UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Scott McDaniel

v. Civil No. 04-cv-311-PB

Skillsoft Corporation

O R D E R

 Defendant moves to preclude the introduction of expert

testimony or reports by plaintiff. Plaintiff objects. 

Discussion

In this workplace discrimination case, plaintiff has a claim

for intentional infliction of emotional distress. Defendant

correctly points out that plaintiff was required to disclose “all

experts” on or before May 1, 2005 and to date has disclosed none. 

To be more precise, plaintiff has disclosed no retained experts

as required by Fed. R. Civ. P. 26(a)(2)(B) nor any unretained

expert who will present expert testimony within the meaning of

Fed. R. Evid. 702, 703 and 705; that is, opinion evidence as

required by Rule 26(a)(2)(A). 

Plaintiff responded by indicating that while he does plan to

call his treating physician(s), psychiatrist(s) and/or

psychologist(s) regarding his treatment and to authenticate

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records; they will not offer Rule 702 opinion evidence. 

Plaintiff says his treating physicians “may comment with respect

to the Defendant’s expert report . . . .” It is not clear what

the nature of their “comment” might be or how it would be

admissible if not expert opinion. 

Plaintiff appears to rely on Gomez v. Rivera Rodriguez, 344

F.3d 103, 113 (1st Cir. 2003) for the proposition that treating

physicians do not need to be disclosed under Rule 26(a)(2)(A). A

careful reading of Gomez indicates that that proposition is too

broad. As Judge Selya points out, the “application of Rule 26's

expert witness requirements is not the status of the witness,

but, rather, the essence of the proffered testimony. Patel v.

Gayes, 984 F.2d 214, 218 (7th Cir. 1993).” Id. What Gomez does

hold is that “a party need not identify a witness as an expert so

long as the witness played a personal role in the unfolding of

the events at issue and the anticipated questioning seeks only to

elicit the witness’s knowledge of those events.” Id. at 113-114. 

However, the requirements of Rule 26(a)(2) clearly apply if

Rule 702 opinions are to be expressed. If the opinions of

unretained experts are involved, the disclosure is a Rule

26(a)(2)(A) disclosure, but if they are retained to express an

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opinion Rule 26(a)(2)(B) applies. Sprague v. Liberty Mutual

Insurance Co., 177 F.R.D. 78, 81 (D.N.H. 1998). Treating

physicians, depending on the “essence” of their testimony may

require (1) no disclosure (pure fact witness); (2) Rule

26(a)(2)(A) disclosure (treatment plus opinions based upon or

part of treatment); or (3) Rule 26(a)(2)(B) disclosure (treating

physician hired to give a non-treatment related opinion - work

capacity, etc.). 

Here, apparently, plaintiff does not intend to offer opinion

evidence. The time for expert disclosure is long past. 

Defendant is entitled to protection from a surprise opinion. 

Defendant’s motion (document no. 12) is granted. Plaintiff is

precluded from offering Rule 702, 703 or 705 testimony. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: August 4, 2005

cc: Elizabeth A. Bailey, Esq.

 Christopher Cole, Esq.

 Mary Notaris, Esq.

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