                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
Winifred Owens-Hart,                      )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )                 Civil No. 14-cv-00758 (APM)
                                          )
Howard University,                        )
                                          )
      Defendant.                          )
_________________________________________ )


                         MEMORANDUM OPINION AND ORDER

       Before the court is Defendant Howard University’s Motion to Compel Expert Discovery

and Expert Disclosure, ECF No. 35 [hereinafter Def.’s Mot.]. Defendant’s Motion seeks to compel

Plaintiff Winifred Owens-Hart to (1) conform her expert disclosure to Federal Rule of Civil

Procedure 26(a)(2)(C), and (2) produce documents related to her expert. For the reasons explained

below, Defendant’s Motion to Compel is denied.

I.     BACKGROUND

       Briefly, the relevant background is as follows. Plaintiff alleges that her employer, Howard

University, failed to accommodate her disability—occupational asthma. Compl., ECF No. 1,

¶¶ 10-11. Plaintiff, who was a Professor of Ceramic Arts at Howard, contends that her condition

was caused and later exacerbated by her exposure to a dust-filled ceramics studio, which was

poorly ventilated and inadequately cleaned, and that her employer failed to accommodate her

condition. Id. ¶¶ 9-10, 20-24. To support her claim, Plaintiff designated her treating physician,

Dr. Jeff B. Hales, as an expert pursuant to Rule 26(a)(2)(C). Def.’s Mot., Ex. E, ECF No. 35-7, at
1. On or about September 17, 2015, Plaintiff provided a Second Supplemental Disclosure to

Defendant, which stated in full as follows:

               Dr. Jeff B. Hales, previously identified as a fact witness in Plaintiff’s initial
        disclosures on June 23, 2015, will testify as a fact witness as well as an expert
        witness regarding Plaintiff’s diagnosis, symptoms, treatment, accommodation
        requests, deterioration over time, and her prognosis.

                Dr. Hales has treated Ms. Owens-Hart’s respiratory/pulmonology condition
        since 2009. He will attest that repeated exposure to a hazardous dust-filled
        ceramics studio and office has resulted in her severe and persistent asthma. He will
        also describe her symptoms and the prognosis for her condition. He is also expected
        to testify that the continued exposure to inhaled irritants continuing into 2013
        aggravated her condition and that he recommended daily cleaning of her ceramics
        studio and office, adequate filtering and ventilation systems, and an air purification
        system, as necessary to maintain her lung health. He is also expected to testify that
        her continued exposure to the unclean and inadequately vented ceramics studio and
        her office caused an increase in the inflammation of her lower airways so that she
        now has, and will always have, persistent asthma.

                Further medical documentation is attached.

Id. at 1-2.

        Before Plaintiff designated Dr. Hales as an expert witness, Defendant served Plaintiff with

Requests for Production of Documents, one of which—Request 23—sought documents

concerning any experts designated by Plaintiff. See Def.’s Mot., Ex. B, ECF No. 35-4, at 2-3.

Specifically, Request 23 sought 10 categories of records, including: (1) the expert’s most recent

resume; (2) licensing, professional membership, and disciplinary records related to the expert; (3)

the expert’s publications; (4) reports prepared and documents reviewed by the expert; and (5) the

“complete file” of any expert. Id. at 2. According to Defendant, other than an incomplete set of

medical records, Plaintiff has not disclosed any of the requested documents. See Notice, ECF No.

37-1, at 1-2.




                                                   2
II.    DISCUSSION

       A.      The Adequacy of Plaintiff’s Expert Disclosure

       Defendant appears to understand that, as Plaintiff’s treating physician, Dr. Hales is not an

expert “retained or specially employed” by Plaintiff, such that Plaintiff would be required to submit

a written report of the kind required by Rule 26(a)(2)(B). See Def.’s Mot., Def.’s Mem. of P. &

A., ECF No. 35-1 [hereinafter Def.’s Mem.], at 3-4. Instead, Defendant acknowledges that the

disclosure of Dr. Hales need only conform to Rule 26(a)(2)(C), which requires the sponsoring

party to disclose the “subject on which the witness is expected to present evidence” and “a

summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P.

26(a)(2)(C)(i)-(ii); see also Def.’s Mem. at 3 (arguing only a failure to comply with Rule

26(a)(2)(C)); Williams v. Devlin, 100 F. Supp. 3d 8, 12 (D.D.C. 2015) (“[A] treating physician can

provide expert testimony even without an expert report so long as the expert disclosure informing

the opposing party of the witness complies with Federal Rule of Civil Procedure 26(a)(2)(C).”);

Daniels v. District of Columbia, 15 F. Supp. 3d 62, 69-70 (D.D.C. 2014) (observing that the

advisory committee notes to the 2010 amendments to Rule 26 “expressly recognize that treating

physicians are required to submit Rule 26(a)(2)(C) disclosures”).

       Nevertheless, Defendant advances two arguments for why Plaintiff’s disclosure is

deficient. First, Defendant contends that “[m]erely stating the ‘topics of the opinions’ without

stating an ‘actual opinion’ and referencing large materials as sources without providing a brief

account are insufficient.”    Def.’s Mem. at 4.       Second, Defendant argues that “Plaintiff’s

Supplemental Disclosure is akin to a general expert statement in a personal injury action –

causation, aggravation, and permanency,” and asserts that “absent an expert report, a treating




                                                 3
physician may not testify about causation, permanency, and prognosis.” Id. The court rejects both

arguments.

               1.      Sufficiency of Disclosure

       As noted, with respect to experts not retained or specially employed, Rule 26(a)(2)(C)

requires disclosure of the “subject matter on which the witness is expected to present evidence”

and “a summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ.

P. 26(a)(2)(C)(i)-(ii). Our Court of Appeals appears not to have addressed how much detail is

required in a disclosure to satisfy Rule 26(a)(2)(C). The advisory committee notes to Rule

26(a)(2)(C), however, provide some guidance. Rule 26(a)(2)(C) was added in 2010 to make clear

that testifying experts who are not “specially employed”—such as treating physicians—need not

submit a detailed expert report. See Fed. R. Civ. P. 26(a)(2)(C) advisory committee’s note (2010

Amendments) [hereinafter Advisory Comm. Note] (“Rule 26(a)(2)(C) is added to mandate

summary disclosures of the opinions to be offered by expert witnesses who are not required to

provide reports under Rule 26(a)(2)(B) and of the facts supporting those opinions.”); Daniels, 15

F. Supp. 3d at 69. The advisory committee note explains that a disclosure under Rule 26(a)(2)(C)

is “considerably less extensive than the report required by Rule 26(a)(2)(B).” Advisory Comm.

Note. It directs “[c]ourts [to] take care against requiring undue detail, keeping in mind that these

witnesses have not been specially retained and may not be as responsive to counsel as those who

have.” Id. It also provides that “[t]he (a)(2)(C) disclosure obligation does not include facts

unrelated to the expert opinions the witness will present.” Id.

       Applying the foregoing guidance here, the court finds that Plaintiff’s disclosure as to

Dr. Hales, in combination with Plaintiff’s disclosure of Plaintiff’s medical records, satisfies Rule

26(a)(2)(C). Plaintiff’s disclosure easily satisfies two of Rule 26(a)(2)(C)’s requirements—it



                                                   4
identifies the “subject matter” on which Dr. Hales is expected to present evidence and it

summarizes his opinions as to those subject matters.

       The disclosure identifies four subjects as to which Dr. Hales is expected to testify: (1)

Plaintiff’s respiratory/pulmonology condition and her symptoms since 2009; (2) the cause of her

condition; (3) Dr. Hales’ past recommendations about how to manage Plaintiff’s condition through

changes in her workplace environment; and (4) the prognosis for her condition. Def.’s Mot., Ex.

E at 1. It also summarizes Dr. Hales’ opinions as to those four subjects: (1) Plaintiff suffers from

severe and persistent asthma; (2) her repeated exposure to a hazardous dust-filled ceramics studio

and office caused and aggravated her condition; (3) he had recommended daily cleaning of her

ceramics studio and office, adequate filtering and ventilation systems, and an air purification

system “as necessary to maintain her lung health”; and (4) as a consequence of her exposure to an

unclean and unvented ceramics studio, Plaintiff always will suffer from persistent asthma. Id. at

1-2. The court, therefore, disagrees with Defendant’s contention that the disclosure merely states

the “‘topics of the opinions’ without stating an ‘actual opinion.’” Def.’s Mem. at 4.

       A Rule 26(a)(2)(C) disclosure also must contain a summary of the “facts” as to which the

expert is expected to testify, in addition to the expert’s “opinions.” Fed. R. Civ. P. 26(a)(2)(C).

Discerning fact from opinion, however, is not always easy. See Nat’l Ass’n of Mfrs. v. SEC, 800

F.3d 518, 528 (D.C. Cir. 2015) (observing, in another context, that the distinction between “fact”

and “opinion” is “often blurred”). And it is not easy here. For instance, the disclosure that

Dr. Hales “will attest that repeated exposure to a hazardous dust-filled ceramics studio and office

resulted in [Plaintiff’s] severe and persistent asthma” arguably contains some facts—for instance,

specifying Plaintiff’s “repeated exposure” to the ceramics studio and describing it as “dust-filled.”

But does Plaintiff’s disclosure contain a sufficient “summary” of facts to satisfy Rule 26(a)(2)(C)?



                                                 5
         Ultimately, the court need not answer that question in regard to the disclosure itself,

because the court is satisfied that overall Plaintiff has met her obligations under Rule 26(a)(2)(C).

Since making her initial disclosure on September 17, 2015, Plaintiff has provided Defendant with

a supplemental disclosure which attached 123 pages of Plaintiff’s medical records that were

prepared by Dr. Hales.1 Those medical records provide factual details regarding Dr. Hales’

diagnosis and treatment of Plaintiff, as well as his recommendations for workplace

accommodations to mitigate further harm to her respiratory system. The medical records, in

combination with her written disclosure, therefore satisfy Plaintiff’s obligation to provide

Defendant with a “summary of facts” to which Dr. Hales is expected to testify.

         Defendant relies on Little Hocking Water Association, Inc. v. E.I. DuPont de Nemours and

Co., No. 2:09-cv-1081, 2015 WL 1105840 (S.D. Ohio Mar. 11, 2015), to argue that “referencing

large materials as sources without providing a brief account” is insufficient to satisfy

Rule 26(a)(2)(C)’s summary-of-fact requirement. Def.’s Mem. at 4. In Little Hocking, the court

held that “it does not suffice to reference large bodies of material as sources of facts, without

stating a brief account of the main points from those large bodies of material on which the expert

relies.” 2015 WL 1105840 at *9. The court does not necessarily disagree with that principle, but

it is inapplicable here. In Little Hocking, one of the expert’s disclosures relied on “larger bodies

of information,” including a report that was over one thousand pages long. Id. at *10. “[W]ithout

any brief summary of the main facts from the report on which the expert relies,” the court held,

Rule 26(a)(2)(C)’s “summary of facts” requirement was not satisfied. Id. Here, by contrast,




1
  The supplemental disclosure states: “Plaintiff has submitted all medical documentation she has obtained from Dr.
Hales, which is attached. Dr. Hales’ office has informed counsel for Plaintiff that they have taken the necessary steps
to retrieve the remainder of Professor Owens-Hart’s medical records from its off-site storage facility. Plaintiff will
forward those records to Defendant as soon as they are received from Dr. Hales.” Pl.’s Second Expert Disclosure,
ECF No. 29, at 2.

                                                          6
Plaintiff’s disclosure did not involve or reference a large body of material; instead, it referenced

123 pages of Plaintiff’s medical records—hardly an overwhelming quantity, and far short of the

more than 1,000 pages presented in Little Hocking. The court, therefore, finds Little Hocking to

be inapposite.

                 2.    Limitation On Subject Matter of Testimony

       The court likewise rejects Plaintiff’s second argument that Dr. Hales may not testify about

“causation, permanency, and prognosis” absent offering an “expert report.” Def. Mem. at 4. One

of the primary purposes of Rule 26(a)(2)(C) was to clarify that treating physicians could testify as

to both their observations and their expert opinions as to a patient without submitting a detailed

expert report. See Daniels, 15 F. Supp. 3d at 70-71; Advisory Comm. Note (“A witness who is

not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also

provide expert testimony under Evidence Rule 702, 703, or 705. Frequent examples include

physicians or other health care professionals . . . who do not regularly provide expert testimony.”).

In addition to the Advisory Committee Note, one commentator has described treating physicians

as a “classic example” of the kind of expert falling under Rule 26(a)(2)(C)—that is, one “who not

only testifies about personal observations during the course of treatment, but also offers an opinion

about causation, standard of care, diagnosis, or permanence of injury.” David H. Kaye et al., The

New Wigmore: A Treatise on Evidence: Expert Evidence § 4.2.2 (2016) (citations omitted). Thus,

the only limitations on the presentation of opinion testimony by a treating physician are those

imposed by the Federal Rules of Evidence, particularly Rules 702 and 703.

       Defendant relies primarily on Hancock v. Washington Hospital Center, 13 F. Supp. 3d 1

(D.D.C. 2014), for the proposition that “a treating physician can[not] offer an opinion on causation

or proffer ‘forward looking’ testimony.” Def.’s Mem. at 4. But Hancock does not stand for such



                                                 7
a proposition at all. Hancock was a post-trial decision in which the court re-affirmed a pre-trial

evidentiary ruling allowing into evidence testimony and other evidence from the plaintiff’s treating

physician. In its pre-trial ruling, the court actually had overruled the defendant’s objection that

the testimony of the plaintiff’s physician should be excluded because it pertained to “issues of

causation, foreseeability, prognosis and permanency of her medical condition and could not be

elicited in the absence of an expert report.” Hancock, 13 F. Supp. 3d at 11.

         In its post-trial ruling, the court reiterated that “a treating physician who testifies regarding

the opinions he gave contemporaneously during his treatment of a patient need not provide an

expert disclosure,” except under Rule 26(a)(2)(C). Id. At trial, however, the treating physician

had not “offer[ed] any testimony on causation or forward-looking opinion.” Id. at 12. The court’s

post-trial ruling, therefore, did not reach the question that Defendant in this case claims the court

answered in the negative—whether a treating physician can offer an opinion on causation or

“forward looking” testimony. Id. If anything, the court’s pre-trial ruling supports the contrary

proposition, namely, that a treating physician, like Dr. Hales, can testify about causation and

prognosis, so long as his opinions are premised on observations of the patient made during

treatment and, importantly, not for purposes of litigation.2 See The New Wigmore § 4.2.2

(observing that “the dominant position is that percipient fact experts may also offer opinions . . .

so long as those opinions derive from their observations” and that “[m]any courts have also

permitted causation testimony under this standard.”) (citations omitted).3


2
  The other main case cited by Defendant, Kirkham v. Societe Air France, 236 F.R.D. 9 (D.D.C. 2006), provides little
support for its position. First, the case precedes the 2010 amendment to Rule 26. Second, Kirkham did not reach the
conclusion that a treating physician can never testify about causation, prognosis, and permanency of injuries. The
court concluded that whether such testimony was permissible without an expert report was fact-dependent. See id. at
12-13.
3
  Defendant also argues that Dr. Hales is subject to the expert report disclosure requirements of Rule 26(a)(2)(B),
because Plaintiff stated in a supplemental interrogatory response that “Dr. Jeff B. Hales has been consulted to provide
opinion testimony in this lawsuit.” Def. Mem. at 5. The court does not interpret that statement as meaning Plaintiff
“retained or specially employed [Dr. Hales] to provide testimony in the case,” which, if true, would trigger the expert

                                                          8
        B.       Responses to Document Requests

        The court now turns to Defendant’s motion to compel a response to Document Request 23,

which seeks a host of documents concerning Dr. Hales. As noted, Request 23 seeks 10 categories

of records concerning Dr. Hales, including: (1) a recent resume; (2) licensing, professional

membership, and disciplinary records; (3) his publications; (4) the reports that he prepared and the

documents that he reviewed; and (5) the “complete file” on Dr. Hales. Def.’s Mot., Ex. B at 2.

According to Defendant, Plaintiff has refused to respond to these requests. Id. at 2-3.

        Plaintiff responds that “Plaintiff has already provided Defendant with all of Dr. Hales’

records including the reports that he routinely generated while treating her. . . . [S]he is not in

possession of any of the [remaining] requested documents and cannot manufacture what she does

not have.” Pl.’s Opp’n, ECF No. 36, at 4-5. Plaintiff further argues that “[t]here is no provision

in the discovery rules to require a party to actively seek documents and information from a third

party,” and by “third party” she means Dr. Hales. Id. at 5.

        A party need only respond to a request for documents that are within its “possession,

custody, or control.” Fed. R. Civ. P. 34(a)(1). The documents Defendant seeks under Request 23

plainly are in Dr. Hales’—not Plaintiff’s—“possession” or “custody.” The question, therefore, is

whether the documents are within Plaintiff’s “control”?

        The Court of Appeals has held that, for purposes of document discovery, “‘[c]ontrol’ is

defined as the legal right, authority or ability to obtain documents upon demand.” U.S. Int’l Trade

Comm’n v. ASAT, Inc., 411 F.3d 245, 254 (D.C. Cir. 2005) (citations omitted). A straightforward




report requirement of Rule 26(a)(2)(B). Plaintiff’s supplemental response makes clear that Dr. Hales has treated her
“since 2009.” Def.’s Mot., Ex. E at 1. Moreover, the court has reviewed Plaintiff’s medical records disclosed to
Defendant on January 6, 2016, see Pl.’s Second Expert Disclosure, and it is apparent that Dr. Hales formulated his
opinions about Plaintiff’s condition, her need for accommodation, and her prognosis long before this litigation ever
commenced.

                                                         9
application of this definition suffices to conclude that Plaintiff does not “control” most of the

records sought in Request 23. Plaintiff has no legal right, authority or ability to obtain Dr. Hales’

most recent resume; any licensing, membership, or disciplinary records; or any publications he has

authored. See Def.’s Mot., Ex. B at 2 (Request 23 a-e, h). Moreover, because Dr. Hales is not

required to produce a report under Rule 26(a)(2)(B), Plaintiff does not control any “reports,” if

any, that he has prepared. See id. (Request 23 f, j).

         The only documents sought under Request 23 that might conceivably be within Plaintiff’s

“control” are her medical records. See id. (Request 23 f, i (seeking “all reports made by the expert

regarding his/her findings or opinions relating to or regarding the Plaintiff, his alleged injuries and

damages, or to this litigation,” as well as documents “reviewed by or relied upon” by the expert)).

Some courts, however, have held that a patient does not “control” medical records about her

treatment, which are in her doctor’s possession. See, e.g., Clark v. Vega Wholesale Inc., 181

F.R.D. 470, 472 (D. Nev. 1998) (“The relationship between the Plaintiff and her doctor is not

sufficient to establish control.”); 8B Charles A. Wright, et al., Federal Practice and Procedure §

2210 (3d ed.) (observing that “[a] party has been found not to control the records of a doctor who

has examined him or her”) (citing cases). Our Court of Appeals appears not to have passed on the

issue.

         This court need not decide that question here. Plaintiff already has disclosed a substantial

amount of her medical records to Defendant —123 pages, to be precise—and has stated that she

intends to obtain and produce any remaining records from Dr. Hales. See Pl.’s Second Expert

Disclosure at 2. Therefore, to the extent Plaintiff has not yet produced any of her medical records




                                                  10
from Dr. Hales, she shall obtain and produce them promptly and, in no event, later than April 25,

2016.4

III.     CONCLUSION

         For the foregoing reasons, Defendant’s Motion to Compel is denied.




Dated: March 29, 2016                                      Amit P. Mehta
                                                           United States District Judge




4
  At the post-discovery conference on March 2, 2016, Defendant raised the possibility of taking an out-of-time
deposition of Dr. Hales. Defendant has not formally made that request by motion.

                                                     11
