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1 of 3 DOCUMENTS
RICK and PAT ARNESON, Plaintiffs, vs. MICHIGAN TISSUE BANK, SPARROW
HOSPITAL, and JOHN DOES I-IV, Defendants.
CAUSE NO. CV 05-189-M-JCL
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA,
MISSOULA DIVISION
2007 U.S. Dist. LEXIS 95918

March 26, 2007, Decided

March 26, 2007, Filed
PRIOR HISTORY: Arneson v. Mich. Tissue Bank, 2007 U.S. Dist. LEXIS 95917 (D. Mont., Mar. 26, 2007)
CORE TERMS: methodology, expert witnesses, causation, tissue, scientific, treating physicians', allograft, expert
witness, infection, pain, expert testimony, scientifically, testifying, bone, expert report, differential diagnosis, reliability,
disclosure, reliable, infectious, admissibility, rebuttal, medical records, qualifications, complications, neuropathic,
osteomyelitis, intervening, conclusory, doctor's
COUNSEL: [*1] For Rick Arneson, Pat Arneson, Plaintiffs: Douglas A. Buxbaum, LEAD ATTORNEY, BUXBAUM
DIX & DAUE, Missoula, MT; Michael D. Cok, LEAD ATTORNEY, COK WHEAT KINZLER, Bozeman, MT; John
M. Fitzpatrick, BUXBAUM DAUE & FITZPATRICK, Missoula, MT.
For Michigan Tissue Bank, Sparrow Hospital, Defendants: Charles E. McNeil, LEAD ATTORNEY, David C. Berkoff,
LEAD ATTORNEY, GARLINGTON, LOHN & ROBINSON, PLLP, Missoula, MT.
JUDGES: Jeremiah C. Lynch, United States Magistrate Judge.
OPINION BY: Jeremiah C. Lynch
OPINION
ORDER
I. INTRODUCTION
This lawsuit stems from injuries allegedly sustained by Plaintiff Rick Arneson as a result of various infections,
osteomyelitis and osteonecrosis which he contends were caused by a bone allograft used in a dental implant surgery
performed upon Arneson by his dentist. The Defendants are the entities which supplied the allograft to Arneson's dentist
for implantation.
Pending before the Court are the Defendants' Motions in Limine seeking to exclude from trial the opinion testimony of
Plaintiffs' expert witnesses. The parties have briefed the issues, and the Court will address each issue separately.
II. DISCUSSION
A. Defendants' Motion to Exclude John Pullman, M.D.

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2007 U.S. Dist. LEXIS 95918, *1

Defendants move to exclude Plaintiffs' [*2] expert witness, John Pullman, M.D., from testifying in this case. They
contend his expert report and opinions lack sufficient factual basis or scientific reliability and, therefore, are not
admissible under Fed. R. Evid. 702 and Daubert, infra. Additionally, Defendants contend Dr. Pullman's report is
inadequate and does not sufficiently set forth all of the information as required by Fed. R. Civ. P. 26(a)(2)(B). Plaintiffs
resist all aspects of the motion.
1. Reliability and Admissibility of Dr. Pullman's Opinions and Conclusions Under Daubert
Defendants move to exclude Dr. Pullman from testifying as to his various opinions on the grounds that his report wholly
fails to describe any legally acceptable and scientifically reliable methodology which he employed to form his opinions.
Specifically, Defendants contend the law applicable to medical liability cases require Dr. Pullman to employ a
"differential diagnosis" methodology to support his opinions.
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert opinion testimony and provides as
follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to [*3] determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The United States Supreme Court requires that expert testimony must be both relevant and reliable. Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Ultimately, rulings on the
admissibility of expert testimony under Fed. R. Evid. 702 are in the sound discretion of the trial court. General Electric
Co. v. Joiner, 522 U.S. 136, 142, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997).
In determining whether testimony is relevant and reliable the Court must engage in an assessment
of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue.

Daubert, at 592-93. There are various factors which bear on the issue of whether certain testimony is sufficiently
reliable, but the list of factors is not exclusive [*4] and the district court has "the same broad latitude when it decides
how to determine reliability as it enjoys in respect to its ultimate reliability determination." Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 142, 119 S. Ct. 1167, 143 L. Ed. 2d 238 & 152 (1999). Daubert merely requires that all
expert testimony must satisfy a "standard of evidentiary reliability". Id. at 149 (quoting Daubert, 509 U.S. at 590). The
requirement
is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

Kumho Tire, at 152, 119 S. Ct. at 1176.

The focus of the Court's inquiry "must be on the principles and methodology underlying an expert's testimony, not on
the conclusions." Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998) (citing Daubert, 509 U.S. at 595),
cert. denied 526 U.S. 1099, 119 S. Ct. 1577, 143 L. Ed. 2d 672 (1999). "Scientific evidence is deemed reliable if the
principles and methodology used by an expert are grounded in the methods of science." Clausen v. M/V New Carissa,
339 F.3d 1049, 1056 (9th Cir. 2003) (citing Daubert, at 592-95). A court, therefore, "may reject [*5] expert testimony
where the 'analytical gap' between the data and the expert's conclusion is too great." Kennedy, 116 F.3d at 1228.
A significant preliminary consideration for the Court is whether the experts' testimony is "about matters growing
naturally and directly out of research they have conducted independent of the litigation, or whether they have developed
their opinions expressly for purposes of testifying." Clausen, 339 F.3d at 1056 (quoting Daubert v. Merrell Dow
Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995)). Opinions developed expressly for purposes of testifying in

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2007 U.S. Dist. LEXIS 95918, *5

litigation require the party offering the opinion to come forward with "objective, verifiable evidence that the testimony
is based on 'scientifically valid principles.'" Daubert, 43 F.3d at 1317-18. One way to meet this burden is through "proof
that the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny
through peer review and publication." Id. at 1318.
If an expert's opinions have not been subjected to scrutiny through peer review or publication, then a proponent of
expert testimony could demonstrate it is based on scientifically valid principles [*6] "through the testimony of its own
experts." Id. at 1319. If a proponent relies on its own experts to establish the scientific validity of the experts'
methodology, the
the experts must explain precisely how they went about reaching their conclusions and point to some objective source-a learned
treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like-to show
that they have followed the scientific evidence method, as it is practiced by (at least) a recognized minority of scientists in their
field.

Daubert, 43 F.3d at 1319. Absent some explanation of the experts' methodology, the experts' testimony is subject to
exclusion at trial. Id. at 1319-20. Differential diagnosis is one common scientific technique which, when properly
conducted, passes muster under Daubert. Clausen, 339 F.3d at 1057-58.
Defendants challenge six of Dr. Pullman's expert opinions or conclusions as lacking sufficient scientific reliability and
factual support. They assert Dr. Pullman has not explained the methodology he employed in formulating his opinions.
Most specifically the Defendants contend Dr. Pullman did not engage in any differential diagnosis [*7] to support his
opinions.
The six opinions challenged by Defendants are as follows:
1. "[A]n osteomyelitis of the maxilla occurred at the site of the allograft implant." (Pls.' Response Br., Attachment 1 at 1.)
2. The bone allograft Defendants provided was contaminated on the basis that
a. the harvested "bone[] could not have been reliably sterilized by the irradiation process employed and still
preserve the integrity of the material for allografting[]" (Id. at 2);
b. Defendants' tissue culture and post-antibiotic disinfection test results "could represent a false negative culture
for other (potentially more pathogenic organisms[]" (Id.); and
c. Defendants' test "sampling error would amplify the risk of a false negative culture[.]" (Id.)
3. "The contaminated bone sold for transplantation [...] was a substantial contributing factor in bringing about [Rick Arneson's]
infection and his consequences which now include chronic neuropathic pain." (Id. at 3.)
4. Rick Arneson is "more likely than not to continue [to have neuropathic pain] throughout his lifetime." (Id.)
5. "The medical care provide to Mr. Arneson since his graft placement, as reflected in exhibit A, are the result of diagnostic and
therapeutic [*8] services resulting from the infectious complications of his allograft placement." (Id.)
6. Rick Arneson will continue to have "an indefinite future of persistent pain, destruction and loss of oral and maxillofacial tissue
with loss of vascularity that increases his risk of recurrent infection. Complications associated with his treatment include
quinolone-related tendonopathies and hyperactive oxygen related ocular lense disease." (Id.)

The Plaintiffs, of course respond that Dr. Pullman reached his opinions and conclusions through the implementation of
scientifically reliable methods. Dr. Pullman, Plaintiffs argue, applied his specialized knowledge as a board certified
physician, relied on medical journals, and used scientifically valid principles in the formulation of his opinions.
Plaintiffs state "Dr. Pullman's opinions are based on a wide variety of objective scientific evidence and scientifically
valid principles commonly used in medical practice[.]" (Pls.' Response Br. at 10.) Although Dr. Pullman did not
expressly use the term "differential diagnosis" in his report to describe his methodology, that is, in fact, the

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methodology he used to arrive at his conclusions and opinions.

Upon [*9] review of Dr. Pullman's expert report, the Court finds his opinions are not based on research he conducted
independent of this litigation. Rather his opinions have been developed expressly for purposes of testifying in this
lawsuit. Consequently, under Daubert the burden is on the Plaintiffs to present "objective, verifiable evidence that the
testimony is based on 'scientifically valid principles'". The Plaintiffs may sustain that burden through the testimony of
Dr. Pullman establishing that he did utilize differential diagnosis to formulate his opinions.
As noted, Dr. Pullman's report does not state, in express terms, that the doctor utilized the technique of differential
diagnosis. Consequently, the Plaintiffs undertake to explain in their brief that Dr. Pullman did employ differential
diagnosis. The Plaintiffs' representations as to the methodology Dr. Pullman employed, however, do not suffice to meet
the burden of establishing the scientific reliability of Dr. Pullman's methodology. Those representations are Plaintiffs'
counsel's representations, not the testimony of their expert. "Personal opinion, not science, is testifying here." Daubert,
43 F.3d at 1319 (quoting Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1349, 1360 (6th Cir. 1992)). [*10] To
satisfy their burden in the face of Defendants' challenges, the Plaintiffs should have submitted an affidavit from Dr.
Pullman explaining his methodology. Daubert, 43 F.3d at 1319-20. Nonetheless, the Plaintiffs should be afforded the
opportunity to augment Dr. Pullman's report in the limited respect of allowing the doctor to state, by way of affidavit,
whether he employed the technique of differential diagnosis. To the extent Defendants believe Dr. Pullman did not
properly conduct a differential diagnoses in formulating his opinions, they may challenge his opinions through
cross-examination.
Disputes as to the strength of [an expert's] credentials, faults in his use of [a particular] methodology, or lack of textual authority for
his opinion, go to the weight, not the admissibility, of his testimony.

Kennedy, 161 F.3d at 1230-31 (citation ommitted). Therefore, IT IS HEREBY ORDERED Defendants' motion is
DENIED. The motion may, however, be renewed if Plaintiffs do not augment Dr. Pullman's report within 11 days of
the date of this Order.
2. Sufficiency of Dr. Pullman's Report
Pursuant to Fed. R. Civ. P. 26(a)(2)(B), an expert witness report shall
contain a complete statement of all opinions [*11] to be expressed and the basis and reasons therefor; the data or other information
considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the
qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the
compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert
at trial or by deposition within the preceding four years.

Rule 26(a)(2)(B). The purpose of the disclosure is to provide full information to prepare for effective and efficient
discovery.
The reason for requiring expert reports is "the elimination of unfair surprise to the opposing party and the conservation of
resources." The test of a report is whether it was sufficiently complete, detailed and in compliance with the Rules so that surprise is
eliminated, unnecessary depositions are avoided, and costs are reduced.

Reed v. Binder, 165 F.R.D. 424, 429 n.9 (D.N.J. 1996) (internal citations omitted).
An expert report should be sufficiently complete as to include the substance of what the expert is expected to give in direct
testimony, [*12] and the reasons for such testimony. The report should offer the "how and why" of the results, not mere
conclusions.

Allgood v. General Motors Corp., 2006 U.S. Dist. LEXIS 70764, 2006 WL 2669337 at *4 (S.D. Ind. 2006) (citing
Salgado v. General Motors Corp., 150 F.3d 735, 741-742 & n.6 (7th Cir. 1998)).
Defendants contend Dr. Pullman's expert witness report is conclusory in nature and does not provide all the detail

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required under Fed. R. Civ. P. 26(a)(2)(B). Defendants argue the report does not sufficiently state the bases and reasons
for Dr. Pullman's opinions, or identify with specificity the data, documents, or other information (including medical
literature) Dr. Pullman considered in forming his opinions. Therefore, Defendants assert Dr. Pullman's opinions are
speculative.
Indisputably, an expert witness report which is preliminary in nature, "devoid of any factual basis for its conclusory
opinions", and prepared without review of "discovery materials" is defective and warrants the exclusion of the expert
from testifying at trial. Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 738, 741-42 (7th Cir. 1998). Bald
conclusions of an expert witness, or brief statements of ultimate conclusions with no explanation [*13] of the basis and
reasons therefore, or the absence of a statement of how the medical records support the conclusions, do not satisfy the
Rule 26(a)(2)(B) requirements. Giladi v. Strauch, 2001 U.S. Dist. LEXIS 4645, 2001 WL 388052 at *4-5 (S.D.N.Y.
2001).
In contrast to the conclusory expert witness reports found defective in Salgado and Giladi, the Court finds Dr. Pullman's
report generally complies with the Rule 26(a)(2)(B) requirements. Dr. Pullman's report states he "reviewed the
deposition testimony, documents produced and medical records related to Rick Arneson." (Pls.' Response Br.,
Attachment 1 at 1.) His report recites Rick Arneson's relevant medical records and the procedures he underwent, and his
report provides various explanations in support of his opinions. For example, Dr. Pullman's report concludes an
osteomyelitis occurred at the site of the dental implant and it states the reasons for his conclusion. (Id. at 1-2.) Similarly,
Dr. Pullman explains why he believes the harvested and irradiated tissue remained capable of transmitting infections.
(Id. at 2-3.)
Without going into meticulous detail, except with respect to the specific opinions discussed below, suffice it to say Dr.
Pullman's report sufficiently [*14] states the reasons, bases, and information supporting most of his opinions. In
general, Dr. Pullman's report is not the type of report containing only bald conclusions which should be stricken.
Therefore, Defendants' motion is DENIED in this regard. To the extent Defendants are not satisfied that the reasons and
explanations Dr. Pullman provided support his opinions, then Defendants are free to take that issue up with him on
cross examination at trial.
The Court notes, however, that the Plaintiffs assert Dr. Pullman's report contains all of the reasons and bases for his
opinions, and all the data and information on which he relied in forming his opinions. Therefore, the Court cautions that
to the extent Dr. Pullman may attempt, through his testimony at trial, to provide further explanations, and to identify
additional data and information that is not set forth in his expert report, then the District Court may reconsider the
exclusion of all or portions of Dr. Pullman's opinions.
Defendants proceed to identify three of Dr. Pullman's specific opinions which they contend are bald conclusions
without any supporting bases or reasons. The conclusions identified are as follows:
"3. Mr. Arneson [*15] continues to experience neuropathic pain which, at this point, is more likely than not to continue throughout
his lifetime.
4. The medical care provide to Mr. Arneson since his graft placement, as reflected in exhibit A, are the result of diagnostic and
therapeutic services resulting from the infectious complications of his allograft placement.
5. Complications associated with Rick Arneson's infections include past chronic neuropathic pain as well as an indefinite future of
persistent pain, destruction and loss of oral and maxillofacial tissue with loss of vascularity that increases his risk of recurrent
infection. Complications associated with his treatment include quinolone-related tendonopathies and hyperactive oxygen related
(ocular) lens disease."

(Pls.' Response Br., Attachment 1 at 3.)

With regard to those opinions denominated numbers 3 and 5, the Defendants state, in conclusory fashion, that the
opinions are speculative because Dr. Pullman has not cited any peer-reviewed studies, journals or learned treatises
which support the opinions. While it is true Dr. Pullman's report does not cite specific publications that support these

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opinions, that fact standing alone does not provide [*16] a sufficient basis to simply strike the opinions.
Dr. Pullman states he reviewed the extensive medical records of Mr. Arneson. As to the issue of future pain, Dr.
Pullman's report reflects Mr. Arneson was left with "postoperative neurogenic pain" that has apparently persisted for a
number of years to the present time. As to future medical problems in the affected area, the report reflects Dr. Pullman's
conclusion, based upon review of the medical records, that Mr. Arneson had osteomyelitis in the maxilla and the area is
"problematic" with respect to "persistent infections." The Court does not find Dr. Pullman's opinions, which utilize past
and current medical conditions to formulate a prognosis, are the type of bald conclusions or "junk science" prohibited
by Daubert. The opinions pass the basic test of "whether or not the reasoning is scientific and will assist the jury."
Kennedy, 161 F.3d at 1230-31.
While Defendants may disagree with Dr. Pullman's opinions or believe they stretch the bounds of credibility, the Court
is not in a position to simply strike the opinions because the report does not reference textual authority for the opinions.
The lack of textual authority supporting an [*17] expert's opinion goes to the weight to be afforded the opinion not its
admissibility. Kennedy, 161 F.3d at 1231 (citations omitted). If, as suggested by Defendants, the referenced opinions are
in conflict with, or lack support in, pertinent medical literature, the Defendants will be able to minimize the weight of
those opinions through vigorous cross-examination. Id.
The final opinion under challenge pertains to Dr. Pullman's identification of medications, treatments and other services
which the doctor opines were necessitated by the injuries allegedly caused by the bone allograft. The itemized statement
incorporated into Dr. Pullman's report contains over five hundred entries spanning a time frame of eight years. The
Defendants argue that a number of the itemized expenses appear to be for treatment, etc., that is unrelated to the
allograft implantation. Based upon some perceived inaccuracies, Defendants seek to exclude the entire opinion. Striking
the entire opinion is unwarranted. The validity of any questionable items may be probed by the Defendants at trial.
Moreover, counsel for the parties might even work cooperatively in pretrial discussions to ensure the accuracy of
claimed [*18] medical expenses. Therefore, IT IS ORDERED that Defendants' motion is DENIED with respect to the
referenced opinions.
3. Dr. Pullman's Opinion Regarding Causation
Dr. Pullman's expert report states that the "contaminated bone [tissue used in this case] was a substantial contributing
factor in bringing about" Rick Arneson's infection and chronic neuropathic pain. (Pls.' Response Br., Attachment 1 at 3.)
Defendants contend the "substantial factor" test of causation is inapplicable to the circumstances of this case. Instead,
the Defendants maintain that because they are collectively the single defendant alleged to have caused the Plaintiffs'
injuries, the "but for" test of causation must be applied in this case. 1 According to the Defendants' interpretation of
Montana decisional law, whenever there is a single defendant named in a lawsuit the "but for" test of causation must be
used in instructing a jury. From this erroneous premise, the Defendants seek to exclude Dr. Pullman's opinion as to the
cause of Rick Arneson's injuries.

1 As the Court understands, Michigan Tissue Bank was a department of Sparrow Hospital. Therefore, for purposes of this issue the Court
deems the conduct of the two [*19] named Defendants as the collective conduct of a single actor.

In Busta v. Columbus Hospital Corp, 276 Mont. 342, 916 P.2d 122 (1996), the Montana Supreme Court provided an
extensive analysis regarding the two general tests of causation. Pertinent to the present discussion is the Court's
explanation that in those cases involving allegations of independent intervening cause or multiple causes, the
"substantial factor" test is the appropriate test of causation. 916 P.2d at 139.
As the Plaintiffs accurately note, the Defendants have expressly alleged and maintained there exists an independent
intervening cause which relieves them of liability. (Defs.' Answer, Dkt. 27, Tenth Affirmative Defense.)

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The defenses of lack of causation, and subsequent independent intervening cause were properly raised, and by expert testimony or
otherwise, MTB/Sparrow is entitled to present evidence and argument regarding other causal factors, including preexisting
conditions, and Dr. Hussar's excessive and unnecessary treatment as not being caused by the bone allograft.

(Defs.' Response Br. in Opposition to Pls.' Motions in Limine, Dkt. # 91 at 6-7.)

In view of the Defendants' affirmative defense of independent intervening [*20] cause, the Defendants' position that the
"but for" test of causation must be used in this case is without merit.
Therefore, IT IS ORDERED that the Defendants' motion seeking to exclude Dr. Pullman's opinion on the issue of
causation is DENIED.
4. Dr. Pullman's Qualifications Relative to Tissue Bank Standards
Defendants contend Dr. Pullman is not qualified as an expert to render opinions regarding tissue bank standards and
whether Defendants violated any of those standards. Dr. Pullman's report describes the procedures Defendants
employed to test the donor's blood, bone tissue and soft tissue for infections, and to harvest the tissue in question in this
case. Dr. Pullman opines "MTB violated it's own and industry standards of care that relate to transmission of infectious
agents in the harvesting and selling of allograft material for human transplantation from this donor." (Pls.' Response Br.,
Attachment 1 at 3.) Defendants move to exclude this opinion on the grounds that Dr. Pullman is not qualified to render
the opinion, that his report does not provide any explanation for the opinion, and that it does not identify the relevant
industry standards Defendants allegedly violated.
The expert [*21] witness disclosure rule requires a party to produce an expert witness report which contains a statement
of "the qualifications of the witness[.]" Fed. R. Civ. P. 26(a)(2)(B). An inadequate expert witness report which fails to
disclose the qualifications of an expert witness precludes the expert from testifying at trial. Carr v. Deeds, 453 F.3d 593,
604 (4th Cir. 2006); Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 283-284 (8th Cir. 1995) (citing Miller v.
Fairchild Indus., Inc., 885 F.2d 498, 512 (9th Cir. 1989)).
Dr. Pullman is a board certified practitioner in the medical specialty of infectious diseases. His opinion relating to the
Defendants' purported violation of both their own and industry standards of care as those standards relate to alleviating
the transmission of infectious agents in allograft material falls within the doctor's area of expertise. Based upon his
expertise in the field of infectious diseases, it is reasonable that Dr. Pullman may testify as to whether the procedures
utilized by the Defendants sufficiently comported with applicable standards that are designed to ensure the harvesting
and preparation of human tissue for transplant usage are conducted [*22] in a fashion that eliminates the possibility of
transmitting infectious agents. Contrary to the suggestion of Defendants, the fact Dr. Pullman may not have training,
certification, or first hand experience in the field of "tissue banking" is not fatal to the admissibility of his opinion. The
purported lack of additional qualifications goes to the weight of his testimony, which may be thoroughly examined at
trial.
Therefore, IT IS ORDERED that this aspect of the Defendants' motion is DENIED.
B. Defendants' Motion to Limit the Scope of Plaintiffs' Expert Witnesses' Testimony
In a separate motion Defendants move to limit Plaintiffs' expert witnesses' trial testimony to only those opinions and
matters set forth in the experts' reports and disclosures provided to Defendants pursuant to Fed. R. Civ. P. 26(a)(2)(B).
Specifically, Defendants state the Plaintiffs have provided expert witness reports for D. Ted Eastlund, M.D., and John
Pullman, M.D., but Plaintiffs have not submitted any rebuttal expert witness report from either expert within the time
limit imposed by Fed. R. Civ. P. 26(a)(2)(C). Therefore, the Defendants request the Court strictly limit Plaintiffs'
experts' testimony to the matters [*23] set forth in their respective reports.
In response to the motion the Plaintiffs concede and fully recognize the rule limiting their expert witnesses' testimony to
only those matters set forth in the witnesses' reports. Plaintiffs assert, however, that the experts are permitted to fully

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2007 U.S. Dist. LEXIS 95918, *23

explain those disclosed opinions through their testimony at trial.

The Plaintiffs also suggest their experts' disclosed opinions in fact rebut Defendants' expert witnesses' opinions.
Consequently, Defendants argue Plaintiffs cannot offer any rebuttal opinion at trial because Plaintiffs have failed to
properly disclose any rebuttal opinions.
The Court has authority pursuant to Fed. R. Civ. P. 37(c)(1) to limit or exclude expert witness testimony that a party
intends to offer which was not properly disclosed as required under Fed. R. Civ. P. 26(a)(2)(B). However, Defendants'
motion seeks only to enforce the rule limiting expert witness testimony in the abstract. Defendants have not identified
any specific testimony of either of the Plaintiffs' experts for the Court to consider as potentially going beyond the
matters set forth in the experts' reports. Absent a specific violation of the rules limiting experts [*24] to the substance of
their reports, the Court cannot grant Defendants' motion.
With regard to the issue of improper rebuttal opinions, Defendants have not identified any specific testimony for the
Court to consider as constituting a "rebuttal" which required a separate disclosure under Fed. R. Civ. P. 26(a)(2)(C). It
appears that Plaintiffs have simply made a poor choice of terminology in their brief, having characterized the initial
disclosures as "rebuttal" testimony. The Court finds Plaintiffs' intent was to characterize their expert witnesses' opinions
as contradictory to Defendants' expert witnesses' opinion. Such is the nature of the conflict of experts, and it does not
violate the rules.
Having not identified any specific offending testimony the Court cannot grant Defendants' motion, and IT IS
ORDERED Defendants' motion is DENIED. Nevertheless, the parties should be aware that the Court will strictly
enforce the rules limiting expert witness testimony if any specific violation is later identified at trial.
Defendants' motion separately requests that the Court limit Plaintiffs' treating physicians' testimonies. Defendants state
the Plaintiffs have not identified any of their treating [*25] physicians as expert witnesses and, therefore, those
witnesses should not be permitted to offer any opinions at trial beyond care, treatment, and prognosis.
In response to the motion Plaintiffs concede this limitation on their treating physicians' testimony. The Plaintiffs assert,
however, their treating physicians are permitted to testify relative to issues of the causation of Plaintiffs' injuries.
Again, Defendants have failed to identify any testimony Plaintiffs propose to offer from their treating physicians which
goes beyond care, treatment and prognosis. In the absence of testimony which violates the limitation on treating
physicians' testimony the Court cannot grant the motion and IT IS ORDERED the motion is DENIED that respect.
The Court will, however, enforce the treating physician rules at trial.
Since Plaintiffs have raised the issue of testimony from their treating physicians on the subject of causation, the Court
confirms their causation testimony is admissible at trial. Treating physicians generally are not subject to the mandatory
expert witness disclosure requirements. Elgas v. Colorado Belle Corp., 179 F.R.D. 296, 298 (D. Nev. 1998). A "treating
physician's opinion on [*26] matters such as 'causation, future treatment, extent of disability and the like' are part of the
ordinary care of a patient[.]" Id. (quoting Piper v. Harnischfeger Corp., 170 F.R.D. 173, 174-75 (D. Nev. 1997)). To be
admissible in the absence of an expert disclosure under Rule 26(a)(2)(B), a treating physician's opinion must be
acquired through the treatment of the patient. Id.; Piper, at 175. If properly based on personal knowledge, treatment of
the patient, and facts of their examination and diagnosis, then a treating physician may give his or her opinion as to the
cause of an injury, or the degree of the injury in the future. Id.
IT IS SO ORDERED.
DATED this 26th day of March, 2007.
/s/ Jeremiah C. Lynch

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2007 U.S. Dist. LEXIS 95918, *26

Jeremiah C. Lynch
United States Magistrate Judge