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Marr v. Abercrombie & Fitch Stores, Inc.

United States District Court, E.D. North Carolina, Western Division

June 19, 2015



JAMES C. FOX, Senior District Judge.

This matter is before the court on the Motion for Partial Summary Judgment [DE-29] filed by Defendants Abercrombie & Fitch Stores, Inc. and J.M. Hollister, LLC (collectively, "Defendants"). Defendants contend that Plaintiff Jennifer Taylor Marr ("Marr") failed to produce a report for her treating physician, Dr. Richard Alioto, in violation of Rule 26(a)(2)(B) and failed to sufficiently disclose him as an expert witness under Rule 26(a)(2)(C). Defendants argue that because of these perceived deficiencies, this court should not allow Marr to rely on Dr. Alioto's expert testimony in this matter, and allow Defendants' motion for summary judgment on her claims for medical treatment she incurred after August 24, 2012, and for certain damages. Alternatively, Defendants argue that Marr's evidence contradicts her pleadings and is unduly speculative. For the reasons more fully set forth below, the Motion [DE-29] is DENIED.


On August 17, 2012, Marr was paying for children's clothing at Defendants' Hollister store at the Cary Town Center Mall in Cary, North Carolina, when the store manager knocked a perfume bottle off of a counter. The bottle fell on a hard tile floor and shattered, causing a shard of broken glass to fly into Marr's ankle. Marr received treatment for the laceration soon after the incident, but subsequently sought additional treatment from Dr. Alioto of the Duke University Medical Center's Division of Orthopedics. Following an MRI scan to Marr's ankle, Dr. Alioto diagnosed a "postenor tibial tendon laceration" on October 11, 2012. Subsequently, Dr. Alioto performed surgery to repair the damage in her right ankle area.

On January 23, 2014, Marr filed a negligence action against Defendants in Johnston County Superior Court, seeking compensation for her medical bills, lost wages, and other damages. Defendants' subsequently filed a Notice of Removal in this court on March 5, 2014. Thereafter, on June 12, 2014, Marr served Defendants with her Initial Pretrial Disclosures pursuant to Rule 26(a)(i) of the Federal Rules of Civil Procedure. In those disclosures, Marr identified her treating physician, Dr. Alioto, as a witness in this case and also provided Defendants with a complete set of her medical records, including all of Dr. Alioto's medical records and reports. Those records included Dr. Alioto's record of October 3, 2012, in which he states: "I think her laceration caused an injury to the posterior tibial tendon retinaculum." Resp. to Mot. for Summ. J., Ex. 6 [DE-30-7] at 50. Marr contends that prior to the initiation of this lawsuit, she also provided Defendants with Dr. Alioto's operative report, which stated that "the retinacular layer had an area of repair from apparently where the objects violated the retinacular layer, as well as the underlying tendon." Mem. in support of Mot. for Summ. J., Ex. B, Alioto Treatment Records [DE-29-3] at 3. Additionally, the Pretrial Disclosures also included a letter from Dr. Alioto, in which he stated Marr "had a posterior tibial tendon repair following a laceration to the tendon which occurred on August 17, 2012.... I do believe this injury resulting [sic] in a permanent injury to her though rather small." Resp. to Mot. for Summ. J., Ex. 6 [DE-30-7] at 31.

The April 28, 2014 Scheduling Order in this case provides, "[r]eports from retained experts are due from Plaintiff on or by October 30, 2014." Scheduling Order [DE-13] at 1. After the entry of the Scheduling Order, the parties engaged in formal discovery, and on July 7, 2014, Marr served her responses to Defendants' First Set of Interrogatories and Requests for Production of Documents. In response to Defendants' Interrogatory No. 4, Marr stated:

Plaintiff will identify the expert witnesses who might be called to testify on her behalf pursuant to the Discovery Plan filed in this action. However, it is anticipated that plaintiff will call some of her medical providers, including Dr. Richard J. Alioto, as expert witnesses in this case. It is anticipated that these providers, including Dr. Alioto, will testify regarding their histories taken, their examinations and testing, their treatment of plaintiff's conditions, their prognosis, medical causation, pain and suffering, mental anguish, permanent injury, and future medical treatments and the costs associated therewith. Plaintiff anticipates that these medical providers, including Dr. Alioto, will base their opinions on the histories they have taken, their examinations and treatments, their review of medical records, and their knowledge, experience, and expertise that they have acquired in their fields of medicine. All of the reports from the medical doctors have been produced to defense counsel as part of plaintiff's Initial Pre-Discovery Disclosures.

Mem. in Support of Mot. for Summ. J., Ex. C [DE-29-4] at 3. Following this disclosure, Defendants did not request a more specific statement, did not file a motion to compel, or otherwise seek clarification of Dr. Alioto's anticipated testimony until his deposition on February 4, 2015.

During his deposition, Dr. Alioto testified that he was not retained or specially employed to provide expert testimony in this case, and that he was providing expert opinions based solely on his role as one of Marr's treating healthcare providers. He also testified that he started forming his opinions regarding causation at the time he first evaluated Marr-prior to her retaining legal counsel. Resp. in Opp. to Mot. for Summ. J., Ex. 4 [DE-30-5] at 7-8, 38-40.

Defendants now move under Rules 26 and 56 of the Federal Rules of Civil Procedure for an order dismissing Marr's claims for medical treatment after August 24, 2012, and for damages related to her tom posterior tibial tendon.


A. Standard of Review

Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose the identities of expert witnesses in advance of trial. Rule 26(a)(2)(B) further provides that, unless a court orders otherwise, when "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, " such disclosures "must be accompanied by a written report" setting forth the relevant details of the witness's testimony. The report must specifically include:

(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 ...

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