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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

EARATON ADAMS, 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 Plaintiffs’ Expert Witness” (Doc. 547), Plaintiffs’ Opposition (Doc. 563), Defendant Austal’s 

Reply (Doc. 566), Plaintiffs’ Supplemental Disclosures (Doc. 581) and Defendant Austal’s 

Supplemental Objection (Doc. 598).

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

Psychologist Daniel Koch of Mobile Psychological Associates (“Dr. Koch”), as a trial witness “in 

support of Plaintiff’s claims for mental anguish.” As grounds, Austal contends that Plaintiffs 

untimely disclosed Dr. Koch as an expert in this case and did not file the requisite expert report 

pursuant to Rule 26. Dr. Koch was Jermaine Roberson’s treating physician. 

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) (emphasis added). “The district court has broad 

discretion to admit or exclude untimely submissions under this rule.” Lambert v. Monaco Coach 

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

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A treating physician is not required to provide an expert report in order to testify as an 

expert. 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. Plaintiffs have not retained Dr. Koch as an expert and thus, no Rule 26 expert 

report was required. 

However, a treating physician is required to provide an expert disclosure (i.e., a summary of 

the facts and opinions to which the witness is expected to testify) if they are going to testify as an 

expert under Fed.R.Evid.702. Fed.R.Civ.P. 26(a)(2)(C). Such disclosure is in addition to the 

information provided in initial disclosures. Fed.R.Civ.P. 26(a)(2)(A). 

In this case, expert disclosures were due August 16, 2010. Plaintiffs do not contend that they 

provided a summary as required by the date required; rather Plaintiffs contend that Austal was aware 

of Dr. Koch from a very early stage due to their initial disclosures and the fact that Austal’s Human 

Resource Department was given notice of the treatment that Jermaine Roberson was receiving from 

Dr. Koch. This disclosure does not satisfy the requirement of a summary of the facts and opinions to 

which the witness is expected to testify. Thus, Dr. Koch will not be allowed to testify as an expert. 

However, Dr. Koch will be allowed to testify as a lay witness. As Plaintiff Jermaine 

Roberson’s treating physician, Dr. Koch may offer relevant factual testimony of which he has 

personal knowledge regarding the care and treatment given to Jermaine Roberson. See United States 

v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005). 

 Austal takes issue with Dr. Koch’s characterization as a fact or lay witness, given that 

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Plaintiffs assert that he will testify as to “whether the injuries for which he treated the plaintiff 

[Jermaine Roberson] can be causally related to the claim[]” (i.e., causation). Whether Dr. Koch’s 

testimony is admissible as lay testimony is contingent on whether the determination of causation was 

necessary for treatment and the doctor's opinion is helpful to a clear understanding of his/her 

testimony. Phillips v. American Honda Motor Co., Inc., 438 F. Supp. 2d 1328, 1330 (S.D. Ala. 

2006) (citing Henderson, 409 F.3d at 1300). The court is unable to make that determination without 

knowing the substance of Dr. Koch’s testimony. However, it would appear at this juncture that the 

inquiry of “whether the injuries for which [Dr. Koch] treated the plaintiff can be causally related to 

the claim” is a hypothetical inquiry which would fall under expert as opposed to lay testimony. 

Henderson, 409 F.3d at 1300. 

Accordingly, it is ORDERED that Austal’s motion to strike (Doc. 547) is DENIED at this 

time. However, Plaintiffs are prohibited from discussing any expected testimony from Dr. Koch on 

causation in his opening statement.1

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

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES DISTRICT JUDGE 

 

1 As an aside, Plaintiffs’ statement that Austal “merely files this present motion to strike to attempt to make up for 

its own apparent lack of preparation” is unnecessary and reflects poorly on our profession. Counsel for all parties 

should refrain from making such comments in the future and should attempt to foster a courteous relationship in their 

pleadings, as well as in the courtroom. 

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