Goodman v. Staples the Office Super-Store, LLC

Citations: 644 F.3d 817; 79 Fed. R. Serv. 3d 532; 2011 U.S. App. LEXIS 8979; 2011 WL 1651246Docket: 10-15021

Court: Court of Appeals for the Ninth Circuit; May 3, 2011; Federal Appellate Court

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Pamela Goodman, an unmarried individual, appealed against Staples The Office Superstore, LLC, in the United States Court of Appeals for the Ninth Circuit. The appeal stemmed from a district court ruling regarding the admissibility of testimony from Goodman’s treating physicians. Under Federal Rule of Civil Procedure 26(a)(2), parties must disclose a written report for expert witnesses, but treating physicians are generally exempt as they are considered percipient witnesses. In this case, the district court permitted the physicians to testify on opinions formed during treatment but barred them from expressing opinions solicited for litigation, due to the absence of a Rule 26 expert report.

The court clarified that when treating physicians are asked to provide expert opinions outside the scope of their treatment, they must comply with Rule 26(a)(2). Acknowledging the unsettled nature of the law regarding these "hybrid experts," the court decided to apply this clarification prospectively. The background details include an incident on May 9, 2007, where Goodman, while shopping at Staples, tripped and fell, leading to medical evaluations revealing no serious injuries but subsequent complaints of severe neck pain that required hospitalization.

On July 26, 2007, Goodman returned to her Los Angeles doctor after experiencing severe neck pain following a fall at Staples. Imaging revealed a fracture adjacent to her spinal fusion plate, leading to revision surgery on July 31, 2007. Despite ongoing treatment, her pain persisted, resulting in a second surgery on January 22, 2008. On February 7, 2008, Goodman filed a negligence complaint against Staples in Maricopa County Superior Court, alleging an unsafe condition in the store caused her fall. Staples moved the case to federal court due to diversity of citizenship.

The district court established a scheduling order for disclosures and discovery. Goodman identified several healthcare providers as potential witnesses in her initial disclosures on May 21, 2008, and later disclosed two expert witnesses, Dr. Gary Bakken and Alex Balian, on November 7, 2008, without providing written reports. After the expert disclosure deadline, she added two non-medical experts, Dr. Glenn Wilt and Gretchen Bakkenson, without written reports. On February 13, 2009, Staples disclosed their expert witnesses, including written reports.

On March 30, 2009, Goodman provided written reports for her previously identified non-medical experts and identified several rebuttal experts. Staples moved to exclude Goodman’s experts due to improper disclosure. The court partially granted this motion, striking Bakken and Balian as witnesses and limiting Wilt's testimony to rebuttal. Goodman filed a motion seeking clarification to allow her healthcare providers to testify in her case-in-chief and to permit Bakken and Balian to testify on rebuttal. The court clarified that Bakken, Balian, and Wilt could not testify in Goodman’s case-in-chief, but could do so on rebuttal. Additionally, it limited the healthcare providers' testimony to opinions developed during their treatment of Goodman, as supported by relevant medical records.

Goodman failed to provide written reports from her retained expert witnesses as required by Federal Rules of Civil Procedure 26(a)(2)(B), which mandates such reports unless the expert is not specifically retained for testimony or is a regular employee providing expert opinions. Although treating physicians are considered experts regarding their diagnoses and prognoses, their testimony regarding causation transforms them into the type of expert that requires compliance with the report requirement if the attorney seeks specific opinions about causation related to the plaintiff's injuries.

The district court clarified its order limiting the testimony of Goodman’s healthcare providers, after which Staples moved for summary judgment. Goodman simultaneously filed several motions, including one for reconsideration of the court's order. The district court granted Staples’ summary judgment, concluding that Goodman did not demonstrate a breach of duty by Staples and that the condition in question was open and obvious. Additionally, it ruled that Goodman failed to prove her injuries were caused by the fall, as her treating physicians were barred from testifying on causation due to the lack of compliance with disclosure requirements.

Goodman is appealing this ruling. The standard of review for the summary judgment grant is de novo, requiring an examination of whether genuine issues of material fact exist when viewing evidence in the light most favorable to the nonmoving party. The court also reviews discovery rulings and sanctions for abuse of discretion, but legal issues within those rulings are reviewed de novo.

To prove negligence under Arizona law, a plaintiff must show that the defendant owed a duty, breached that duty, caused the injuries, and that actual damages were sustained. The district court found Goodman failed to establish that Staples breached its duty and that her injuries were caused by the fall. However, the appellate court determined that Goodman raised triable issues of fact regarding both elements, leading to a reversal of the summary judgment in favor of Staples. Breach of duty is determined based on whether the defendant met the standard of care, which can be shown if a dangerous condition was created by the business owner or their employees.

A business owner generally is not liable for injuries to invitees resulting from open and obvious dangerous conditions, as established in Tribe v. Shell Oil Co. However, liability may arise if the proprietor should have anticipated harm from an obvious condition, particularly if the invitee is likely to be distracted. In this case, the district court found that Goodman did not prove the existence of a dangerous condition and thus could not establish a breach of duty by Staples. The court concluded that the end cap was visible and not unreasonably dangerous, as evidenced by Goodman's associate successfully navigating around it.

Goodman contends that the court erred in its determination of the end cap's dangerousness, arguing that the question of whether a hazard is open and obvious is typically for a jury to decide. The court can only rule on breach of duty as a matter of law when no reasonable person could find otherwise. Upon reviewing photos of the end cap, which was a few inches off the ground and surrounded by contrasting colors, the court noted that an optical illusion may have contributed to Goodman's fall, an aspect that aligns with jury consideration. Even if a condition is deemed open and obvious, it does not eliminate the possibility of liability, as illustrated in Tribe, where foreseeability of harm played a critical role in assessing breach of duty, emphasizing that such determinations are reserved for the jury.

A jury could reasonably determine that Staples was aware or should have been aware of the potential dangers associated with an empty end cap, as the store environment encourages customers to focus on products rather than the floor. Testimony from Staples employees indicated that they were trained to avoid leaving end caps completely empty due to safety concerns and to keep aisle items at a visible height. There is sufficient evidence for a reasonable person to believe that Staples should have anticipated the risk of a customer tripping over the empty end cap, creating genuine disputes regarding whether the condition was open and obvious and whether the danger should have been anticipated. The district court incorrectly ruled that no unreasonably dangerous condition existed at the time of the plaintiff Goodman’s fall.

Under Arizona law, causation is a critical component of a negligence claim, requiring proof that the defendant's breach likely caused the plaintiff's injuries. Goodman claims her fall at Staples resulted in serious cervical injuries and psychiatric issues. However, the district court barred her medical experts from testifying on causation due to noncompliance with expert disclosure requirements under Rule 26 of the Federal Rules of Civil Procedure. This rule mandates that any retained expert witness must provide a comprehensive written report detailing their opinions, bases, qualifications, and other specific information, while treating physicians are generally not subject to this requirement. The distinction regarding when a treating physician may qualify as an expert—particularly concerning opinions formed outside the course of treatment—presents a novel issue. Goodman contends that Rule 26 does not necessitate a written report for treating physicians, whereas Staples argues that such reports are only exempted when the opinions arise from the treatment provided.

In Fielden v. CSX Transportation, Inc., the Sixth Circuit ruled that a treating physician is not required to provide a written report when testifying about treatment-related issues formed during the course of treatment based on actual treatment and the plaintiff's records. However, the court clarified that this does not mean a treating physician is entirely exempt from disclosing an expert report. Staples argued, with support from Fielden, that Rule 26 mandates a written report unless evidence shows the physician's opinion was formed during treatment. The Fielden court found that the physician's opinion on causation was formed during treatment, distinguishing it from a previous case where there was no evidence of causation conclusions being made at the time of treatment. Other circuits, such as the Seventh and Eighth, have reinforced this perspective, requiring written reports from treating physicians unless their causation opinions were formed during treatment. District courts have similarly limited testimony from treating physicians to opinions formed during treatment if no expert report is provided. The conclusion drawn is that a treating physician must comply with Rule 26(a)(2)(B)'s written report requirement unless their opinions were formed during the treatment period. In this case, Goodman’s retained physicians formed their expert opinions based on information provided by her attorney, which was outside the scope of their treatment.

The district court determined that certain doctors did not qualify for the 'treating physician' exception concerning their additional opinions, necessitating the disclosure of written reports under Rule 26(a)(2)(B). Goodman failed to provide these reports within the required timeframe, violating Rule 26's disclosure requirements. Consequently, under Fed. R. Civ. P. 37(c)(1), Goodman could not use these witnesses at trial unless she demonstrated that the failure to disclose was substantially justified or harmless. Although the court upheld Goodman’s non-compliance, it recognized that the law on the 'treating physician' exception was previously unsettled, and thus ruled that Goodman should be permitted to rectify her error by disclosing her physicians' reports, leading to the reversal of the district court's summary judgment on causation.

Regarding the denial of Goodman’s motion for reconsideration concerning her non-medical experts, the court found that Goodman disclosed her expert identities on time but failed to provide the necessary reports until four-and-a-half months after the deadline. Staples motioned to preclude these experts under Rule 37, which the district court granted, allowing their testimony only for rebuttal. Rule 26 mandates timely disclosure of expert identities and reports, and Rule 37 enforces compliance through exclusion at trial of improperly disclosed information. The district court did not err in determining that Goodman’s delay was neither substantially justified nor harmless, as her attorney admitted to not reading the court’s scheduling order.

Goodman's failure to adhere to Rule 26 regarding non-medical expert disclosures was deemed unjustified, and she did not demonstrate that the resulting delay was harmless. The obligation to prove harmlessness lies with the party opposing exclusion under Rule 37. Goodman disclosed her expert reports over a month past Staples' deadline, leading Staples to assume that Goodman would not present non-medical expert testimony. As a result, Staples' experts formed their opinions without the benefit of knowing the scope of Goodman’s experts, ultimately causing “obvious prejudice” to Staples. The district court's decision to bar Goodman’s non-medical experts from testifying was upheld, and Goodman's motion for reconsideration on this matter was denied. 

Goodman also appealed the district court's moot denial of her motion in limine to prevent Staples from challenging her medical bills and Staples' motion to exclude late-disclosed medical bills. These motions were not addressed prior to the summary judgment favoring Staples, which was reversed, and the case was remanded for the district court to rule on these motions. 

The panel's ruling indicates that fairness supports applying the clarified rule on hybrid experts prospectively. The court considered whether this case warranted a purely prospective ruling, weighing factors like the establishment of new legal principles and potential inequitable outcomes of retroactive application. The factors were found to be flexible, allowing discretion in deciding the application of the new rule. Ultimately, the decision to adopt the new hybrid expert disclosure rule was deemed not inconsistent with existing case law, leading to a concurrence in the opinion while expressing reservations about the broad discretion applied. The appellate court affirmed in part, reversed in part, and remanded for further proceedings, with each party bearing its own costs.