## Facts

- Megan Rondini alleged that Terry J. Bunn, Jr. falsely imprisoned and sexually assaulted her on July 1, 2015.
- Megan later experienced psychological distress, withdrew from the University of Alabama, and died by suicide on February 26, 2016.
- Megan’s parents sued Bunn in a diversity wrongful-death action alleging intentional torts and asserting causation between the alleged assault and Megan’s death.
- A scheduling order required disclosure of all retained experts by November 9, 2018, with discovery to close April 22, 2019.
- Plaintiffs timely disclosed one retained expert and report, but did not disclose psychiatrist Dr. Ziba Rezaee or treating therapist Dr. Susan Arnold as experts by the deadline.
- In August 2019, while opposing summary judgment, plaintiffs submitted materials reflecting opinions from Rezaee and Arnold.
- Bunn moved to strike Arnold and Rezaee based on untimely expert disclosure under Federal Rules of Civil Procedure 26(a)(2) and 37(c)(1).

## Issues

1. Whether plaintiffs’ failure to timely disclose Arnold and Rezaee as expert witnesses required exclusion under Rule 37(c)(1).
2. Whether Arnold qualified as a treating-provider witness whose treatment-based opinions could be presented under Rule 26(a)(2)(C) without a Rule 26(a)(2)(B) report.
3. Whether Rezaee’s proposed testimony constituted retained-expert causation opinions subject to Rule 26(a)(2)(B), and, if so, what portions should be excluded as late-disclosed and prejudicial.

## Decision

- The court denied the motion to strike as to Dr. Arnold, permitting her to testify to opinions formed during and based on treatment.
- The court granted in part and denied in part the motion to strike as to Dr. Rezaee, excluding portions of his late-disclosed “but-for”/proximate-causation opinions while allowing limited testimony within a narrower scope.
- The court applied Rule 37(c)(1) to tailor a remedy that reduced unfair surprise and prejudice without imposing blanket exclusion where narrower limits could address the disclosure failure.

## Legal Principles

- Rule 26(a)(2)(A) requires disclosure of any witness who will present expert evidence under Federal Rules of Evidence 702–705.
- Retained or specially employed experts must provide a Rule 26(a)(2)(B) report containing a complete statement of opinions and bases; non-retained experts must provide Rule 26(a)(2)(C) summaries of opinions and supporting facts.
- Treating mental-health providers may offer expert opinions formed during treatment (including diagnosis and treatment-based causation) as non-retained experts, but opinions developed for litigation or based on post hoc review function as retained-expert testimony.
- Under Rule 37(c)(1), untimely disclosure generally results in exclusion unless the failure is substantially justified or harmless; courts consider surprise, ability to cure, disruption, and bad faith, and may impose partial exclusion to address prejudice.

## Conclusion

The court allowed plaintiffs’ treating therapist to testify to treatment-based opinions under Rule 26(a)(2)(C), but limited the retained psychiatrist’s testimony by excluding late-disclosed, litigation-driven causation opinions under Rule 37(c)(1) to prevent unfair surprise and prejudice.


Rondini v. Bunn, 434 F. Supp. 3d 1266 (N.D. Ala. 2020)