Failure to Designate Expert Pharmacist Under Rule 26(a)(2)(B) Instead of 26(a)(2)(C) Renders Testimony Inadmissible

    Court: United States District Court for the Eastern District of Wisconsin
    Jurisdiction: Federal
    Case Name: Scholz v. United States
    Citation: 2019 U.S. Dist. LEXIS 90245


    The plaintiff, who served in the United States Army Reserves from 2001-2008, filed this suit against the defendant alleging that her elective breast reduction surgery was negligently performed without her informed consent. The plaintiff further alleged that she was forced to undergo additional surgeries secondary to complications. She further alleged malpractice in her mental health care at the hands of the Department of Veteran Affairs.

    The plaintiff retained a pharmacist expert witness to testify regarding her knowledge and opinion about the substandard medical care provided to the plaintiff by the Veteran Affairs medical center. The defendant challenged the testimony offered by the pharmacist expert witness and filed a motion seeking partial summary judgment to prohibit the plaintiff’s pharmacist expert from testifying.

    The Pharmacist Expert Witness

    The plaintiff designated the pharmacist expert as an expert witness under Rule 26(a)(2)(C) of the USCS Federal Rules of Civil Procedure. Under this designation, the expert did not need to produce an expert report outlining her opinion. The defendant argued that the expert witness should have been designated under Rule 26(a)(2)(B), which would have required her to submit an expert report. The defendant contended that because the expert had failed to do so, her testimony was inadmissible.

    The plaintiff submitted that the pharmacist expert witness was not retained to review her medical records. The defendant contested, however, that the pharmacist expert testified about the cognitive effects of the medication administered to the plaintiff and whether the medication had impaired her ability to consent to treatment. The expert pharmacist also testified as to her experience working with the medical center where the plaintiff was treated.

    The defendant argued that the expert pharmacist testified about the plaintiff’s pharmacy records, rendering her testimony inadmissible. The plaintiff did not argue that she had correctly designated the pharmacist expert under Rule 26(a)(2)(C). The plaintiff argued that the expert had already testified extensively regarding the medical center pharmacy’s negligence. Furthermore, the plaintiff contended that the expert had examined and analyzed the pharmacy records and testified that they were incomplete.


    The court noted that since the plaintiff had not argued that there had not been any error in designating the pharmacist expert witness under Rule 26(a)(2)(C), it left the court with no choice but to assume that the plaintiff had conceded that the pharmacist expert was not designated correctly as an expert under Rule 26(a)(2)(C). The court was of the opinion that the expert was supposed to submit a report in order to testify as an expert witness under Rule 26(a)(2)(B).

    The court further noted that the plaintiff’s arguments did not show how the pharmacist expert could have been allowed to testify as an expert under Rule 26(a)(2)(B) despite not submitting an expert report.


    The court held that the pharmacist expert failed to provide an expert report as mandated by Rule 26(a)(2)(B) and was thus prohibited from testifying as an expert witness. However, her testimony was allowed to the extent that she offered relevant fact testimony.