Schrof v. Clean Earth, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JENNIFER SCHROF,
Plaintiff,
v.
CLEAN EARTH, INC.,
Defendant.
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Civil No. 1:22-1533-CDA
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MEMORANDUM OPINION
BEFORE THE COURT are two defense motions concerning the potential trial
testimony of Dr. David McClure, a physician identified on the Plaintiff’s witness list: a
Motion to Strike and Exclude the witness altogether (ECF 149) and a Motion in Limine
seeking to limit the scope of any testimony to that of a fact witness (ECF 141). For the
reasons stated below, the Court GRANTS Defendant’s Motion in Limine No. 12 as to the
witness testimony and DENIES the Motion to Strike. 1 In many cases, courts address the
prejudice from an improper treating physician disclosure by limiting the testimony to
only those matters arising in the course of treatment. 	As explained herein, due to the
circumstances of this non-disclosure until just before trial, the Court finds that strict
limitations are appropriate. Therefore, Dr. McClure, should he testify, will be limited to
only factual testimony; he may not delve into expert testimony in the manner that
“hybrid” witnesses such as treating physicians often cover.
1 This opinion and the implementing order do not preclude Plaintiff from discussing or
offering into evidence a note provided by Dr. McClure.
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I. 	BACKGROUND
A fulsome recitation of the claims, defenses, and legal contentions in this case
appears in the Court’s memorandum opinion granting in part and denying in part
Defendant Clean Earth’s motion for summary judgment. ECF 116; Schrof v. Clean Earth,
Inc., No. CDA-22-1533, 2025 WL 3089467 (D. Md. Mar. 31, 2025). Relevant to the issues
in the pending motions, Plaintiff Jennifer Schrof alleges that her former employer, Clean
Earth, engaged in unlawful retaliation under Maryland law through a series of actions
that culminated, she contends, in a constructive discharge. 	See Schrof, 2025 WL
3089467, at *5-7, 18. 	In April 2021, shortly before her separation from Clean Earth,
Schrof sought medical leave after a visit with her treating physician, Dr. McClure. See id.
at *7 (summarizing factual background and exhibits). In denying summary judgment on
the retaliation claim, the Court found that Schrof presented sufficient evidence (including
but not limited to the above) to send the claim to a jury. Id. at * 15-19. 2
The nature of the pending motions renders the litigation’s procedural history as
important as the disputed facts and legal contentions. Schrof filed this case in June 2022
and amended the complaint in September 2022. ECFs 1, 29. In June 2023, after resolving
a motion to dismiss, the Court issued a scheduling order imposing a fact discovery
deadline in October 2023 and deferring expert discovery until after resolution of any
summary judgment motion(s). 	ECF 48 at 2. 	Relevant here, Plaintiff’s Rule 26(a)(2)
disclosures were due within 21 days of any summary judgment ruling. 	Id. 	After two
discovery deadline extensions, the parties briefed summary judgment in the summer of
2024. See ECFs 63, 86, 97, 106, 108. The Court held oral arguments on February 2025
2 The Court granted summary judgment on the wage and gender discrimination counts.
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and issued its ruling less than two months later. ECFs 114, 116. The Court held a status
conference on April 8, 2025 regarding the need for a schedule governing the remainder
of the litigation and/or trial. Based on that call, the Court issued an order the same day
scheduling trial (and not any additional discovery). ECF 118.
According to Clean Earth, the first indication that Dr. McClure would be called to
testify arose when the parties prepared the joint pretrial order due in late December 2025.
Mem. in Support of Def.’s Mot. to Strike (“Def.’s MTS”) at 1, ECF 149-1. 	Clean Earth
recounts a history of written discovery including Plaintiff’s four interrogatory responses
between September and December 2023. Id. The relevant interrogatories sought, among
other things, all individuals with knowledge of any facts in the complaint; Plaintiff did not
identify Dr. McClure here. 	Def.’s MTS Ex. 1 at 8-11, ECF 149-3 (Plaintiff’s Answers to
Defendant Clean Earth, LLC’s First Set of Interrogatories). 	Plaintiff identified Dr.
McClure (along with a therapist and an otolaryngologist) in response to the interrogatory
seeking information about any medical provider from whom she sought treatment during
the previous ten years. 	Id. at 13. 	In connection with this response, she authorized
disclosure of medical records associated with the identified providers. 	Id. 	But Clean
Earth insists that until discussing witnesses for the purpose of preparing the joint pretrial
order as directed by the Court, it lacked any indication that Dr. McClure would be called
to testify at trial, and especially as to any matters involving medical diagnosis, causation,
or prognosis. Id. at 1, 3.
In response, Schrof does not challenge this timeline. She confirms her disclosure
of Dr. McClure as a treating provider and her authorization to release her medical records.
Pl’s Opp’n to Def.’s Mot. in Limine at 27-28, ECF 147 (“Pl.’s MIL Opp’n”). Instead, she
emphasizes that, in essence, because Dr. McClure and his medical records were known to
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Clean Earth, regardless of in which interrogatory his name appeared, there is no surprise
about his relevance and potential to testify. Id. Thus, Schrof maintains, Clean Earth could
have deposed Dr. McClure to explore his knowledge and potential testimony yet chose not
to. Id. at 28.
At the February 2, 2026 pretrial conference, the Court discussed the motions and
heard oral arguments from the parties, including Plaintiff’s oral response to the Motion
to Strike. Following that pretrial conference, the Court took the matters concerning this
witness under advisement and held the motions sub curia. See ECF 158. At the second
pretrial conference on February 11, the Court expressed its view that Plaintiff failed to
disclose Dr. McClure in the manners required by both the Federal Rules of Civil Procedure
and Local Rules of the Court. 	The Court stopped short of a firm ruling at that time,
indicated that it continued to consider whether and how the prejudice of the disclosure
violations could be cured, and directed plaintiff’s counsel to provide the summary
required by Federal Rule of Civil Procedure 26(a)(2)(C) and Local Rule 104.10. Plaintiff’s
counsel submitted a letter the following day, and defense counsel filed objections to the
summary (as permitted by the Court during the February 11 conference). ECFs 172, 173.
Plaintiff’s Court-ordered supplement expresses the intent to have Dr. McClure
“testify as a treating physician related to his telemedicine treatment of Plaintiff Schrof on
April 16, 2021” and the letter he provided to Schrof, who provided the same to Clean Earth
as noted above. ECF 172 at 1. Counsel anticipates the witness would “rely upon [facts]
contained in his Progress Notes on that date,” and quotes the progress note—a document
that was filed with both this eve-of-trial submission and its summary judgment briefing.
Id. at 1-2; see also ECF 106-25 (Exhibit 24 to Plaintiff’s Opposition to the Motion for
Summary Judgment). Defense counsel’s response covers much of the same ground as its
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pending motions, albeit with a finer point on the issues: (1) plaintiff’s one-page letter
quoting from the medical documents falls short of the substance required by the Federal
and Local rules, (2) notwithstanding the first point, the summary suggests the witness
would merely read from the documents and thus be an improper use of live testimony,
and (3) plaintiff’s summary does not cure the prejudice associated with Clean Earth’s
inability to explore the plaintiff’s medical history known to Dr. McClure, whose records
for the plaintiff span 2015 through 2023, and any inferences a jury may draw from
testimony that alleges work-related stress based on a single visit in the middle of that
eight-year span. ECF 173.
II. 	ANALYSIS
For the reasons stated below, the Court will grant the motion in limine to limit
Dr. McClure to being a fact witness. The Court recognizes that in most circumstances, a
treating physician, as a “hybrid” witness, enjoys broader latitude than a fact witness and
may explore matters based on some scientific or specialized knowledge applied during
the course of treatment. However, to allow that in this case would permit a clear and
significant disclosure violation without any sanction or opportunity to cure ahead of
trial. The Court is not comfortable with such an implication, and, as explored below, the
defendant experiences prejudice that cannot be fully cured at trial. However, the Court
finds complete exclusion unnecessary to address the problems created by the failure to
disclose a treating physician.
a. 	Plaintiff failed to disclose Dr. McClure as required by the Federal and
Local Rules.
Federal Rule of Civil Procedure 26(a)(2) requires certain disclosures for expert
witnesses, two of which are most pertinent here. 	First, it requires disclosure of “the
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identity of any witness [the party] may use at trial to present evidence under Federal Rule
of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). Second, where a witness is not
retained or specially employed for the pending litigation, the party relying on the witness
must provide a disclosure stating “(i) the subject matter on which the witness is expected
to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary
of the facts and opinions to which the witness is expected to testify.” 	Fed. R. Civ. P.
26(a)(2)(C). This summary disclosure is a shorter, less onerous task than the extensive
written report required of witnesses retained to serve as experts in the litigation. Fed. R.
Civ. P. 26(a)(2)(B). Under the Federal Rules, absent a court order otherwise, the required
expert disclosures must occur at least ninety days before the trial date in general or, in the
case of a rebuttal expert, within thirty days after the disclosure to which the expert would
respond. Fed. R. Civ. P. 26(a)(2)(D).
“Courts have held that a treating physician’s testimony about a patient’s diagnosis,
prognosis, and future medical care is based upon ‘scientific, technical, or other specialized
knowledge,’ thus requiring expert designation under Fed. R. Civ. P. 26(a)(2)(A).” Roop
v. Desousa, 660 F. Supp. 3d 477, 499-500 (E.D. Va. 2023) (citation omitted); see also
Stogsdill v. S.C. Dep’t of Health & Hum. Servs., No. 3:12-0007-JFA, 2017 WL 3142497,
at *15 (D.S.C. July 25, 2017) (finding “that a treating physician’s testimony about a
patient’s diagnosis, prognosis, and future medical care is opinion testimony that falls
under Rule 26(a)(2)(A)’s expert disclosure requirement”), aff’d sub nom. Stogsdill v.
Azar, 765 F. App'x 873 (4th Cir. 2019). There appears to be no dispute that Dr. McClure
was Schrof’s treating physician, not one retained for the purpose of this case. 	This
undisputed circumstance obligated Schrof to identify Dr. McClure as an expert witness
and provide the written summary required by Rule 26(a)(2)(C). 	See MCI Commc’ns
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Servs., Inc. v. Am. Infrastructure-MD, Inc., No. GLR-11-3767, 2013 WL 4086401, at *7–
8 (D. Md. Aug. 12, 2013)) (requiring Rule 26(a)(2)(C) disclosure for treating physicians);
Seamster v. Taylor, No. 4:21-cv-21, 2022 WL 2165545, at *14 (W.D. Va. June 15, 2022)
(same). 	Even without searching court orders and opinions, the general application of
both requirements in this context could not be clearer. In 2010, the Advisory Committee
explained that “[f]requent examples” of expert witnesses excluded from 26(a)(2)(B)’s
requirement “include physicians or other health care professionals and employees of a
party who do not regularly provide expert testimony. Parties must identify such witnesses
under Rule 26(a)(2)(A) and provide the disclosure required under Rule 26(a)(2)(C).”
Fed. R. Civ. P. 26 advisory committee’s note (2010 Amendment, subdivision (a)(2)(C)).
And the Court’s Local Rules reiterate these requirements:
The party must disclose the existence of any hybrid fact/expert witness
pursuant to Fed. R. Civ. P. 26(a)(2)(A), and disclose the subject matter on
which witness is expected to present evidence under Fed. R. of Evid. 702,
703, or 705, as well as a summary of facts and opinions to which the hybrid
fact/expert witness is expected to testify, pursuant to Fed. R. Civ. P.
26(a)(2)(C).”).
L.R. 104.10 (D. Md. 2025). Schrof failed in both regards.
Nothing in the record indicates that Schrof ever attempted to identify Dr. McClure
as a trial witness who would testify on matters commonly within the scope of Rule 702.
She does not argue that she did; more troubling, her briefing on this issue does not even
acknowledge this requirement. Her focus on identifying Dr. McClure in an interrogatory
inquiring about treating medical providers misses the point. See Machie v. Manger, No.
AW-09-2196, 2012 WL 2092814, at *4-5 (D. Md. June 7, 2012) (concluding that the
plaintiff failed “to timely disclose his experts and provide the information required by
Rule 26”; “[A]lthough the Court accepts Plaintiff’s claim that his treating physicians are
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“hybrid witnesses,” . . . Plaintiff's bare and non-specific interrogatory responses do not
satisfy the Rule’s disclosure requirements.”).
Given her failure to designate properly instead of relying on an interrogatory
response, it comes as little surprise that Schrof also did not provide a timely summary
disclosure of the subject matter, facts, and opinions expected in Dr. McClure’s testimony.
The record lacks any indication she attempted to do so before the Court directed counsel
on February 11 to attempt such a summary. Instead, the thrust of her arguments looks to
Sullivan v. Glock, where Judge Grimm explored the contours of treating physicians and
hybrid witnesses and the inapplicability of Rule 26(a)(2)(B)’s extensive written report
requirement as a prerequisite to a treating physician’s ability to testify about diagnosis,
prognosis, and causation based on their course of treatment. See 175 F.R.D. 497, 500–01
(D. Md. 1997). Sullivan does not aid Schrof at all. The Court does not read Clean Earth’s
motions as calling for the extensive report required by Rule 26(a)(2)(B). 	Moreover,
nothing in Sullivan absolves her of Rule 26(a)(2)(A)’s identification requirement or Rule
26(a)(2)(C)’s summary requirement for experts who—for reasons Sullivan articulates—
fall outside of Rule 26(a)(2)(B)’s written report requirement. 3
To the extent Schrof’s arguments suggest that the consent disclosure of medical
records is a meaningful substitution or alternative to the disclosure requirements, she is
incorrect. See Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 703 (8th
3 Of course, Sullivan’s silence on Rule 26(a)(2)(C) cannot be read in Schrof’s favor
because that provision appeared more than a decade after Sullivan articulated the
problems that the amendments sought to address. 	See Fed. R. Civ. P. 26 advisory
committee’s note (2010 Amendment, subdivision (a)(2)(C)) (“This amendment resolves
a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B)
even from witnesses exempted from the report requirement. 	An (a)(2)(B) report is
required only from an expert described in (a)(2)(B).”).
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Cir. 2018). The Court finds Vanderberg, while non-binding, persuasive in its resolution
of similar arguments where the plaintiff failed to properly disclose a treating physician in
accordance with Rule 26(a)(2). In that case, the plaintiff insisted that he identified the
treating physician as such (and as a potential fact witness) and that “his production of
hundreds of pages of medical records, which included operative notes and a letter by [the
treating physician], provided ‘ample notice to Petco that [the physician] would express
causation opinions.” Id. The Eighth Circuit explained:
These arguments, however, cannot change the fact that Vanderberg never
disclosed Dr. Petsche or anyone else as a “witness it may use at trial to
present” 	expert 	testimony. 	Fed. 	R. 	Civ. 	P. 	26(a)(2)(A). 	Nor 	did 	his
production of medical records constitute a disclosure stating “the subject
matter on which [Dr. Petsche was] expected to present” expert testimony.
Fed. R. Civ. P. 26(a)(2)(C)(i). While the records contained facts and
opinions, they did not disclose what facts and what opinions would be
provided by what witnesses. Nor can the hundreds of pages of medical
records reasonably be called a “summary.”
Id. 	The Court joins others in this circuit that have reached the same conclusion. 	See
Seamster, 2022 WL 2165545, at *17 (excluding improperly disclosed testimony based on
the “cogent analysis of Vanderberg”); Marr v. Abercrombie & Fitch Stores, Inc., No. 5:14-
cv-123-F, 2015 WL 3827326, at *5 (E.D.N.C. June 19, 2015) (“Marr’s production of, and
reference to, her medical records from Dr. Alioto does not constitute a summary of his
opinions.” (citation omitted)); Kristensen ex rel. Kristensen v. Spotnitz, No. 3:09-cv-84,
2011 WL 5320686, at *2 (W.D. Va. June 3, 2011) (“Plaintiffs cannot comply with [Rule
26(a)(2)(C)] by disclosing the complete records of the treating physicians in issue.”
(citations omitted)).
Turning to the Court-ordered summary, the Court is concerned that it lacks what
Rule 26(a)(2)(C) intends. 	In about a single page of substance, the document repeats—
largely through quotes—what appears in two documents from Dr. McClure’s file. See ECF
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172; see also ECF 106-25. Of course, Rule 26(a)(2)(C) calls for a disclosure less extensive
and exacting than Rule 26(a)(2)(B), so the Court does not assume the summary must be
exhaustive. But, while precise contours may be difficult to define, there should be more
than general reference to the facts learned and topics to be covered. Two examples from
within this circuit reflect this need to consider not only the language but the purpose of
the Rule. 	In attempting to ascertain the appropriate balance struck by Rule 26(a)(2)’s
varied requirements, Marr adopted the following description:
“[T]his Court finds that a summary of opinions under Rule 26(a)(2)(C)
means a brief account of the main opinions of the expert, and that the
opinions must state a view or judgment regarding a matter that affects the
outcome of the case. A mere statement of the topics of the opinions is
insufficient. Further, this Court finds that a summary of facts supporting
those opinions under Rule 26(a)(2)(C) means a brief account of facts-only
those on which the expert actually relied in forming his or her opinions-that
states the main points derived from a larger body of information; merely
stating the topic matters of facts relied upon does not suffice. Similarly, 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.”
Marr, 2015 WL 3827326, at *5 (quoting Little Hocking Water Ass’n, Inc. v. E.I. DuPont
de Nemours & Co., No. 2:09-cv-1081, 2015 WL 1105840, at *9 (S.D. Ohio Mar. 11, 2015)).
Based on this standard, the Marr court found the rule unsatisfied where an interrogatory
identified the subject matter of the testimony and a medical record identified only a
prognosis but not opinions—including on causation—to be offered by the treating
physician. 	Id. 	Informed by Marr’s analysis, among others, the Seamster court found
insufficient a disclosure that did not specify specific facts and opinions but only “generally
state[d] the topics of . . . ‘diagnoses, signs and symptoms, observations, evaluations,
histories, treatment plans, and permanency ratings . . . along with the facts communicated
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to, or otherwise learned by them in connection with their . . . treatment of [Seamster].”
2022 WL 2165545, at *14 (second and third ellipses in original).
While 	neither 	case 	(or 	the 	examples 	cited 	therein) 	fit 	squarely 	with 	the
circumstances here, they illuminate at least two potential issues with the February 12,
2026 disclosure. First, if the letter’s quotation of the April 2021 note suggesting time off
work is its way of summarizing the opinion to be offered at trial, that suggests that the
opinion is that Schrof experienced “stress related issues from work” that caused “mental
and physical ailments.” 	ECF 172 at 2. 	But other than a general reference to “stomach
issues,” which appears in the April 16, 2021 progress note, nothing in this letter or the
internal progress note summarizes or otherwise identifies what these mental and physical
ailments are. 	Thus, like in Marr and Seamster, the most generous reading of the
disclosure lacks an informative summary that tells the reader anything about the nature
and basis of causation, prognosis, or other medical opinions. 	Second and relatedly,
because the letter mostly quotes the underlying medical records rather than summarize
the opinions being offered, its framing leaves uncertain what, if any, causation (or other)
opinion is offered and how only the notes from a single visit can support such an opinion.
This is especially problematic when Schrof has about eight years of medical history with
this provider and, as Clean Earth notes, the records include other visits that discuss
stomach-related or other physical ailments. ECF 173 at 2-3. In this way, the “summary”
is no more robust or helpful than disclosing these two documents.
The sufficiency of a given Rule 26(a)(2)(C) disclosure will likely turn on the
circumstances of each case, including the wording of the disclosure, other information
provided in discovery that may be referenced in or otherwise relevant to the facts and
opinions summarized, and the objections to the disclosure. Cf. Beard v. Town of Topsail
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Beach, No. 7:19-cv-97-FL, 2020 WL 1539924, at *6 (E.D.N.C. Mar. 31, 2020) (denying
motion to strike disclosure and order supplement where plaintiff provided “a summary of
[the physicians’ and therapist’s] qualifications, followed by a paragraph outlining the facts
and opinions to which each ‘is expected to testify’”; “Without benefit of specific discussion
by defendants as to what details of the experts’ fact and opinions they seek, the court will
not direct plaintiff to supplement her Rule 26(a)(2)(C) disclosures.”). On the specific facts
here—including the timing of the disclosure and inability to explore it through other
discovery after Schrof designated Dr. McClure as a potential trial witness—the Court
believes that Rule 26(a)(2)(C) calls for more than the high-level summary that appears in
Schrof’s February 12, 2026 letter. Otherwise, the disclosure of the underlying documents
would be enough, contrary to Vanderberg and the courts that follow its reasoning.
b. 	The appropriate cure for the disclosure violations is limitation to facts but
not causation, rather than exclusion.
The next issue, then, is the appropriate sanction for an improper disclosure. 	In
many cases, such violations may be cured well in advance of trial, obviating any
justification for excluding treating physician or other expert testimony. 	As explained
below, this is not such a case.
Where a party fails to disclose as required by Rule 26(a), Federal Rule 37(c)(1)
prohibits a party from using the improperly or otherwise undisclosed evidence or witness
at trial unless the disclosure violation is deemed substantially justified or harmless. See
Wilkins v. Montgomery, 751 F.3d 214, 221 (4th Cir. 2014). This is an “automatic sanction”
against the party that fails to disclose evidence it intends to offer. 	S. States Rack &
Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595 n.2 (4th Cir. 2003). 	As the
Fourth Circuit explains, “[a] party that fails to provide these disclosures unfairly inhibits
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its 	opponent’s 	ability 	to 	properly 	prepare, 	unnecessarily 	prolongs 	litigation, 	and
undermines the district court’s management of the case.” 	Wilkins, 751 F.3d at 221
(citation omitted).
To determine whether a failure to disclose is justified or harmless, courts in the
Fourth Circuit consider the five Southern States factors. See, e.g., Braxton v. Eldorado
Lounge, Inc., No. ELH-15-3661, 2017 WL 4865476, at * 4 (D. Md. Oct. 27, 2017) (citing
S. States, 318 F.3d at 597). 	They are “(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent
to which allowing the evidence would disrupt the trial; (4) the importance of the evidence;
and (5) the nondisclosing party’s explanation for its failure to disclose the evidence.” S.
States, 318 F.3d at 597. The non-disclosing party bears the burden to show substantial
justification or harmlessness. Wilkins, 751 F.3d at 222 (citation omitted). The trial court
may, but need not, consider all five factors. Id.
The Court begins, briefly, with the final factor because it has been addressed at
length already and colors the analysis of other factors. 	The lack of justification weighs
strongly against permitting Dr. McClure’s testimony and influences the degree of
prejudice discussed below. Schrof provides no justifiable reason for the failure to properly
disclose Dr. McClure. Mere inadvertence is not a compelling reason for failure to properly
disclose treating physicians. Roop, 660 F. Supp. 3d at 499; Springs on behalf of C.S. v.
Waffle House, Inc., No. 3:18-cv-03516-JMC, 2021 WL 119303, at *3 (D.S.C. Jan. 13,
2021); Wiseman v. Wal-Mart Stores, Inc., No. 1:16-cv-4030-SAG, 2017 WL 4162238, at
*5 (D. Md. Sept. 19, 2017). Moreover, the plaintiff has, for the past two weeks, avoided
the requirement and “focuse[d] on the curability and harmlessness of” her disclosure
violations. Ihuoma v. Coppin State Univ., No. 1:20-03759-JMC, 2022 WL 1017090, at *4
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(D. Md. Apr. 5, 2022). That, too, fails to solve the problems generated by her litigation
decisions. Unjustified disclosure violations—especially those after discovery and close to
trial—cause substantial prejudice to an opposing party. See id.; Springs, 2021 WL 119303,
at *3; Stogsdill, 2017 WL 3142497, at *15; Ingram v. ABC Supply Co., No. 3:08-1748-JFA,
2010 WL 233859, at *2–3 (D.S.C. Jan. 14, 2010).
The first issue—surprise—is mixed yet still favors Clean Earth. On one hand, there
is little surprise about the information in Dr. McClure’s records and their potential
relevance to Schrof’s claims. 	She attached the medical note to her employer and the
doctor’s internal progress note to her summary judgment briefing and based arguments
on their contents. But, as detailed above, there was surprise that Dr. McClure would be
called to testify at trial about any opinions he formed in the course of treating Schrof,
including the extent and causation of any “mental and physical ailments” referenced but
not articulated in his progress note, his medical note supporting Schrof’s time off request,
or plaintiff’s counsel’s February 12, 2026 summary.
The Court finds limited ability to cure this surprise. 	Often, courts provide an
opportunity to cure by extending or re-opening discovery to address a late or otherwise
improper expert disclosure. See, e.g., Wiseman, 2017 WL 4162238, at *4–5 (noting that
an untimely disclosure was rendered harmless by extending discovery to permit the
deposition of a treating physician and designation of rebuttal witnesses but excluding
other witnesses too late to explore through additional discovery); Machie, 2012 WL
2092814, at *5 (finding disclosure harmless, even though not justified, where, among
other things, trial was not scheduled and the parties could have additional time to make
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proper disclosures and hold depositions of the treating physicians). 4 But this issue came
before the Court less than two months before trial and well after the time for making Rule
26(a)(2) disclosures or the close of fact discovery. 	Cf. CBX Techs., Inc. v. GCC Techs.,
LLC, No. JKB-10-2112, 2012 WL 3038639, at *4 (D. Md. July 24, 2012) (“A court’s
scheduling order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly
disregarded by counsel without peril.’” (quoting Potomac Elec. Power Co. v. Elec. Motor
Supply, Inc., 190 F.R.D. 372, 376 (D. Md. 1999)). Schrof’s arguments suggest a desire to
have Dr. McClure testify about alleged work-related stress causing “mental and physical
ailments.” 	ECF 172 at 2. 	It is unclear what such ailments are—perhaps they include
certain conditions identified in the pretrial order but not in the February 12, 2026
disclosure letter. To the extent these “mental and physical ailments” include or are related
to any conditions or conversations explored during other visits, Clean Earth has lost the
ability to fully explore, within the mechanisms of discovery, such connections and their
impact on any opinions Dr. McClure may offer. Indeed, that is the point of depositions
and why decisions such as Wiseman and Machie addressed improper disclosures through
extended discovery. While, at first blush, Schrof’s intent to limit the testimony to a single
day may seem helpful in narrowing the scope and potential prejudice, it falls far short of
doing so given the nature of Dr. McClure’s connection with Schrof’s full medical history
before and after the time central to the retaliation claim and any assertions or arguments
she may make about the extent of her alleged damages. 	Nonetheless, many of the
questions or inquiries posed by Clean Earth’s February 12, 2026 position statement
4 Schrof has never sought a continuance of trial to facilitate depositions or other
measures that might cure the prejudice attendant to the improper disclosure.
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appear to be factual issues that could be explored on cross-examination. 	Thus, Clean
Earth retains the ability to cure as to facts but not necessarily as to prognosis or causation.
For reasons already noted in this section, the Court finds that trial would be
disrupted by testimony about prognosis and causation about which Clean Earth lacked
knowledge before the parties’ arguments on this issue. Cf. Machie, 2012 WL 2092814, at
*5 (refusing to exclude under Southern States because, among other things, “[t]his
situation is not one in which a party is seeking to admit new expert opinions on the eve of
trial”). The potential for prejudice and disruption should be evident from parties’ briefing
and supplements within the six weeks before trial as well as the Court’s need to address
this in two pretrial conferences and order additional supplements. Like Judge Coulson,
the Court concludes that “Plaintiff’s piecemeal releases of information regarding her
proposed expert have . . . unfairly burdened this Court and the [Defendant’s] counsel with
the time and expense of ensuring her compliance with her discovery and disclosure
obligations.” 	Ihuoma, 2022 WL 1017090, at *4 (granting in part motion to strike and
limiting the treating physician’s testimony).5 	If Schrof were to elicit causation or
prognosis testimony within the scope of Rule 702, e.g., Roop, 660 F. Supp. 3d at 499-500,
Clean Earth would be entitled to explore the basis for such expert testimony. The Court
is not inclined to use trial to do what a deposition could have accomplished after proper
notice.
5 But even in Ihuoma, the court permitted the deposition of the treating physician.
2022 WL 1017090, at *4. Based on a review of that docket, the parties raised the issue
before the defendant moved for summary judgment and no trial date was set. Thus, they
retained some ability to cure the surprise long before trial. Judge Coulson’s observation
is even more powerful here, where the schedule lacks such a cushion.
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In considering these issues of justification, surprise, and ability to cure, the Court
rejects Schrof’s contention that because she identified Dr. McClure in an interrogatory
about medical treatment, Clean Earth could have deposed him but chose not to. See Pl.’s
MIL Opp’n at 28 (citing Hall v. Sykes, 164 F.R.D. 46, 48 (E.D. Va. 1995)). The Court again
finds Vanderberg’s analysis persuasive:
We also reject any suggestion that Vanderberg’s failure to adhere to Rule
26(a)(2) was harmless because Petco should have figured out that he would
rely on his treating physicians to provide expert testimony on causation. The
expert witness disclosure requirements would be rendered meaningless if a
party could ignore them and then claim that the nondisclosure was
harmless because the other party should have read between the lines.
Moreover, parties such as Petco are entitled to presume that opposing
parties will comply with the Rules of Civil Procedure and that experts will
be properly disclosed in accordance with the rules. “Litigants should not
have to guess who will offer expert testimony; they need knowledge to
conduct their own discovery and proffer responsive experts. That’s why
failure to comply with Rule 26(a)(2)(A) leads to the exclusion of expert
testimony by a witness not identified as an expert.”
906 F.3d at 704 (quoting Cripe v. Henkel Corp., 858 F.3d 1110, 1112 (7th Cir. 2017)); see
also Ingram, 2010 WL 233859, at *2 (“Had plaintiff timely disclosed [the treating
physicians’] 	identity, 	defendants 	would 	have 	certainly 	deposed 	them. 	Ultimately,
however, defendants had no reason to believe that these witnesses would be called as
experts.”). Schrof’s invocation of Hall does not move the needle. The cited page in Hall,
which pre-dates Rule 26(a)(2)(C), discusses the now-unremarkable proposition that a
treating physician falls outside of Rule 26(a)(2)(B) and a party may explore the
physician’s 	opinions 	through 	interrogatories 	or 	depositions 	even 	without 	a 	Rule
26(a)(2)(B) report. See 164 F.R.D. at 48. The Court does not read Hall as justification to
run counter to the reasoning in Vanderberg and Ingram, which the Court reads as
consistent with the Federal Rules’ purpose: “to secure the just, speedy, and inexpensive
determination of every action and proceeding.” Fed. R. Civ. P. 1. The Court will not fault
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Clean Earth for choosing not to depose an individual who the Federal and Local Rules
required Schrof to identify. 6
Turning to the fourth Southern States factor, the importance of the evidence is also
a mixed bag yet slightly favorable to Schrof. 	In general, testimony on the extent and
reasonableness of injuries is important to establishing their severity and, as a result,
causation or damages. See, e.g., Springs, 2021 WL 119303, at *3. But because she does
not propose an expert to testify to “unusually severe” emotional distress, Schrof’s
damages theory may not require expert testimony. See Ricks v. Abbott Labs., 198 F.R.D.
647, 649 (D. Md. 2001) (highlighting the difference between garden variety emotional
distresses (such as anxiety, anger, or grief), for which a factfinder does not require expert
testimony, and “unusually severe” or clinical distress diagnosed and treated by a medical
professional); Joint Pre-trial Order at ¶ 80 (noting Plaintiff’s intent to prove Clean Earth’s
actions caused “emotional distress, anxiety, and physiological symptoms that required
medical treatment and medication”). 7 Nonetheless, at least some facts related to her visit
to and treatment from Dr. McClure appear important to, if nothing else, her arguments
about the cumulative effects of Clean Earth’s actions and the alleged constructive
discharge. Therefore, the Court finds this factor favors limiting, rather than excluding,
6 The Court is mindful that the scheduling order set the Rule 26(a)(2) disclosures
after resolution of summary judgment and, as a result, after general fact discovery. But
that did not preclude Schrof from disclosing Dr. McClure as a testifying witness earlier or
otherwise within the time required by the Federal Rules. 	Further, during the April 8,
2025 scheduling call, plaintiff’s counsel did not indicate the need for any expert
disclosures or discovery before setting a trial date.
7 Of course, if the opposite is true and she intends to present to the jury “unusually
severe” distress often explored through expert testimony and independent medical
examinations, see Ricks, 198 F.R.D. at 649, that makes the improper disclosure even more
egregious.
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Dr. McClure’s testimony. 	See Ihuoma, 2022 WL 1017090, at *4 (permitting limited
testimony from a treating physician, despite there being “no excuse” for the disclosure
violation, because the testimony may be necessary to introduce treatment records).
Having considered the Southern States factors and the implications for trial, the
Court concludes that substantial limitation, not exclusion, is the appropriate sanction. If
called, Dr. McClure may testify as a fact witness about his individual factual treatment of
the plaintiff but may not offer any expert testimony. See Ingram, 2010 WL 233859, at
*3; Seamster, 2022 WL 2165545, at *17-18 (excluding testimony on causation but denying
motion to strike as fact witness). The Court is mindful that these limitations
may seem harsh. But the burdens on parties who are not adequately
appraised of an opposing party’s experts’ identity and expected testimony
are also real and costly. In any event, the balance between adequately
incentivizing 	compliance 	with 	parties’ 	disclosure 	obligations 	and 	not
unfairly punishing “insignificant, technical violations” has already been
struck by the drafters of Rule 37(a)(1).
Vanderberg, 906 F.3d at 706. 	Given the nature of the disclosure violations and their
potential impact on trial, the Court finds it appropriate to preclude even the usual
prognosis and causation testimony that treating physicians often offer. Dr. McClure may
authenticate and discuss the facts of his encounter with Schrof reflected in his treatment
notes and that led to his drafting the letter that she sent to her employer. Dr. McClure
may not provide any expert opinions related to causation, prognosis, or future medical
needs. Clean Earth may, if it chooses, explore other facts that it believes may be relevant
to credibility or the ultimate issues in the case. 8
8 While it is unnecessary to address the Motion to Strike’s merits because the
motion in limine is granted as to Dr. McClure’s testimony, the Court notes that Clean
Earth’s arguments for exclusion as a fact witness are unpersuasive. 	He was disclosed
timely using the fact witness deadline, see Fed. R. Civ. P. 26(a)(3), and, even if he was not,
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III. 	CONCLUSION
For the reasons stated above, Clean Earth’s Motion in Limine No. 12 to limit the
scope of testimony (ECF 141) is GRANTED with respect to Dr. McClure’s testimony and
Clean Earth’s Motion to Strike and Exclude (ECF 149) is DENIED as moot.
Date: February 19, 2026 	/s/
Charles D. Austin
United States Magistrate Judge
the Southern States harmlessness analysis would be more forgiving regarding his factual
knowledge reflected in his medical records produced during discovery.
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