Neurology Expert’s Testimony on the Future Anticipated Effects of SCA2 Admitted
Posted on June 18, 2025 by Expert Witness Profiler
Michael Braun filed a lawsuit against his former employer, Norton Healthcare, Inc., claiming that he was fired from his job as a Staff Pharmacist due to disability discrimination and retaliation. He alleged that this conduct violated the Americans with Disabilities Act (ADA).
Subsequently, on November 29, 2024, Braun disclosed Dr. Mark Bazant as his treating physician and indicated that Bazant might be called as a witness.
According to the disclosure, Bazant was retained to provide testimony regarding “the future anticipated effects of SCA2 on Plaintiff,” the “future anticipated treatment of Plaintiff’s SCA2,” and the “reasonable accommodations he recommended,” all “based on his medical training and his ongoing treatment of Plaintiff.”
Nevertheless, Plaintiff denied that Bazant qualifies as an expert witness, asserting instead that Bazant is a treating physician who may testify only as a lay witness. In response, Defendant filed a motion to strike Bazant as an expert witness or, alternatively, to limit his testimony “only to what he directly observed while treating [Plaintiff].”
Neurology Expert Witness
Dr. Mark Paul Bazant, M.D., is a board-certified neurologist with Norton Neurology Services. Bazant earned his medical degree from the University of Nebraska College of Medicine in Omaha. He completed his residency in neurology and fellowship in clinical neurophysiology – electromyography (EMG) at the Indiana University School of Medicine in Indianapolis. His areas of special medical interest are EMG and neuromuscular neurology. Bazant is a member of the American Academy of Neurology and the American Association of Neuromuscular & Electrodiagnostic Medicine.
Discussion by the Court
Despite Plaintiff’s assertion that Bazant is not an expert witness, Plaintiff intended to call him to provide expert testimony
The Plaintiff argued that the Court should deny the Defendant’s motion as moot, stating that he had not identified Bazant as an expert witness. However, the Court found that whether or not Bazant was formally designated as an expert was irrelevant to the disclosure requirements under Rule 26(a)(2). When a witness’ testimony will be based on scientific, technical, or other specialized knowledge, then a party cannot evade the requirements of Rule 26(a)(2) simply by designating that witness as a lay witness.
The Court held that Bazant’s proposed testimony qualified as expert testimony under Rule 26(a)(2) because it relied on medical judgments based on his specialized knowledge and training. While Bazant’s testimony about his treatment of the Plaintiff and his efforts to assist Plaintiff in obtaining a reasonable accommodation could be considered lay testimony under Rule 701, the rest of his testimony went beyond that.
Specifically, Bazant was expected to testify about the future anticipated effects of SCA2 on the Plaintiff, the future course of treatment, and the reasonable accommodations he recommended—all based on his medical training and his ongoing treatment of the Plaintiff. The Court concluded that this portion of his testimony clearly involved expert opinions requiring proper disclosure under Rule 26(a)(2).
Plaintiff’s disclosure of Bazant did not comply with Rule 26(a)(2)(C)
In this case, the Court found that the Plaintiff’s disclosure of Bazant was deficient under Rule 26(a)(2)(C). The disclosure failed to include a summary of the facts and opinions that Bazant was expected to testify about. Instead, it merely listed the general topics of his anticipated testimony without providing his actual opinions or conclusions relevant to the case. Furthermore, the disclosure did not explain the factual basis on which Bazant formed his opinions. As a result, the Court concluded that the Plaintiff had not satisfied the requirements of Rule 26(a)(2)(C).
Although Plaintiff’s noncompliance with Rule 26(a)(2)(C) was harmless, the Court permitted Plaintiff to remedy the deficiency of his disclosure
If the Defendant had already deposed Bazant without access to all the information related to his opinions on the Plaintiff’s future treatment, impairments, and recommended accommodations, it might have resulted in unfair surprise. However, the Court could not determine from the record whether Bazant had actually been deposed. The fact that the Defendant filed a Motion to Strike based solely on the Plaintiff’s disclosure suggested that the Defendant had recognized the disclosure’s deficiencies early enough to avoid being unfairly surprised. Additionally, neither party cited any of Bazant’s opinions in support of a motion. Therefore, the Court concluded that the Defendant was not unfairly surprised by the Plaintiff’s inadequate disclosure.
The Court also considered the importance of Bazant’s testimony. While the significance of the evidence could be argued in both directions, courts generally hold that the more important the testimony, the more it weighs in favor of the party who disclosed the witness. Since the Plaintiff sought relief for the Defendant’s alleged failure to accommodate his condition under the Americans with Disabilities Act, expert testimony on reasonable and necessary accommodations was considered important to the Plaintiff’s claim.
Lastly, the Court evaluated the Plaintiff’s explanation for failing to adequately disclose Bazant as an expert witness. The Plaintiff argued that Bazant was not disclosed as an expert because he was a treating physician and therefore should be treated as a lay witness not subject to Rule 26(a)(2)(C). However, because the legal standards under Rule 26(a)(2)(C) had become more settled since the rule’s amendment, the Court found the Plaintiff’s explanation to be insufficient.
Taking these factors together, the Court held that Plaintiff’s mistake was harmless. The Court, consequently, permitted Plaintiff to supplement his disclosure of Bazant to remedy the deficiencies while bearing in mind the requirements of Rule 26(a)(2)(C).
Held
The Court denied the Defendant’s motion to strike the testimony of Mark Bazant without prejudice.
Key Takeaway:
Under Rule 701, a lay witness may testify in the form of an opinion only if it is not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Thus, a witness that provides opinion testimony beyond the scope of Rule 701 must be disclosed under Rule 26(a)(2) of the Federal Rules of Civil Procedure. Treating physicians may provide lay opinion testimony under Rule 701 provided such testimony is based on their first-hand observations and treatments of their patients.
Here, the Court held that Bazant’s intended testimony is expert testimony governed by Rule 26(a)(2) because it includes medical judgments based on his specialized knowledge and training.
Case Details:
| Case Caption: | Braun V. Norton Healthcare, Inc. |
| Docket Number: | 3:24cv39 |
| Court Name: | United States District Court, Kentucky Western |
| Order Date: | June 17, 2025 |
