                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                 F I L E D
                         In the                                    June 4, 2003
         United States Court of Appeals                       Charles R. Fulbruge III
                  for the Fifth Circuit                               Clerk




                     _______________

                       No. 02-60686
                     Summary Calendar
                     _______________

CENTRAL STATES HEALTH & LIFE COMPANY OF OMAHA, NEBRASKA,

                                        Plaintiff-Appellant,

                        VERSUS

                HERBERT LEON BREWER, III,

                                        Defendant-Appellee.


                  **************

                     _______________

                       No. 02-60718
                     Summary Calendar
                     _______________

CENTRAL STATES HEALTH & LIFE COMPANY OF OMAHA, NEBRASKA,

                                        Plaintiff-Appellee,

                        VERSUS

                HERBERT LEON BREWER, III,

                                        Defendant-Appellant.
                                      _________________________

                             Appeals from the United States District Court
                               for the Northern District of Mississippi
                                        m 1:99-CV-383-D-D
                                   _________________________




Before HIGGINBOTHAM, SMITH, and                               occupation for which you are qualified
  CLEMENT, Circuit Judges.                                    by reason of education, training or expe-
                                                              rience.
JERRY E. SMITH, Circuit Judge:*
                                                           The policy also provided Brewer with benefits
   Central States Health & Life Company of                 in the event he became “partially disabled,”
Omaha, Nebraska (“Central States”), appeals                defined as “the inability, as a result of sickness
a declaratory judgment finding Herbert Leon                or injury, to perform one or more of the main
Brewer, III, continuously disabled for a period            duties of your principal occupation, or the in-
of twenty-four months and therefore entitled               ability to perform those duties on a full-time
to benefits under a Central States disability in-          basis.”
surance policy. Brewer appeals the denial of
his motion to add a counterclaim for bad faith.                In 1996, while incarcerated, Brewer
Finding no reversible error, we affirm.                    strained his upper extremities and neck after he
                                                           slipped on a wet concrete walkway. Over one
                       I.                                  year later, he contacted Central States and
   In January 1999, Brewer, a chiropractor,                initiated a claim for disability benefits, submit-
was issued a Central States disability policy              ting medical records from three different
entitling him to benefits in the event of “total           doctors, including his treating physician, Dr.
disability,” defined by the policy as                      Alan Pritchard, who stated that Brewer was
                                                           “totally disabled” as of the date of the acci-
   [the] inability, as a result of sickness or             dent.1
   injury to perform the substantial and ma-
   terial duties of your principal occupation                  In August 1999, Central States denied
   for the first 24 months of continuous                   Brewer’s claim, then filed a declaratory judg-
   disability. After the first 24 months of                ment action seeking a determination that
   continuous disability, total disability                 Brewer was neither totally nor partially dis-
   means the inability to engage in any                    abled under t he terms of the policy. Before
                                                           trial, the district court denied Central States’

   *
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                              1
determined that this opinion should not be pub-                 Pritchard later retracted this opinion but still
lished and is not precedent except under the limited       concluded that additional testing was needed to
circumstances set forth in 5TH CIR. R. 47.5.4.             determine the extent of Brewer’s disability.

                                                       2
motion to strike the designation of experts Dr.          or by deposition within the preceding
Rommell Childress and Dr. John DeSutter and              four years.
denied Brewer’s motion to add a counterclaim
for bad faith. The court granted declaratory          FED. R. CIV. P. 26(a)(2)(B). Central States
relief for Brewer, finding him totally disabled       argues that Childress’s five page report does
for a period of twenty-four months beginning          not meet four of Rule 26’s requirements; the
on the date of the accident, and partially dis-       report allegedly does not contain a complete
abled thereafter.                                     statement or the bases for Childress’s opin-
                                                      ions. Also, the report allegedly fails to list cas-
                      II.                             es in which Childress has testified as an expert
   Central States contends the district court         within the past four years, and it lacks any
erred by refusing to strike Childress and De-         exhibits.
Sutter as experts for their failure to comply
with FED. R. CIV. P. 26(a)(2)(B). The refusal            Even where an expert’s report fails to meet
to exclude or limit testimony is reviewed for         the requirements of rule 26, his testimony
abuse of discretion. Black v. Food Lion, Inc.,        should be excluded only after an examination
171 F.3d 308, 310 (5th Cir. 1999). We re-             of four factors: (1) the party’s explanation, if
verse a decision regarding the designation of         any, for failure to comply with the scheduling
expert witnesses only in “unusual and excep-          order; (2) the prejudice to the opposing party
tional cases.” Sierra Club, Lone Star Chapter         of allowing the witness to testify; (3) the pos-
v. Cedar Point Oil Co., 73 F.3d 546, 569 (5th         sibility of curing such prejudice by granting a
Cir. 1996) (citation omitted).                        continuance; and (4) the importance of the
                                                      testimony. Sierra Club, 73 F.2d at 572.
   A district court has wide latitude in de-
termining whether an expert report is suffi-                                 A.
ciently detailed and complete. Michaels v.               Childress’s report opines that, following the
Avitech, Inc., 202 F.3d 746, 750 (5th Cir.            accident, Brewer was “totally disabled for a
2000). Rule 26(a)(2)(B) requires that expert          minimum of six to eight weeks from doing his
reports contain                                       normal occupation or any occupation.” The
                                                      report also states that Brewer’s medical
   a complete statement of all opinions to            condition currently precludes him from func-
   be expressed and the basis and reasons             tioning as a chiropractor on a full-time basis.
   therefor; the data or other information            At his deposition, Childress explained that
   considered by the witness in forming the           Brewer “might be able to do some minor man-
   opinions; any exhibits to be used as a             ipulations. He may be able to do one a day,
   summary of or support for the opinions;            but if he tried to do ten, it might literally in-
   the qualifications of the witness,                 capacitate him as far as having increased neck
   including a list of all publications au-           and arm symptoms . . . .”
   thored by the witness within the pre-
   ceding ten years; the compensation to be              Noticeably, the report does not expressly
   paid for the study and testimony; and a            state whether Brewer was continuously dis-
   listing of any other cases in which the            abled for a period of twenty-four months fol-
   witness has testified as an expert at trial        lowing the accidentSSthat is, unable to per-


                                                  3
form the substantial and material duties of his          perform the substantial and material duties of
principal occupation. Childress later deposed,           a chiropractor for a twenty-four-month period
however, that Brewer “did meet the definition            after the accident.3 Indeed, the report con-
of total disability.” Central States argues that         cludes that Brewer was unable to perform any
Childress’s deposition testimony is outside the          job for a period of six to eight weeks there-
scope of what amounts to an incomplete                   after. Not surprisingly, Central States does
expert report.                                           not explain how it was prejudiced.

    The report’s statement that Brewer was un-               Second, Central States argues that the re-
able to perform his occupation or any occu-              port fails to provide satisfactory bases for Chil-
pation for a minimum of six to eight weeks               dress’s conclusions. Specifically, Central
following the accident is not inconsistent with          States contends that Childress “provides no
Childress’s deposition testimony that Brewer             summary of the data upon which he allegedly
was totally disabled for twenty-four months.             relied, other than the Defendant’s medical rec-
For one, the policy defines total disability as          ords, nor does Dr. Childress in his expert re-
the inability to perform only the claimant’s             port specify which doctors or which medical
principal occupation for a twenty-four-month             records he reviewed.” In fact, however, the
period. Second, the expert report states that            report’s conclusions are based on a review of
Brewer was unable to engage in any occu-                 Brewer’s “entire” medical record, including
pation for a minimum of six to eight weeks;              the “x-rays and MRI scans that document the
this does not rule out the possibility of a longer       cervical disc pathology at several levels.” We
disability.                                              agree with the district court that, i n light of
                                                         Childress’s stated examination of Brewer’s
   In any event, and absent unfair surprise or           entire medical record, it was unnecessary to
bad faith, an expert may testify as to matters           inventory the individual documents reviewed.
outside his report if the matter is within his
expertise.2 The test is not whether the expert               Third, Central States contends it was pre-
report covers every conceivable question of              judiced by the report’s omission of the cases in
cross-examination, but whether it provides               which Childress has testified within the last
sufficient detail such that the opposing party is        four years. The report states that Childress
not surprised.                                           has “testified as an expert witness by way of
                                                         deposition on numerous occasions over the
   Central States cannot claim it was surprised          last four years,” but omits specific cases in
by Childress’s deposition testimony. The re-             violation of rule 26(a)(2)(B).
port’s conclusion that Brewer is currently un-
able to work full-time as a chiropractor should            An analysis of the four Sierra Club factors,
have put Central States on notice that Chil-             however, suggests the district court did not err
dress would testify that Brewer was unable to

                                                            3
                                                               Similarly, in concluding that Childress did not
   2
    Shelak v. White Motor Co., 581 F.2d 1155,            testify outside the scope of his report, the district
1159 (5th Cir. 1978) (citation omitted); DeMarines       court noted that Childress “did not testify as to any
v. KLM Royal Dutch Airlines, 580 F.2d 1193,              new opinions. He simply expanded and developed
1201-02 (3d Cir. 1978).                                  those opinions contained in his report.”

                                                     4
by refusing to exclude the testimony. Chil-               1116, 1138 (10th Cir. 1999). Northern Dis-
dress’s deposition was not obtained until al-             trict of Mississippi Local Rule 26.1(A)(2)(f)
most a year after he submitted his report.                provides: “A party shall designate treating
Despite the report’s reference to Childress’s             physicians as experts pursuant to this rule, but
testimony in other cases, Central States never            is only required to provide the facts known
moved to compel discovery.4 Information re-               and the opinions held by the treating phy-
garding Childress’s previous testimony may or             sician(s) and the summary of the grounds
may not have been critical to Central States’s            therefor.” Accordingly, DeSutter’s desig-
case; the district court, however, was not obli-          nation as an expert witness is not conclusive as
gated to grant a continuance or strike the tes-           to his status.
timony to accommodate Central States’s
inaction.                                                     Central States complains that DeSutter tes-
                                                          tified outside his capacity as a treating phy-
    Finally, Central States contends the expert           sician by making reference to other doctor’s
report violated rule 26 because no exhibits               reports and medical records. DeSutter, a chi-
were attached. Childress’s testimony made                 ropractor, began treating Brewer in January
use of only three exhibits: his expert report, his        1999. According to his two-page report, he
curriculum vitae, and his office notes. The               has taken “yearly cervical x-rays, an x-ray of
first two were part of the rule 26 disclosure.            Dr. Brewer’s right elbow, and performed the
As to the office notes, in light of Brewer’s              following physical tests: Bikele’s sign; Fro-
contention that Childress repeated the notes              ment’s sign; Inverted Radical Reflex; Radial
“almost verbatim in his expert report,” Central           Reflex; Tinel sign; and, Grip Strength Test.”
States does not explain how it was prejudiced             The report also states that, as part of treat-
by their omission.                                        ment, DeSutter has reviewed Brewer’s medical
                                                          records, including an MRI report signed by
                        B.                                Atkinson.
    The district court determined that DeSutter,
as a treating physician, was not required to                  In concluding that Brewer is totally dis-
submit an expert report. Generally, a treating            abled under the policy, however, the report
physician is not considered an expert witness             also states that “chiropractic heath care re-
if he testifies about observations based on per-          quires physical exertion and manipulation of a
sonal knowledge. Davoll v. Webb, 194 F.3d                 patient’s neck and back and an average chi-
                                                          ropractor typically performs hundreds of mani-
                                                          pulations during the course of one day.” At
   4
                                                          deposition, DeSutter opined that Brewer was
      Central States’s reliance on Sierra Club is         disabled to work as a chiropractor; this opin-
misplaced. In that case, the district court struck
                                                          ion was based on DeSutter’s intimate famil-
defendants’ experts as a sanction for violating the
court’s accelerated discovery order. 73 F.3d at
                                                          iarity with a chiropractor’s occupational du-
569. Here, Central States alleges a rule 26(a)(2)         ties. DeSutter also testified that he had re-
violation independent of any specific discovery           viewed previous medical records and ordered
order. Notably, Sierra Club affirmed the court’s          an MRI report prepared in preparation for tes-
striking of experts under an abuse of discretion          timony; he testified as to his curriculum vitae,
standard of review, the same standard we apply            prior experience, and publications. These ob-
here in affirming the court’s refusal to strike.

                                                      5
servations are consistent with expert witness
testimony, Davoll, 194 F.3d at 1138, so the                                       III.
court erred in concluding that DeSutter’s tes-                 Central States argues there is insufficient
timony related solely to treatment.                         evidence to support judgment for Brewer. We
    As with Childress, the question becomes                 reverse findings of fact only where, after re-
whether DeSutter’s expert report satisfies rule             viewing the record, we are left with a definite
26(a)(2)(B). Central States takes issue only                and firm conviction that error has been com-
with DeSutter’s failure to attach extraneous                mitted. Reich v. Lancaster, 55 F.3d 1034,
medical records and doctor’s notes to his re-               1045 (5th Cir. 1995). The district court “has
port.5 Yet, these records, which Central States             the decided advantage of first hand experience
does not identify, chiefly relate to DeSutter’s             concerning the testimony and evidence pre-
treatment of Brewer and not to his expert                   sented at trial.” Id.
opinion regarding whether Brewer was able to
perform the occupational duties of a chiro-                    The court reasonably concluded that Brew-
practor. It is no secret that physicians must               er was unable to perform the substantial and
utilize a patient’s medical record, including the           material occupational duties of a chiropractor
opinions of other doctors, in the course of                 for twenty-four months following his accident.
treatment.                                                  Childress testified that Brewer’s condition pre-
                                                            vents him from performing chiropractic man-
   Even where DeSutter’s testimony consti-                  ipulations for a sustained period of time; he
tuted opinion testimony requiring the attach-               also testified that Brewer was unable to per-
ment of Brewer’s medical records used as ex-                form the occupational duties of any profession
hibits, Central States does not argue how it                for a minimum of six to eight weeks following
was harmed by the omission. DeSutter’s re-                  the 1996 accident. DeSutter testified that
port mentions various tests performed on                    Brewer could not return to work as a
Brewer, including the 1998 MRI report signed                chiropractor and that Brewer complained of
by Atkinson. Central States was aware that                  pain consistent with objective medical tests.
DeSutter’s opinion was based, at least in part,             Samuel Cox, Central States’s vocational ex-
on tests performed by other doctors. With                   pert, and Dr. David Strauser, Brewer’s voca-
over a year to obtain these documents, Central              tional expert, stated that Brewer may have dif-
States took no action. Therefore, the court                 ficulty bending, stooping, and reaching, mak-
did not err by admitting DeSutter’s testimony.              ing it difficult to work as a chiropractor.

                                                                Central States argues that the district court
   5
                                                            erroneously ignored objective evidence to the
     Central States’s brief provides record citations       contrary. Relying on the vocational experts’
but does not mention the specific doctor’s notes
                                                            testimony that a chiropractor must occasion-
and records omitted from DeSutter’s report. Based
on our review of the deposition testimony, outside
                                                            ally lift twenty to fifty pounds, Central Statess
of Atkinson’s MRI report, which DeSutter referred           points to video surveillance tapes showing
to on direct examination, all other extraneous              Brewer, with the aid of his eight-year-old son,
reports and records were mentioned on cross-                lifting several fifty-eight-pound fencing gates.
examination. As with Childress, DeSutter was not            The tape also shows Brewer lifting a bag of
expected to anticipate every possible question in           dog food and fueling his vehicle several times.
Central States’ cross-examination.

                                                        6
     We have viewed the tapes and are not con-          motion was denied. Following a continuance,
vinced they are probative. The evidence ad-             the court ordered that all discovery be
duced at trial indicates that Brewer is unable to       completed by July 13, 2001, and that “all mo-
perform his occupational duties on a sustained          tions other than motions in limine” be filed by
basis, not that he is incapable of lifting heavy        August 13, 2001.6 The court did not explicitly
objects for brief intervals. In any event,              set a new deadline for amending pleadings.
Brewer’s son assisted Brewer by holding one             The discovery deadline was subsequently ex-
end of the gates while Brewer lifted and slid           tended to August 13, 2001; no other deadlines
them into the back of a truck. A person with            were affected by that order.
little physical ability could have performed any
of the light tasks displayed on the tapes.                 The court maintained that the deadline for
                                                        amending pleadings had remained October 1,
   Similarly, the testimony of Sheriff’s Deputy         2000, all along, making Brewer’s motion un-
Kelly Hall does not undermine Brewer’s claim            timely by over six months. Brewer contends
to disability benefits. Hall testified that while       the court’s subsequent order that “all motions
incarcerated, Brewer performed several                  other than motions in limine” be filed by Au-
chiropractic manipulations and adjustments on           gust 13, 2001, included amendments to plead-
her and her husband. Again, this testimony              ings. Further, he argues that the bad faith
shows, at most, that Brewer is capable of per-          claim was developed only as a result of dis-
forming infrequent, non-repetitive tasks. As            covery conducted before the August 13
the testimony indicated, Brewer’s occupational          deadline.
disability lies in his difficulty performing
chiropractic duties on a sustained basis.                   Leave to amend should be freely given “[i]n
                                                        the absence of any apparent or declared
                     IV.                                reason, such as undue delay, bad faith or dil-
    Brewer appeals the denial of his motion to          atory motive on the part of the movant, re-
add a counterclaim for bad faith. We review a           peated failure to cure deficiencies by amend-
denial of leave to amend for abuse of dis-              ments previously allowed, undue prejudice to
cretion. Lowrey v. Texas A & M Univ. Sys.,              the opposing party by virtue of allowance of
117 F.3d 242, 245 (5th Cir. 1997) (citation             the amendment, futility of the amendment, etc.
omitted). The discretion of the district court          . . .” Foman v. Davis, 371 U.S. 178, 182
is limited by rule 15(a), which provides that           (1962). The deadline extension, though re-
“leave shall be freely given when justice so
requires.” FED. R. CIV. P. 15(a).                          6
                                                              Central States’ brief erroneously states that
   The court denied Brewer’s motion as “un-             the magistrate judge’s order extended “the deadline
                                                        for all other Motions other than Motions in Limine
timely.” The original scheduling order set a
                                                        [sic] to July 13, 2001, and the Motion to Amend
deadline of October 1, 2000, for amending all           Pleadings to March 1, 2001.” In fact, the order
pleadings. A month after the deadline had               makes no reference to a new deadline for amending
passed, both parties filed a Joint Motion to            pleadings, nor is the date March 1, 2001, men-
Amend Case Management Plan and Schedul-                 tioned anywhere in that order. We do not appreci-
ing Order, proposing a new deadline for                 ate counsel’s liberties, intentional or not, with the
amending all pleadings to March 1, 2001. This           record; such material misrepresentations are
                                                        subject to sanction.

                                                    7
quiring that all motions other than motions in          of the August 13 deadline.
limine be filed by August 13, 2001, makes no
express mention of a change in the deadline for           The judgment       in   both   appeals   is
amending pleadings. That deadline was                   AFFIRMED.
previously set at October 1, 2000; the parties’
joint November 2000 motion proposing to
extend the deadline to March 1, 2001, was
denied. Therefore, the court did not abuse its
discretion by denying, as six months tardy,
Brewer’s proposal to add a counterclaim for
bad faith.

    Generally, parties should be granted leave
to amend their pleadings where discovery un-
covers new information. But, we reject Brew-
er’s contention that the grounds for his bad
faith claim were developed only as a result of
the discovery immediately preceding the Au-
gust 13, 2001, deadline. A claim for bad faith
in the payment of insurance benefits requires
that “(1) the insurer has no reasonable basis
for denying or delaying payment of the claim
or (2) the insurer knew or should have known
that there was no reasonable basis for denying
or delaying payment of the claim.” Texas
Farmers Ins. Co. v. Soriano, 881 S.W.2d 312,
317 (Tex. 1994).

    Brewer contends that, as a result of dis-
covery preceding the August 13, 2001, dead-
line, he learned that Central States’ in-house
medical expert was an internist without spe-
cific orthopedic experience and that critical
pages were missing from his claim file.7 The
basis of a bad faith claim, however, lies in the
reasonableness of Central States’ refusal to
pay benefits. This reasonableness (or lack
thereof) should have been apparent to Brewer
long before discovery conducted on the heels


   7
      Central States objected to the discovery of
these documents based on the attorney-client
privilege.

                                                    8
