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Practice Tip: Proper Treatment for Treating Physicians' Depositions

By Lawrence Goldhirsch

In many product liability cases, as well as other tort actions, deposition testimony of treating physicians raises several issues. Are treating physicians experts or fact witnesses?

FRCP 26 contemplates two types of experts; FRCP 26(a)(2)(A) requires that a party disclose the identity of any person who is going to testify as an expert at trial. The Advisory Committee Notes to the 1993 amendments of FRCP 26 provide that “the term 'expert' refers to those persons that will testify under Rule 702 of the Federal Rules of Evidence with respect to scientific, technical, and other specialized matters.” FRCP 26(a)(2)(B) requires that any expert “retained or specially employed” must submit a written report for the adversary that contains all opinions to be expressed and the basis and reasons therefor.

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