HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION [48] TO EXCLUDE EXPERT TESTIMONY

BEFORE THE COURT is the Motion [48] to Exclude Expert Testimony and Opinions of Plaintiff's Expert Dr. Francisco J. Batlle, filed by Defendants Shemper Seafood Company, Inc. ("Shemper"), and Robert Martin ("Martin"). The Motion has been fully briefed. After due consideration of the record, the submissions on file, and relevant legal authority, the Court finds that Defendants' Motion [48] should be granted in part and denied in part.

I. BACKGROUND

A. Factual Background

This case arises from a motor vehicle accident that occurred on July 7, 2013, on Interstate Highway 10 in Harrison County, Mississippi. In that accident, Martin was driving a tractor-trailer in the scope of his employment with Shemper, and collided with a pickup truck in which Plaintiff John Claybrook ("Claybrook" or "Plaintiff") was a passenger. Approximately four weeks prior to this accident, Claybrook had suffered a heart attack. Dr. Zeeck Report [48-6]. Following the incident on July 7, 2013, Claybrook was transported to Garden Park Hospital in Gulfport, Mississippi. The ambulance records indicate that Claybrook complained of left shoulder pain and denied any neck or back pain. AMR Report [48-4] at 2. Claybrook reported that he had been in the hospital a month prior for a myocardial infarction and since that time, his left shoulder had been painful to move but was worse following the accident. Id.

According to Claybrook's deposition testimony, he first noticed neck pain many days or weeks following the accident. Pl. Dep. [48-3] at 90. Claybrook saw Dr. Steven Riley in September 2013 for neck pain, id. at 109, then saw Dr. Francisco J. Batlle ("Dr. Batlle") on March 24, 2014, Mar. 24, 2014 Batlle Report [48-8] at 1. Dr. Batlle is a neurological surgeon. Pl.'s Designation of Experts [48-1] at 1. Dr. Batlle's records reflect that Claybrook gave a history of injury to his neck stemming from the accident and described a delayed onset of severe neck pain, with pain radiating into his right shoulder. Mar. 24, 2014 Batlle Report [48-8] at 1. Dr. Batlle also noted that Claybrook had a history of diabetes and suffered a heart attack in June 2013. Id. Dr. Batlle recommended neck surgery, which Claybrook declined at the time. Id. at 3.

Claybrook underwent lower back surgery a year later in July 2015 at the Laser Spine Institute in Tampa, Florida. Laser Spine Report [48-9]. Claybrook was then involved in another motor vehicle accident on September 1, 2015, Pl. Dep. [48-3] at 134, and returned to Dr. Batlle on February 11, 2016, Feb. 11, 2016 Batlle Report [48-8] at 5. Dr. Batlle reported that Claybrook complained of severe low back pain radiating into his legs. Id. Dr. Batlle noted that Claybrook had undergone surgery, which improved his condition until the accident on September 1, 2015, aggravated his pain. Id. B. Procedural History

Claybrook filed a Complaint [1] in this Court on June 3, 2016, advancing claims for negligence against Martin and Shemper. The Complaint alleged that Claybrook sustained permanent injuries to his neck and lower back that will require future medical care as a result of Defendants' negligence. Compl. [3] at 5.

On October 25, 2017, Claybrook designated Dr. Batlle as an expert witness, asserting that "Dr. Batlle is a neurological surgeon with Wellspine P.A., and is a treating physician." Pl.'s Designation of Experts [48-1] at 1. Neither a written report from Dr. Battle nor his curriculum vitae were submitted with the expert designation. Claybrook's designation proffered that Dr. Batlle would testify that Claybrook's injuries were caused and/or aggravated by the July 7, 2013 accident, and would further opine regarding the reasonableness of all of Claybrook's medical expenses. Id. Moreover, Dr. Batlle is expected to testify that Claybrook will require future medical care and expenses, and will opine as to Claybrook's future medical costs. Id. The expert designation stated that Dr. Batlle's opinions are based upon a review of all medical records and his own examinations of Claybrook. Id. at 2.

Dr. Batlle was deposed on March 20, 2018. Batlle Dep. [48-2]. He testified that, from the time he first saw Claybrook until the day of the deposition, he had not read the records from any of the other medical providers who had treated Claybrook. Id. at 44-45.

On April 20, 2018, Defendants filed their Motion [48] to Exclude Expert Testimony and Opinions of Plaintiff's Expert Dr. Francisco J. Batlle. Defendants request the Court "exclude certain opinions offered by [Dr. Batlle] as to the cause of [Claybrook's] medical condition and the reasonableness/necessity of treatment by other providers." Mot. [48] at 12. Defendants contend that such opinions are unreliable and unsupported by actual knowledge of Claybrook's medical treatment or history, as Dr. Batlle has not reviewed any medical records from other providers. Defs.' Mem. [51] at 6-8.

Claybrook counters that Dr. Batlle is qualified to give expert testimony because his opinions are supported by established scientific methods and sufficient facts and data, Pl.'s Mem. [54] at 2-3, and are based on his multiple examinations of Clabyrook and review of Claybrook's radiology tests, id. at 3. According to Claybrook, Defendants' challenges go only to the weight and credibility of Dr. Batlle's opinions, not their admissibility. Id. at 4.

Defendants clarify in their Rebuttal that they do not contend Dr. Batlle is unqualified to render opinions concerning his own diagnosis or treatment of Claybrook, but rather, they seek only to exclude "opinions as to causation of Plaintiff's cervical and lumbar conditions, plus opinions concerning the reasonableness and legitimacy of treatment provided to Plaintiff by other physicians." Rebuttal [57] at 1-2.

II. DISCUSSION

Federal Rule of Civil Procedure 26 distinguishes between experts who are "retained or specially employed to provide expert testimony in the case," under Rule 26(a)(2)(B), and those who are not under Rule 26(a)(2)(C). Experts who are "retained or specially employed to provide expert testimony" are required to submit a written report that contains, inter alia, a complete statement of all opinions the witness will express and the basis for them, the facts or data considered by the witness in forming the opinions, the witness's qualifications (including a list of all publications authored in the previous ten years), a list of all other cases in the previous four years in which the witness has testified as an expert at trial or by deposition, and a statement of the compensation to be paid to the expert. Fed. R. Civ. P. 26(a)(2)(B). None of that information has been supplied by Dr. Batlle.

Non-retained experts are not required to provide a written report. Fed. R. Civ. P. 26(a)(2)(C). One type of expert that typically falls into this category is a treating physician. Parker v. NGM Ins. Co., No. 15-2123, 2016 WL 3198613, at *2 (E.D. La. June 9, 2016). "A number of courts determined that a treating physician may offer testimony as a non-retained expert if the testimony is confined to those facts or data the physician learned during actual treatment of the plaintiff." Rea v. Wis. Coach Lines, Inc., No. 12-1252, 2014 WL 4981803, at *2 (E.D. La. Oct. 3, 2014). A treating physician's testimony is limited to opinions acquired "based on the physician's personal knowledge of the examination, diagnosis and treatment of a patient and not from information acquired from outside sources." Parker, 2016 WL 3198613, at *2 (quoting Mangla v. Univ. of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996)). On the other hand, "where a physician's testimony 'relies on sources other than those utilized in treatment, courts have found that the treating physician acts more like an expert and must submit a report under Rule 26(a)(2)(B).'" Id. (quoting Rea, 2014 WL 4981803, at *2).

Claybrook's own Designation of Experts states that Dr. Batlle "is a treating physician." Pl.'s Designation of Experts [48-1] at 1. Claybrook has not submitted an expert written report from Dr. Batlle, disclosing all of the information required by Rule 26(a)(2)(B). Because Dr. Batlle does not qualify as a specially retained expert, but instead as a treating physician or non-retained expert, his opinions will be limited to those of a treating physician.

Here, Defendants seek to exclude Dr. Batlle's opinions as to the reasonableness and cost of treatment by other providers. As a non-retained, treating physician expert, such opinions are improper testimony by a treating physician, and should be excluded. Dr. Battle is prohibited from opining on this subject. Defendants also seek to exclude Dr. Batlle's opinions as to causation of Claybrook's cervical and lumbar conditions. Dr. Batlle's testimony on this subject will be restricted to opinions based on Dr. Batlle's records and his personal examination and treatment of Claybrook. Dr. Batlle's opinions that were prepared in anticipation of litigation or that relied on medical records derived from other medical providers will be excluded. Defendants' Motion [48] will be granted in part and denied in part.

III. CONCLUSION

IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendants Shemper Seafood Company, Inc., and Robert Martin's Motion [48] to Exclude Expert Testimony and Opinions of Plaintiff's Expert Dr. Francisco J. Batlle is GRANTED IN PART AND DENIED IN PART. Dr. Batlle's testimony will be limited to the facts and opinions contained in Dr. Batlle's own records and learned during Dr. Batlle's personal examination and treatment of Plaintiff John Claybrook.

SO ORDERED AND ADJUDGED, this the 19th day of July, 2018.

/s/_________

HALIL SULEYMAN OZERDEN

UNITED STATES DISTRICT JUDGE