1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

BEVERLY THOMAS, et al., ) 

Plaintiffs, ) 

 ) CIVIL ACTION NO 08-0155-KD-N 

vs. ) 

 ) 

AUSTAL, USA, L.LC., ) 

Defendant. ) 

 ORDER 

This matter is before the Court on Defendant Austal, USA, LLC’s “Objection and Motion to 

Strike Plaintiff Beverly Thomas’s Expert Witness” (Doc. 548), Plaintiff Beverly Thomas’ 

Opposition (Doc. 564), Defendant Austal’s Reply (Doc. 567), Plaintiff’s Supplemental Rule 

26(a)(2)(C) disclosures regarding Elizabeth Andrew, MS, LPC (Doc. 580) and Defendant Austal’s 

Supplemental Objection (Doc. 597). 

Defendant Austal, U.S.A., L.L.C. (“Austal”) moves to strike the testimony of licensed 

professional counselor Elizabeth Andrew (“Andrew”), a trial witness for Plaintiff Beverly Thomas 

(“Plaintiff”). As grounds, Austal contends that: 1) Plaintiff untimely disclosed Andrew as an expert 

in this case and did not file the requisite expert report; and 2) Andrew is not a medical doctor, such 

that her diagnosis of Plaintiff as suffering from post–traumatic stress disorder (“PTSD”) is 

inadmissible. 

 Federal Rule of Civil Procedure 37(c)(1) states: “If a party fails to provide information or 

identify a witness as required by Rule 26(a) or (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.” Fed.R.Civ.P 37(c)(1). “The district court has broad discretion to admit or 

Case 1:08-cv-00155-KD-N Document 630 Filed 12/20/11 Page 1 of 3
2 

exclude untimely submissions under this rule.” Lambert v. Monaco Coach Corp., 2005 WL 

5961075, *1 (M.D. Fla. Feb. 10, 2005). 

 As to Austal’s first contention, Andrew is not Plaintiff’s expert and thus no Rule 26 expert 

report was required. “By its own terms, Rule 26(a)(2)(B) applies only to a witness “who is retained 

or specially employed to provide expert testimony in the case or whose duties as an employee of the 

party regularly involve giving expert testimony[]” [--] “[a] treating physician...can be deposed or 

called to testify at trial without any requirement for a written report.” Fed.R.Civ.P. 26(a)(2)(B) 

advisory committee’s note. 

Thus, as Plaintiff’s counselor, Andrew may offer relevant factual testimony of which she has 

personal knowledge. For instance, Andrew may testify regarding her personal observation of 

plaintiff and the course of treatment provided if deemed relevant to the case. 

 Plaintiff also states that Andrew will testify that she diagnosed Plaintiff with PTSD. Plaintiff 

asserts that Andrew is qualified to make the diagnosis “as long as it is reviewed by a doctor” and 

“this particular [PTSD] diagnosis [of Plaintiff] was reviewed by the Psychiatrist that supervised 

Andrew at AltaPointe Health Systems[]” (Doc. 580 at 3). Plaintiff has provided no case law in 

support of this assertion and/or any evidentiary support regarding this “review.” Despite Plaintiff’s 

contention, Andrew is not a medical doctor or psychologist, rather she is a licensed professional 

counselor (“LPC”), and the case law supports a contrary finding under such circumstances. As 

explained in Crocker v. City of Fairhope, 2005 WL 6217200 (S.D. Ala. May 4, 2005), in “every 

known Eleventh Circuit case in which PTSD was diagnosed, the diagnosis was made by a medical 

doctor or psychologist[]...a wealth of authority rejects the idea that an LPC is qualified to render 

such an opinion.” Crocker, 2005 WL 6217200, *1. As such, Andrew may not testify that she 

Case 1:08-cv-00155-KD-N Document 630 Filed 12/20/11 Page 2 of 3
3 

“diagnosed Plaintiff with PTSD.” 

Accordingly, it is ORDERED that Austal’s motion to strike (Doc. 548) is DENIED as to 

Andrew’s proposed testimony regarding what she observed and did in the course of Plaintiff’s 

treatment and GRANTED as to Andrew’s proposed testimony that she “diagnosed Plaintiff with 

PTSD.” 

DONE and ORDERED this the 20th day of December 2011.

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES DISTRICT JUDGE 

Case 1:08-cv-00155-KD-N Document 630 Filed 12/20/11 Page 3 of 3