Banister v. Burton

In prosecution on section 1983 action alleging that defendants-police officials violated plaintiff's civil rights when they arrested plaintiff on robbery charge to which plaintiff was eventually acquitted, Dist. Ct. did not err in admitting testimony of plaintiff's treating physician, who gave testimony on behalf of defendants that plaintiff could have thrown gun found at arrest scene in spite of several gunshot wounds. Said testimony did not violate Rule 26(a)(2) where defendants disclosed their intention to call said witness, and where witness, as trauma surgeon, had sufficient knowledge to inform jury on issue of plaintiff's ability to throw gun or crawl at arrest scene. Moreover, defendants (who eventually prevailed at jury trial in instant case) were not required to file expert witness report under Rule 26 (a)(2)(B) because said physician was plaintiff's treating physician and was not retained by defendants.