Plaintiff in this case has sued defendant Central Kansas Medical Center (CKMC) pursuant to the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd. Plaintiff also asserts a claim of medical malpractice against both defendants CKMC and William Slater, M.D. The case has proceeded through discovery, and deadlines for disclosure of expert witnesses by all parties have passed. This matter is before the court on defendants CKMC and Dr. Slater's motions to strike the affidavit and expert opinions of Merle Fieser, M.D. (Docs. 73 & 74); plaintiff's motion for extension of time to respond to CKMC's motion to strike affidavit and expert opinions of Merle Fisher, M.D., and to reopen discovery and continue trial (Doc. 80); plaintiff's motion for extension of time to respond to Dr. Slater's motion to strike affidavit and expert opinions of Merle Fisher, M.D., and to reopen discovery and continue trial (Doc. 83); and defendant CKMC's request for oral argument (Doc. 86). The motions at issue will be disposed of pursuant to this order and, therefore, the court denies CKMC's request for oral argument.

I. Factual Background

On August 24, 1998, plaintiff was admitted to CKMC for treatment of injuries she sustained during a horseback riding incident earlier that evening. Plaintiff was initially treated at the hospital by her family physician, Merle Fieser, M.D. Apparently, Dr. Fieser contacted defendant Slater, a general surgeon, about seeing plaintiff. For reasons immaterial to the motions at issue, Dr. Slater first agreed, then later declined, to see plaintiff. Plaintiff then was transported to Hutchinson Hospital where she underwent two surgeries.

The scheduling order in this case, as modified by the court, established April 20, 2001 as the deadline for plaintiff's expert disclosures pursuant to Federal Rule of Civil Procedure 26(a)(2). The scheduling order further provided discovery to be completed by June 15, 2001. On April 20, 2001, plaintiff submitted her expert witness disclosures, in which she designated William A. Lybarger, Ph. D. as her only expert.

On May 25, 2001, plaintiff submitted her final witness and exhibit list, in which she designated Dr. Fieser as a witness. Dr. Fieser, one of plaintiff's treating physicians, previously had been deposed on March 7, 2001, and although not a party to the litigation, Dr. Fieser was represented at the deposition by her attorney, Brian Wright. At that deposition, Dr. Fieser testified that she believed plaintiff had achieved a stable condition and could be transferred from CKMC to another hospital to undergo surgery. Dr Fieser further testified that the option of transfer was equally as good as having surgery at CKMC and that she had no concerns that there would be a problem in transferring plaintiff.

Defendants filed motions for summary judgment. Attached to plaintiff's responses was an affidavit of Dr. Fieser dated July 24, 2001. The affidavit consisted of twenty-four enumerated paragraphs, including the following:

20. It was my professional opinion that Mrs. Parker needed immediate emergency medical attention. The Emergency Room was only three floors down with an accessible elevator and I would have happily accommodate (sic) whatever Dr. Slater needed to provide care to Mrs. Parker.

22. Mrs. Parker had no other choice than to transfer to Hutchinson Hospital because she was not receiving any care from Central Kansas Medical Center and Dr. Slater left the hospital with out providing any care or examination to Mrs. Parker.

23. Dr. Slater's refusal to see or even examine Mrs. Parker fell below the standard of care for our community.

24. It is also my professional belief that the delay in treatment lead to Mrs. Parker's medical complications immediately following her accident and the complications that she continues to have on an ongoing basis.

After receipt of Dr. Fieser's affidavit, defendant CKMC asserts that its counsel contacted Dr. Fieser's counsel, Mr. Wright. Defendant CKMC contends that Mr. Wright stated that he was not aware that Dr. Fieser had executed an affidavit at plaintiff's request. Through Mr. Wright, Dr. Fieser subsequently provided another affidavit. In her second affidavit, Dr. Fieser stated that she did not prepare the first affidavit and that it was not her intent in signing the first affidavit to contradict or change any of her deposition testimony. Dr. Fieser also stated that, to the extent the first affidavit indicates that plaintiff did not receive medical care at CKMC, the affidavit is incorrect. Dr. Fieser stated that both she and the nursing staff at CKMC provided care and treatment to plaintiff. Significantly, Dr. Fieser also disavowed any opinions regarding whether or not plaintiff's transfer caused or contributed to any of plaintiff's injuries or complications. Dr. Fieser stated that she has not reviewed any records related to the transfer or the records of the care plaintiff received at Hutchinson Hospital and could not, therefore, form an opinion regarding the cause of her current condition or complications which occurred following the transfer.

Plaintiff contends that defendant CKMC's counsel's contact with Mr. Wright may support a claim of witness intimidation and spoilation of evidence by defendant CKMC. Plaintiff claims that counsel for CKMC informed Mr. Wright that defendant CKMC had been involved in previous litigation against Dr. Fieser. For support, plaintiff cites to a letter written by Mr. Wright to plaintiff's counsel. Plaintiff believes that this threat of prior litigation, along with the fact that defendant CKMC could revoke Dr. Fieser's hospital privileges, was used to coerce Dr. Fieser's second affidavit.

II. Discussion

Rule 26(a)(2) requires each party to disclose the identity of its expert witnesses and produce an expert report for each expert witness. In this case, the time for expert disclosures was set by the court. Plaintiff did not disclose Dr. Fieser as an expert witness. Therefore, as plaintiff's treating physician, Dr. Fieser may not provide expert testimony but is, rather, limited to providing testimony in accordance with Federal Rule of Evidence 701. This means Dr. Fieser may provide testimony regarding her observations based solely on her personal knowledge, but may not provide testimony beyond the scope of her treatment of plaintiff. Davoll v. Webb, 194 F.3d 1116, 1138-39 (10^th Cir. 1999). Any conclusions drawn by Dr. Fieser must fall within the province of a lay witness who has personal knowledge of the situation. United States v. Anthony, 944 F.2d 780, 782-83 (10^th Cir. 1991).

Paragraphs 22, 23, and 24 of Dr. Fieser's first affidavit espouse opinions which are clearly expert opinions. Dr. Fieser's statements offer opinion testimony beyond that which is incidental to Dr. Fieser's care and treatment of plaintiff and is, therefore, subject to the disclosure requirements of Rule 26(a)(2)(B). Having failed to disclose Dr. Fieser as an expert witness, the court hereby strikes paragraphs 22, 23, and 24 of Dr. Fieser's July 24, 2001 affidavit.

Plaintiff requests that, in the event the court strikes Dr. Fieser's affidavit, plaintiff be given an additional sixty days in which to obtain an expert opinion. Under Rule 16(b), a deadline established in a scheduling order, such as the deadline to designate experts and make Rule 26(a)(2) disclosures at issue here, may be extended only "upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge." To show "good cause," the party seeking to extend the deadline must establish that the scheduling order's deadline could not have been met with diligence. Denmon v. Runyon, 151 F.R.D. 404, 407 (D. Kan. 1993).

In this case, the plaintiff sought no such extension, and none was granted. Moreover, plaintiff offers no reason, let alone a showing of good cause, why she was unable to procure an expert within the disclosure deadline to testify as to causation and why she should be allowed an additional sixty days in which to obtain an expert. Plaintiff's request for an additional sixty days to obtain an expert is denied.

Plaintiff also requests that discovery be reopened so that she be allowed to depose Mr. Wright, Dr. Fieser, and CKMC's counsel. However, plaintiff has failed to convince this court that reopening discovery for this purpose would result in anything but a fishing expedition of the attorneys of record in this case. Plaintiff's allegation that CKMC's attorney coerced a new affidavit is completely unfounded and unsupported by the record. In fact, the letter to which plaintiff cites in support of this allegation mentions nothing about a conversation between CKMC's attorney and Mr. Wright regarding prior litigation against Dr. Fieser. Plaintiff has simply failed to make any showing to support a claim of witness intimidation and spoilation of evidence. To delay the proceedings of this case in order to reopen discovery for this purpose is not warranted and would, therefore, be inappropriate.

IT IS THEREFORE ORDERED that defendants CKMC and Dr. Slater's motions to strike the affidavit and expert opinions of Merle Fieser, M.D. (Docs. 73 & 74) are granted to the extent that paragraphs 22, 23, and 24 of Dr. Fieser's July 24, 2001 affidavit are hereby stricken.

IT IS FURTHER ORDERED that plaintiff's motions for extension of time to respond to CKMC's and Dr. Slater's motions to strike affidavit and expert opinions of Merle Fisher, M.D., and to reopen discovery and continue trial ⁽¹⁾ (Doc. 80 & 83) are denied.

IT IS FURTHER ORDERED that defendant CKMC's request for oral argument (Doc. 86) is denied.

Dated this day of December 2001, at Kansas City, Kansas.

CARLOS MURGUIA

United States District Judge<

1. For reasons unrelated to these motions, the court continued the trial in this matter to April 2, 2002.