1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

KARMEN FAILE, 

Plaintiff,

v. CASE NO. 5:11-cv-41-RS-CJK

DILLARD’S INC., ESTEE LAUDER

TRAVEL RETAIL SERVICES, INC.,

THE ESTEE LAUDER COMPANIES, INC.,

And CLINIQUE SERVICES, LLC,

Defendants.

_________________________________/

ORDER

Before me is Defendants’ Joint Motion to Exclude Expert Testimony (Doc. 

17). Dillard’s, the remaining Defendant, seeks to exclude the testimony of medical 

expert witnesses identified by Plaintiff because she failed to make the disclosures 

required by Fed. R. Civ. P. 26(a)(2)(C). Additionally, Plaintiff did not supplement 

an interrogatory asking her to identify medical expert witnesses and to state the 

substance of their facts and opinions.

Fed. R. Civ. P. 26(a)(2)(C) states:

Witnesses Who Do Not Provide a Written Report. Unless otherwise 

stipulated or ordered by the court, if the witness is not required to provide a 

written report, this 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.

Case 5:11-cv-00041-RS-CJK Document 79 Filed 11/04/11 Page 1 of 3
2

This subdivision of Rule 26 was added in 2010 “to mandate summary 

disclosures of the opinions to be offered by expert witnesses who are not required 

to provide reports under Rule 26(a)(2)(B).” Fed. R. Civ. P. 26(a)(2)(C) (2010 

Amendments Committee Notes). “Frequent examples [of witnesses not required to 

submit a report under 26(a)(2)(B)] include physicians or other health care 

professionals and employees of a party who do not regularly provide expert 

testimony. Parties must identify such witnesses under Rule 26(a)(2)(A) and 

provide the disclosure required under Rule 26(a)(2)(C).” (Id.). 

In Plaintiff’s Amended Civil Rule 26(a)(2) Initial Disclosures she names 

five treating physicians and states they “may be an expert to the extent an opinion 

is rendered as to causation and damages.” (Doc.17, Ex. B). In her response to this 

motion, Plaintiff said, “In identifying that these witnesses were her treating 

physicians, there is the obvious implication that these witnesses, to the extent that 

they render opinions on the disclosed subjects, would be doing so based on their 

care, treatment, and diagnosis of the Plaintiff.” (Doc. 22). 

However, the rule does not require implications; it requires disclosures—

both of facts and opinions. Additionally, the Committee Notes to the 2010 

Amendments of Rule 26(a)(2)(C) also state that “[c]ourts must take care against 

requiring undue detail...” In this case, Plaintiff did not produce any detail. I 

certainly do not require an expert report as required by Rule 26(a)(2)(B), but this 

Case 5:11-cv-00041-RS-CJK Document 79 Filed 11/04/11 Page 2 of 3
3

new subsection of Rule 26 clearly mandates written disclosures of facts and 

opinions. Therefore, the disclosures are insufficient. Additionally, Plaintiff did 

not supplement the interrogatories as provided by Fed. R. Civ. P. 26(e).

According to Fed. R. Civ. P. 37, “if a party fails to provide information or 

identify a witness as required by Rule 26(a) or 26(e), 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.” (emphasis 

added). The lack of disclosures was not sufficiently justified. The Committee 

Notes state that too much detail in the disclosures is not required since these types 

of witnesses may be less likely to cooperate with counsel; however, that was not 

the case here. Additionally, Plaintiff offers no reasons why the deficiency was 

substantially justified.

That being said, the lack of disclosures and failure to update the

interrogatories are harmless. In this case, Defense counsel was able to fully depose 

the treating physicians about their facts and opinions, which Plaintiff uses to 

establish causation and damages. Therefore, the motion is DENIED. 

ORDERED on November 4, 2011.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

Case 5:11-cv-00041-RS-CJK Document 79 Filed 11/04/11 Page 3 of 3