Ctrl St Hlth & Life v. Brewer

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

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_________________________
Appeals from the United States District Court
for the Northern District of Mississippi
m 1:99-CV-383-D-D
_________________________
Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Central States Health & Life Company of
Omaha, Nebraska (“Central States”), appeals
a declaratory judgment finding Herbert Leon
Brewer, III, continuously disabled for a period
of twenty-four months and therefore entitled
to benefits under a Central States disability in-
surance policy. Brewer appeals the denial of
his motion to add a counterclaim for bad faith.
Finding no reversible error, we affirm.
I.
In January 1999, Brewer, a chiropractor,
was issued a Central States disability policy
entitling him to benefits in the event of “total
disability,” defined by the policy as
[the] inability, as a result of sickness or
injury to perform the substantial and ma-
terial duties of your principal occupation
for the first 24 months of continuous
disability. After the first 24 months of
continuous disability, total disability
means the inability to engage in any
occupation for which you are qualified
by reason of education, training or expe-
rience.
The policy also provided Brewer with benefits
in the event he became “partially disabled,”
defined as “the inability, as a result of sickness
or injury, to perform one or more of the main
duties of your principal occupation, or the in-
ability to perform those duties on a full-time
basis.”
In 1996, while incarcerated, Brewer
strained his upper extremities and neck after he
slipped on a wet concrete walkway. Over one
year later, he contacted Central States and
initiated a claim for disability benefits, submit-
ting medical records from three different
doctors, including his treating physician, Dr.
Alan Pritchard, who stated that Brewer was
“totally disabled” as of the date of the acci-
dent.1
In August 1999, Central States denied
Brewer’s claim, then filed a declaratory judg-
ment action seeking a determination that
Brewer was neither totally nor partially dis-
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
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Pritchard later retracted this opinion but still
concluded that additional testing was needed to
determine the extent of Brewer’s disability.

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

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form the substantial and material duties of his
principal occupation. Childress later deposed,
however, that Brewer “did meet the definition
of total disability.” Central States argues that
Childress’s deposition testimony is outside the
scope of what amounts to an incomplete
expert report.
The report’s statement that Brewer was un-
able to perform his occupation or any occu-
pation for a minimum of six to eight weeks
following the accident is not inconsistent with
Childress’s deposition testimony that Brewer
was totally disabled for twenty-four months.
For one, the policy defines total disability as
the inability to perform only the claimant’s
principal occupation for a twenty-four-month
period. Second, the expert report states that
Brewer was unable to engage in any occu-
pation for a minimum of six to eight weeks;
this does not rule out the possibility of a longer
disability.
In any event, and absent unfair surprise or
bad faith, an expert may testify as to matters
outside his report if the matter is within his
expertise.2 The test is not whether the expert
report covers every conceivable question of
cross-examination, but whether it provides
sufficient detail such that the opposing party is
not surprised.
Central States cannot claim it was surprised
by Childress’s deposition testimony. The re-
port’s conclusion that Brewer is currently un-
able to work full-time as a chiropractor should
have put Central States on notice that Chil-
dress would testify that Brewer was unable to
perform the substantial and material duties of
a chiropractor for a twenty-four-month period
after the accident.3 Indeed, the report con-
cludes that Brewer was unable to perform any
job for a period of six to eight weeks there-
after. Not surprisingly, Central States does
not explain how it was prejudiced.
Second, Central States argues that the re-
port fails to provide satisfactory bases for Chil-
dress’s conclusions. Specifically, Central
States contends that Childress “provides no
summary of the data upon which he allegedly
relied, other than the Defendant’s medical rec-
ords, nor does Dr. Childress in his expert re-
port specify which doctors or which medical
records he reviewed.” In fact, however, the
report’s conclusions are based on a review of
Brewer’s “entire” medical record, including
the “x-rays and MRI scans that document the
cervical disc pathology at several levels.” We
agree with the district court that, in light of
Childress’s stated examination of Brewer’s
entire medical record, it was unnecessary to
inventory the individual documents reviewed.
Third, Central States contends it was pre-
judiced by the report’s omission of the cases in
which Childress has testified within the last
four years. The report states that Childress
has “testified as an expert witness by way of
deposition on numerous occasions over the
last four years,” but omits specific cases in
violation of rule 26(a)(2)(B).
An analysis of the four Sierra Club factors,
however, suggests the district court did not err
2 Shelak v. White Motor Co., 581 F.2d 1155,
1159 (5th Cir. 1978) (citation omitted); DeMarines
v. KLM Royal Dutch Airlines, 580 F.2d 1193,
1201-02 (3d Cir. 1978).
3 Similarly, in concluding that Childress did not
testify outside the scope of his report, the district
court noted that Childress “did not testify as to any
new opinions. He simply expanded and developed
those opinions contained in his report.”

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

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

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

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quiring that all motions other than motions in
limine be filed by August 13, 2001, makes no
express mention of a change in the deadline for
amending pleadings. That deadline was
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
of the August 13 deadline.
The judgment in both appeals is
AFFIRMED.
7 Central States objected to the discovery of
these documents based on the attorney-client
privilege.

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