Sta t es Health & Life Company of

Omaha, Nebraska (“Central States”), appeals

a declaratory ju dgment finding Herbert Leon

Brewer, III, continuously disabled for a period

of twent y -four months and therefore entitled

to benefits under a Central States disabilit y insurance policy. Brewer appeals the denial o f

his motion to add a counterclaim for bad faith.

Finding no reversible error, we affirm.

I.

In January 1999, Brew er, a chi ropractor,

was issued a Central States disabil it y policy

entitling him to benefits in the event of “ total

disability,” defined by the policy as

[the] inabilit y, as a result of sickness or

injury to perform the substantial and material duties of your principal occupation

for the firs t 24 months of continuous

disabilit y. After the first 24 months of

continuous disabilit y, t o tal disability

means the inability to engage in any occupation for which you are qualified

by reason of education, training or experience.

The policy also provided Brewer with benefits

in the event he became “partia lly disabled,”

defined as “the inabilit y, as a result of sickness

or injury, to perform one or more of the main

duties of your principal occupation, or the inabilit y to p erfo rm those duties on a full-time

basis.”

In 1996, while incar cerated, 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 disabilit y benefits, submitting medic al records from three different

doctors, including his treating physi cian, Dr.

Alan Pritchard, who stated that Brewer was

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

In August 1999, Ce n tral States denied

Brewer’s claim, then filed a declaratory judgme n t action seeking a determination that

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

tri al, the district court denied Central States’

* Pu rsuant to 5 T H C IR

. R. 47.5, the court has

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

circumstances set forth in 5 TH C IR

. R. 47.5.4. 1 Pritchard later retrac t ed this opinion but still

concluded that additional testing was neede d to

determine the extent of Brewer’s disability.3

motion to strike the designation of experts Dr.

Rommell Childress 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 total l y disabled

for a period of twenty-four months beginning

on the date of

t he accident, and partially disabled thereafter.

II.

Central States cont ends the district court

erred by refusing to strike Childres s and DeSutte r as experts for their failure to comply

with F ED

. R. C IV

. P. 26(a)(2)(B). The refusal

to exclude or limit testimony is reviewed for

abuse of discretion. B lack 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.” S ierra 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 i n det ermining whether an expert report is s ufficiently detailed and complete. M ichaels v.

Avitech, Inc.

, 202 F.3d 746, 750 (5th C ir.

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

reports contain

a complete statement of all opinions to

be expressed and the basis a n d reasons

therefor; the data or o ther information

considered by the witness in forming the

opinions; any e xhibits to be used as a

summary of or support for the opinions;

the quali fications of the witness,

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

paid for the study and te st imony; and a

list in g of any other cases in which the

witness has testified as an expert at trial or by deposition w i thin the preceding

four years.

F ED

. R. C IV

. P. 26(a)(2)(B). Central States

argues that Childress’s five page report does

not meet fou r of Rule 26’s requirements; the

report allegedly does not c o ntain a complete

st at ement 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 an y

exhibits.

Even where an expert’s report fails to meet

the requirements of rule 26, his testimony

should be excluded only after an examination

o f 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 possibilit y o f curing such prejudice by granting a

continuance; and (4) the importance of the

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

A.

Childress’s report opi nes that, following the

accident, Brewer wa s “t otally disabled for a

minimum of six to eight weeks from doing his

normal occupation or any occupa tion.” The

report a lso states that Brewer’s medical

condition currently precludes him f ro m funct i oning as a chiropractor on a full-t ime basis.

At his depositio n, 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 li t erally incapacitate him as far as having increased neck

and arm symptoms . . . .”

Noticeably, the report does not expressly

state whether Brewer was co ntinuously disabled for a period of twenty-four months foll owing the accident 

### SS

that 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 in co mplete

expert report.

The report’s statement that Brewer was unable to perform h is occupation or any occupation for a minimu m of six to eight weeks

following the accident is not inconsistent with

Childress’s deposition testimony that Brewer

was to t ally disabled for twenty-four months.

For one, the pol

icy defines total disability as

the inabilit

y to perform only the cl aimant’s

principal occupation for a twenty-four-month

p eriod. Second, the expert report states that

Brewer was unable to engage i n any occupatio n for a m inimum of six to eight weeks;

this does not rule out the possibility of a longer

disabilit y.

In any event, and absent u n fair surprise or

bad faith, an expert may testify as to matters

outsid e his report if the matter is within his

expertise. 2 The test is not whether the expert

repo rt covers every conceivable question of

cross-examination, but whether it provides

sufficient detail such that the opposing party is

not surprised.

Central States cannot claim it was surprised

by Childress’s deposition testimony. The report’s conclusion that Brewer is currently unable to work full-t ime 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 accid ent. 3 Indeed, the report concludes that Brewer was unable to perform any

j ob for a period of six to eight weeks ther e

after. Not surprisingly, Central States does

not explain how it was prejudiced.

Second, Central States argu e s that the report fails to provide satisfactory bases for Childress’s co nclusions. Specifically, Central

States contends that Chi ldress “provides no

summary of the data upon which he allegedly

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

r ecords 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 distric t court that, i n l i ght of

Childress’s s t ated examination of Brewer’s

entire medical rec ord, it was unnecessary to

inventory the individual documents reviewed.

Third, Central States contends it was prejudiced by the report’s omission of the cases in

which Childress has t est ified within the last

four years. The report states that Childress

ha s “testified as an expert witness by way of

deposition on numerous occasions over the

last four years,” but omits sp ecific cases in

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

An analysis of the four Sierra Club factors,

however, suggests the district court did not err

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

1159 (5th Cir. 1978) (ci tation 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 test imo ny. Childress’s deposition was not obta ined until almost a ye a r after he submitted his report.

Despite the re po rt ’s reference to Childress’s

testimony in other cases, Central States never

moved to compel discovery. 4 Information regarding Childress’s previous testimony may 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 viol at ed 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 t w o were part of the rule 26 disclosure.

As to th e o ffice notes, in light of Brewer’s

contention that Childre ss 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 determ

i ned that DeSutter,

as a treating physician, was not require d to

submit an expert report. Generally, a treating

physician is not c o nsidered an expert witness

if he testifies about observations based on personal knowledge. D avoll v. Webb

, 194 F.3d 1116, 1138 (10th Cir . 1999). Northern Di st r ict of Mississippi Local Rule 26.1(A)(2)(f)

provides: “A party shall designate treating

physicians as experts pursuant to this rule, but

is o nly required to provide the facts known

and the opinions held by the treating physician(s) a nd t he summary of the grounds

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

to his status.

Central States complains that DeSutter test ified outside his capacity as a treating phys ician by making reference to other doctor’s

reports and medical records. DeSutter, a chiro p ractor, began treating Brewer in January

1999. According to his two-page report, he

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

Dr. Bre wer’s right elbow, and performed the

following physical tests: Bikele’s sign; Froment’s sign; Inve rt ed Radical Reflex; Radial

Reflex; Tin el sign; and, Grip Strength Test.”

The report also states that, as part of treatment, DeSutter has revi

ewed Brewer’s medical

recor ds, including an MRI report signed by

Atkinson.

In conclud ing that Brewer is totally disabled under the policy, however, the r e port

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

p atient’s neck and back and an average chiropractor typically performs hundreds of manipulations during the course of one d ay.” At

deposition, DeSutter opined that Brewer was

disabled to work as a chiropractor; t his 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 Sie rra Club i s

misplaced. In that case, the district court struck

defendants’ experts as a sanction for violating the

court’s accelerated di scovery order. 73 F.3d at

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

vio la tion independent of any specific discovery

order. Notably, Sierra Club affirmed the court’s

striking of experts under an abuse of discretion

s tandard of review, the same standard we apply

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

servations are co nsistent 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 qu estion becomes

whether DeSutter’s expert report satisfies rule

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 identi fy, chiefly relate to DeSutter’s

treatment of Brewer and n ot to hi s expert

opinion regarding whether Brewer was able to

perform the occupational duties of a c hirop ractor. It is no secret that physicians must

utilize a patient’s medical record, including the

o pinions of other doctors, in the course of

treatment.

Even where De Sut ter’s testimony constituted opinion testimony req uiring the attachment of Brewer’s medical records used as exhibits, C e ntral States does not argue how it

was harmed by the omission. DeSutter’s report mentions various t ests performed on

Brewer, including the 1998 MRI report signed

by Atkinson. Central Stat es was aware that

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

on tests performed by other doc tors. Wi th

over a year to obtain these documents, Central

States took no action. Therefore, the court

did not err by admitting DeSutter’s testimony. III.

Central S t ates argues there is insufficient

evidence to support judgment for Brewer. We

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

and firm conviction that er ro r has been committed. R eich v. Lancaster

, 55 F.3d 1034,

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

the decided advantage of first hand experience

concerning the test imo ny and evidence presented at trial.” Id.

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

material occupational duties of a chiropractor

for twenty-four months following his accident.

Childress testified that Brewer’s condition prevents h im from performing chiropractic manipulations for a sustained p erio d of time; he

also testified that Brewer was unable to p e rform the occupational duties of any profession

for a minimum of six to eight weeks following

t he 1996 accident. DeSutter testified that

Brewer could not return to work as a

chiropractor and that Brewer complained of

pain consistent with objective medic al tests.

Samuel Cox, Central St at es’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 argues that the district court

erroneously ignored objective evidence to the

contrary. Relying on the vo cat ional experts’

testimony that a chiropractor must oc casionally lift twenty to fift

y pounds, Central Statess

points to video surveillance tape s showing

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

lifting several fifty-eight-pound fencing gates.

The tape also shows Brewer lift ing a bag of

dog food and fueling his vehicle several times. 5 Central States’s brief provides record citations

but does not mention the specific doctor’s notes

and records omitted from DeSutter’s report. Based

on our review of the deposition testimony, outside

of Atkinson’s MRI report, which DeSutter referred

to on direct examina tion, all other extraneous

reports and records were me n tioned on crossexamination. As with Childress, DeSutter was not

expected to anticipate every possible ques tion in

Central States’ cross-examination.7

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

perform his occupational duties on a sustained

basis, not that he is incapable of lifting heavy

o bjects for brief intervals. In any event

, Brewer’s son assisted Brewer by holding one

end of the gates while Br ewer lifted and slid

them into the back of a truck. A person with

little physical abilit

y 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

chiropractic manipulations and adjustments on

her and her husband. Again, this testimony

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

the testimony indicated, Brewer’s occupati onal

disabilit y lies in his difficult

y perf o rming

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 leav e to amend for abuse of discretion. L owrey v. Texas A & M Univ. Sys.

, 117 F.3d 242, 245 (5th Cir. 1997) (c i tati on

omitted). The discret io n of the district court

i s limited by rule 15(a), which provides that

“leave shall be freely give n when justice so

requires.” F ED

. R. C IV

. 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

Amen d Case Management Plan and Scheduling Order, proposing a n ew deadline for

amending all pleadings to 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 sub sequently extended to August 13, 2001; no other deadlines

were affected by that order.

The court maintained that the deadline for

amending pleadings had remained Octo b er 1,

2000, all along, making Brewer’s motionunt imely by ove r six months. Brewer contends

the court’s subsequent order that “all motions

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

claim was developed only as a r esult of di scovery 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 o p posing party by virtue of allowance of

the amendment, futility of the amendment, etc.

. . .” F oman v. Davis

, 371 U.S. 178, 182

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

the magistrate 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 Mar c h 1, 2001.” In fact, the order

makes no reference to a new deadline for amending

pleadings, n or 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 No vember 2000 motion proposing to

extend the deadli ne to March 1, 2001, was

denied. Therefore, the court did not abuse its

d iscretion 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 im

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

in the paymen t o f insurance benefits requires

that “(1) the insurer has no reasonable basis

f or 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 p ayment of the claim.” T exas

Farmers Ins. 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 Cen t ral States’ in-house

medical expe rt was an internist without specific orthopedic experience and that critical

pages were missing from his c l aim 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.