NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 5, 2009
Decided September 2, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐1650
JOHN BLAMEUSER, Appeal from the United States District
Plaintiff‐Appellant. Court for the Northern District of Illinois,
v. Eastern Division.
FREDERICK HASENFANG, No. 06 CV 1987
Defendant‐Appellee.
David H. Coar,
Judge.
O R D E R
John Blameuser claimed that Chicago police officers used excessive force when arresting
him, resulting in severe injuries that required hospitalization. The officers had their own
version of events (they claimed he slipped and fell while evading arrest), and the case went to
trial. Shortly before trial, Blameuser disclosed that he wanted to present the testimony of Dr.
James Prieto, the physician who treated him at the hospital. But the district court granted
defendants’ motion in limine, which precluded his testimony, finding that it amounted to
“expert testimony” on causation and Rule 26(a)(2)(B) required an expert report. Although
treating physicians are not required to file expert reports, we conclude that any error
committed by the district court was harmless and does not merit reversal. So, we affirm the
No. 08‐1650 2
district court’s judgment.
I. BACKGROUND
On the evening of January 24, 2005, officers responded to a citizen’s call reporting that
his garage was being burglarized. The responding officers (Officers Regina Reyes and John
Lepkowski) saw John Blameuser and another individual attempting to break into the garage.
The officers chased the thieves as they attempted to flee.
Officer Frederick Hasenfang, who arrived with other officers to provide backup, saw
Blameuser jump out of the truck and chased him into a backyard where Officer Hasenfang
eventually arrested him. During the course of these events, Blameuser was injured. The
officers placed him in an ambulance, which took him, unconscious, to the emergency room at
Advocate Christ Hospital. There, Dr. Prieto treated Blameuser for various injuries.
The cause of Blameuser’s injuries was the critical issue at trial. According to Blameuser,
he was beaten, punched, and kicked by the officers until he was unconscious, even though he
was not resisting arrest. The officers’ version of the story was that Blameuser, who was heavily
intoxicated, slipped and fell while trying to run away from them. The officers maintained that
Blameuser injured himself in the fall. Blameuser sued the City of Chicago and various officers,
claiming that the officers’ use of force was excessive and violated his Fourth Amendment
rights.
Although discovery was initially set to close on November 30, 2006, the district court
granted several motions extending the discovery cut‐off. Shortly before the last cut‐off date,
July 31, 2007, Blameuser sought to extend discovery so he could depose Dr. Prieto. This time
the court denied the motion, citing the many extensions it already had granted, and finding that
there was no excuse for Blameuser’s delay.
Three months after the final discovery cut‐off date and thirty‐two months after Dr.
Prieto treated him, Blameuser deposed Dr. Prieto. During that videotaped deposition, Dr.
Prieto testified that although he did not remember treating Blameuser, his chart showed that
he gave Blameuser medication for pain and that he had examined Blameuser’s spine and noted
tenderness. The chart also indicated that Dr. Prieto had made a “differential diagnosis of
assault.” However, when questioned by opposing counsel, Dr. Prieto admitted he did not
know the basis for that diagnosis. He then explained that a “differential diagnosis” is a
potential diagnosis consistent with the treater’s findings on history and physical examination.
Blameuser’s counsel asked Dr. Prieto whether Blameuser’s injuries were consistent with
Blameuser’s statement that he was kicked in the face and body. Dr. Prieto responded the
findings “could be” consistent with this statement.
At trial, Blameuser sought to have Dr. Prieto testify as a witness via videotaped
deposition, and defendants objected. In granting defendants’ motion in limine, the court ruled
No. 08‐1650 3
that “any expert testimony by Dr. Prieto concerning causation or his medical diagnosis of
‘assault’ would not comply with the requirements of Fed. R. Civ. Pro. 26(a) or Fed. R. Evid. 702
and 703.”
By the time the case was tried, Blameuser had dismissed his claims against every
defendant except Officer Hasenfang. The jury heard the testimony of Officer Hasenfang,
Blameuser, the paramedic who took Blameuser to the hospital, and two nurses who treated
Blameuser at the hospital. The defense also called Dr. Richard Goldberg, who testified, as an
expert, that Blameuser’s injuries were not consistent with his allegations that he was beaten by
the police.
At trial, Blameuser wanted Dr. Prieto to testify on the issue of causation, but the district
court rejected that request and only admitted Dr. Prieto’s chart into evidence. The jury returned
a verdict in favor of Officer Hasenfang, and Blameuser appeals the district court’s ruling
excluding Dr. Prieto’s testimony.
II. ANALYSIS
We review the district court’s decision to exclude expert testimony for abuse of
discretion. Musser v. Gentiva Health Servs, 356 F.3d 751, 755 (7th Cir. 2004). Under this
standard, we will not reverse the district court’s ruling unless “(1) the record contains no
evidence upon which the court could have rationally based its decision; (2) the decision is based
on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual
findings; or (4) the decision clearly appears arbitrary.” Id. However, “[e]ven an erroneous
evidentiary ruling can be deemed harmless if the record indicates that the same judgment
would have been rendered regardless of the error.” Goodman v. Ill. Dept. of Fin. and Prof’l
Regulation, 430 F.3d 432, 439 (7th Cir. 2005).
We begin with Rule 26 of the Federal Rules of Civil Procedure. Rule 26 requires litigants
to disclose the identity and contact information of potential fact witnesses, and the identity of
“any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703,
or 705.” Fed. R. Civ. P. 26(a)(1)(A); 26(a)(2)(A). Additionally, a litigant who intends to
introduce expert testimony must provide 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.” Fed. R.
Civ. P. 26(a)(2)(B). The rule also outlines the information that such a report must contain. Rule
37 provides that “[a] party that without substantial justification fails to disclose information
required by Rule 26(a) . . . shall not, unless such failure is harmless, be permitted to use as
evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.”
Fed. R. Civ. P. 37(c)(1).
Although we have held that in some circumstances, treating physicians must be
disclosed as experts pursuant to Rule 26(a)(2)(A), Musser, 356 F.3d at 758, we have never held
No. 08‐1650 4
that treating physicians must file expert reports. According to the Advisory Committee Notes
to the 1993 amendments, Rule 26(a)(2)(B), which governs expert reports, applies only to those
experts who are “retained or specially employed to provide such testimony in the case,” and
treating physicians in particular “can be deposed or called to testify at trial without any
requirement for a written report.” See also Fielden v. CSX Transp., Inc., 482 F.3d 866, 870 (6th Cir.
2007) (expert report not required for treating physician testifying about causation); Watson v.
United States, 48 F.3d 1100, 1107 (10th Cir. 2007).
The district court precluded Dr. Prieto’s “expert testimony” on the ground that he did
not file a Rule 26(a)(2)(B) report. Neither the district court nor Officer Hasenfang makes clear
why Dr. Prieto’s testimony amounts to “expert” testimony. His testimony (which relies almost
exclusively on the chart he prepared for Blameuser during his visit to the emergency room)
concerns his treatment of Blameuser and his putative diagnosis of assault, which he reached
during the course of his treatment. Such testimony does not require an expert report. See, e.g.,
Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir.1999) (“A treating physician is not considered an
expert witness if he or she testifies about observations based on personal knowledge, including
the treatment of the party.”)); cf. United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005)
(noting that treating physician’s diagnosis of an injury is lay testimony while a hypothesis
about the cause of injury might be expert testimony). And Dr. Prieto was not retained or
specially employed to provide testimony in this case.
It is plausible that the district court thought Dr. Prieto went too far with his post‐hoc
conclusion that Blameuser’s injuries “could be” consistent with Blameuser’s account of what
happened to him. An interesting question is what to do with a treating physician who
proposes to testify in the manner of a hired expert, i.e., offering an opinion regarding what
might have happened to the patient that does not rely on that physician’s personal treatment
of the patient. See, e.g. Musser, 356 F.3d at 758 n.3 (noting district court disagreement over the
application of Rule 2(a)(2)(B) to treating physicians). But we need not delve too far into the
limits of Rule 26(a)(2)(A) or (B) because any error by the district court in excluding Dr. Prieto’s
testimony was harmless in this case. It is plain from Dr. Prieto’s deposition testimony that he
did not remember anything about Blameuser that was not recorded in his chart. That chart,
which contained Dr. Prieto’s differential diagnosis of assault, was admitted into evidence, and
nurses offered their first hand observations of Blameuser’s condition when he arrived at the
emergency room. So Blameuser retained any material benefit that he might have derived from
Dr. Prieto’s testimony. Therefore, we find no reversible error.
III. CONCLUSION
The judgment of the district court is AFFIRMED.