The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. Richard J. Arcara, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #3.
Currently before the Court is defendants' motion in limine seeking to preclude expert testimony from witnesses who have not provided disclosure pursuant to Rule 16(a)(2)(B) of the Federal Rules of Civil Procedure and seeking expenses, including attorneys' fees, resulting from this motion. Dkt. #12. Following plaintiff's supplemental disclosure of expert witness reports for Dr. Fishkin and Mr. Onions, defendants withdraw that aspect of their motion seeking to preclude their testimony, but continue to seek expenses, including attorneys' fees, associated with that aspect of their motion. Dkt. #20, p.3.
Plaintiff's complaint, which was commenced in New York State Supreme Court, County of Erie, and removed to this Court on the basis of diversity jurisdiction, seeks damages resulting from injuries sustained in a motor vehicle accident on February 7, 2007. Dkt. #1.
At the core of the motion currently before the Court is the distinction between witnesses who will offer expert testimony because of their treatment of plaintiff and those witnesses who will offer expert testimony because they have been retained or specifically employed to provide such testimony. Rule 26(a)(2) of the Federal Rules of Civil Procedure distinguishes between these expert witnesses as follows:
(A) In General. In addition to the disclosure required by Rule 26(a)(1) [Initial Disclosure], a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report -- prepared and signed by the witness -- if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a ...