Aubuchon v. Tate Trucking, LLC et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALLISON AUBUCHON, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 4:24CV189 HEA
)
TATE TRUCKING, LLC, and 	)
WENDIMU MITANO 	)
)
Defendants. 	)
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Strike plaintiff’s
Amended Expert Disclosures, [Doc. No. 63]. Plaintiff has filed a response to the
Motion, to which Defendants have filed a reply. For the reasons set forth below, the
motion is denied.
Facts and Background1
Plaintiff’s Petition alleges the following:
On February 24, 2022, Defendant Mitano, an employee of Defendant Tate
Trucking, while performing his duties on behalf of his employer, was driving
northbound on US Highway 61. Defendant Mitano caused his 2014 Freightliner
Corp Cascadia 125 to come into contact with the rear of another motorist on US
1 The recitation of facts is set forth for the sole purpose of this Opinion. It in no way relieves the
parties of the necessary proof of the facts in later proceedings.
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Highway 61. The force of this collision created a chain reaction involving multiple
motor vehicles, which ultimately caused a third party to collide with the rear of
Plaintiff’s 2016 Cadillac ATS.
The Petition sets out a claim for Negligence against Defendant Mitano,
Count I; Negligence Per Se under RSMo § 304.0171.1 against Defendant Mitano,
Count II; Negligence against Defendant Tate Trucking, Count III; Negligence Per
Se under RSMo § 304.0171.1, against Defendant Tate Trucking, Count IV;
Negligent Hiring against Tate Trucking, Count V; Negligent Retention against Tate
Trucking, Count VI; and Negligent Supervision against Tate Trucking, Count VII.
Defendants move to strike Plaintiff’s experts pursuant to Rule 37(c)(1) for
untimely disclosure and for failing to provide expert reports in accordance with 26
Rule 26(a)(2).
Discussion
Defendants argue Plaintiff’s experts should be stricken because Plaintiff did
not disclose them by the date delineated in the Case Management Order. The Order
provided that Plaintiff was required to disclose her experts on or before July 15,
2025. Plaintiff provided her experts on July 14, 2025. Thereafter, Defendants filed
a motion to strike these disclosures because they failed to comply with the
requirements of Rule 26(a). In response to the Motion, Plaintiff served her
Amended Expert Disclosures. Defendants argue the Amended Disclosures are
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untimely and do not contain the required reports. Plaintiff contends she is not
required to produce reports because the experts are not retained experts, rather,
they are her treating physicians.
Subsection (a)(2) of Rule 26 governs the disclosure of witnesses that may be
used to present expert testimony at trial, requiring that a party “disclose to the other
parties the identity of any witness it may use at trial to present” expert testimony.
Fed. R. Civ. P. 26(a)(2)(A). When the expert witness is “retained or specially
employed to provide expert testimony in the case,” a party must produce a detailed
expert report, “[u]nless otherwise stipulated or ordered by the court.” Fed. R. Civ.
P. 26(a)(2)(B). For experts that are not specifically retained for litigation, such as
treating physicians, parties must still disclose their identity and “the subject matter
on which the witness is expected to present” expert opinion testimony and “a
summary of the facts and opinions to which the witness is expected to testify.” Fed.
R. Civ. P. 26(a)(2)(C).
Federal Rule of Civil Procedure 37(c) gives Rule 26(a) teeth. See 8B Charles
A. Wright, Arthur R. Miller et al., Federal Practice & Procedure § 2289.1 (3d ed.).
Under Rule 37(c), failing to properly identify witnesses as required by Rule
26(a)(1) precludes a party from using the witness “to supply evidence on a motion,
at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c). Rule 37(c)’s sanction is “self-executing” and does
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not require a motion. Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d
698, 703 (8th Cir. 2018) (quoting Rule 37(c)(1)’s advisory committee note to the
1993 amendment).
In deciding whether an incomplete disclosure is justified or harmless, courts
consider several factors, including “(1) the prejudice or surprise to the party against
whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3)
the extent to which the introduction of such testimony would disrupt the trial; and
(4) the moving party's bad faith or willfulness.” Rodrick v. Wal-Mart Stores East.
L.P., 666 F.3d 1093, 1097 (8th Cir. 2012).
Here, Plaintiff failed to comply with the disclosure requirements under Rule
26(a)(2)(C). Although Plaintiff identified her treating physicians in her Rule 26
disclosures, she did not properly disclose the subjects she planned to have them
testify and whether any causation opinions arose during the course of the
treatment. See Fed. R. Civ. P. 26(a)(2)(C). (For experts that are not specifically
retained for litigation, such as treating physicians, parties must still disclose their
identity and “the subject matter on which the witness is expected to present” expert
opinion testimony and “a summary of the facts and opinions to which the witness
is expected to testify.”
Although a failure to describe a witness's subject-matter knowledge does not
automatically require exclusion of the testimony, allowing Plaintiff’s disclosures to
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go forward without allowing Defendants the opportunity to depose them would
result in prejudice to Defendants. See Fed. R. Civ. P. 37(c).
In the interests of justice, the Court finds that any prejudice to Defendants
will be alleviated by allowing additional discovery and a continuance of the trial
setting. The parties, therefore, must submit new dates for depositions, disclosure of
Defendants’ experts, and trial.
Conclusion
IT IS HEREBY ORDERED that Defendants' Motion to Strike, [Doc. No.
62], is DENIED.
IT IS FURTHER ORDERED that Plaintiff shall supplement her expert
disclosures in accordance with Rule 26(a)(2)(C) within 15 days from the date of
this Order.
IT IS FURTHER ORDERED that the parties shall jointly submit a
proposed Amended Case Management Order detailing dates for depositions of
Plaintiff’s treating physicians, Defendants’ disclosure of expert witnesses and
depositions, dispositive motion deadlines, and proposed trial dates.
Dated this 9thday of December 2025.
________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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