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Medical Records May Not Sub for ‘Disclosures’

Plaintiffs suing for damages from mold infestation in the house they occupied cannot satisfy their obligation to disclose reports from their treating physician witnesses just by sending defendants copies of medical records, but a Charlottesville U.S. District Court will allow the treating physicians to testify in this case of first impression.

Plaintiffs allege they were house-sitting for defendants, who would not allow plaintiffs to repair leaks, so the house became infested with mold that caused plaintiffs injury.

Defendants have filed motions seeking to exclude the testimony of plaintiffs’ treating physicians for failure to provide adequate disclosures under Fed. R. Civ. P. 26(a)(2)(C); the testimony of Dr. Frye for inadequate disclosure under Rule 26(a)(2)(B) and the testimony of Darren Giacolome, who performed repairs, as improper under the Rules of Evidence.

Under the terms of a scheduling order, plaintiffs filed a “notice of the use of Drs. Frye, Poehailos and Elgort as treating physicians.” The filing did not include any expert reports or other disclosures as to Drs. Poehailos and Elgort, but it did include a letter from Dr. Frye, which plaintiffs contend satisfies the requirements of Rule 26(a)(2)(C). The disclosures also refer to “Medical records of the treating physicians,” which had been submitted “in previous discovery. After defendants filed the instant motion in limine, plaintiffs filed three supplemental “treating physician summar[ies]” pertaining to Dr. Frye, Dr. Poehailos and a Dr. Gary P. Rakes. Plaintiffs have not made any supplemental filing with respect to Dr. Elgort.

Plaintiffs claim they have “exceeded the requirement” of Rule 26(a)(2)(C) by timely filing the complete medical records of the treating physicians. Rule 26(a)(2)(C) became effective Dec. 1, 2010, and I am unaware of any appellate court to have considered the scope of its “summary” requirement. But whatever the precise meaning of the requirement, a “summary” is ordinarily understood to be an “abstract, abridgment, or compendium.” It follows that plaintiffs cannot comply with the rule by disclosing the complete records of the treating physicians in issue.

The letter from Dr. Frye states she treated plaintiffs, family members had various upper respiratory infections, there was mold in the house, it has been shown that mold irritates the respiratory system and she believes the family’s recent problems are related to the mold contamination. Although I need not decide the matter, my impression is the letter adequately sets forth the subject matter on which Dr. Frye is expected to testify and a summary of the facts on which she bases her opinion. If the letter is defective, it is because it does not explicitly indicate Dr. Frye will testify, although that is clear from other filings.

The April 28 filing as to Dr. Poehailos similarly provides an adequate disclosure under Rule 26(a)(2)(C). Although the detail in both April 28 disclosures is not great, the Advisory Committee cautions the requirements of Rule 26(a)(2)(C) are “considerably less extensive” than Rule 26(a)(2)(B), and courts “must take care” against requiring undue detail. Especially when read in light of the medical records disclosed, the April 28 filings allow defendants adequate opportunity to prepare their defense.

Under the circumstances, it would be inappropriate to exclude the testimony of Drs. Frye and Poehailos.

As to Dr. Elgort, plaintiffs indicated their failure to provide a supplemental disclosure stemmed from an inability to secure the doctor’s cooperation, or to decipher his illegible treatment records. Defendants are entitled to some advance notice of Dr. Elgort’s testimony. Plaintiffs are ordered to file an appropriate supplemental disclosure within 14 days.

Defendants also move to exclude expert testimony of Dr. Frye for failure to include an expert report pursuant to Rule 26(a)(2)(B). Courts within the circuit have concluded such a report is required when a treating physician is called to opine on information learned outside the course of treatment. Defendants argue that since a “Sci-Labs” mold report is the “only evidence” of mold contamination in the home in question, the absence of the report from Dr. Frye’s medical records means someone provided her with documents to rely on in forming her causation opinion.

I have some reservations about the viability of the opinions cited by defendants, after implementation of Rule 26(a)(2)(C). Here, there is no reason to conclude Dr. Frye was “retained or specially employed” for this case. Assuming the cases cited by defendants provide an accurate statement of the law, there is still no reason to require an expert report of Dr. Frye. Medical records suggest Dr. Frye learned of the mold contamination in the home by interviewing her patients in the ordinary course of treatment.

The court denies as premature defendants’ motion to exclude expert testimony from Darren Giacolome of Roof Top Services, about the minimal cost of repair of the home’s skylights three months after plaintiffs moved out.

Kristensen v. Spotnitz (Moon) No. 3:09cv00084, June 3, 2011; USDC at Charlottesville, Va. VLW 011-3-449, 10 pp.

VLW 011-3-449

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