When Is an Expert Not an Expert?

The defense of a pharmaceutical or medical device product liability case often turns on the testimony of the core treating physicians. As defense counsel, we often are left holding our breath waiting to see how the physicians testify at their depositions or at trial. In addition to providing helpful factual testimony regarding their treatment of the plaintiff and the prescription of the drug or device at issue, the treating physicians may also hold opinions that support the defense, including opinions regarding causation, the adequacy of warnings, or the design of the product. Further, the treating physicians' testimony can lay the foundation for a dispositive motion based on the learned intermediary doctrine, which remains a strong and viable defense for pharmaceutical and medical device manufacturers. On the other hand, treating physicians may also be used by plaintiffs to support their liability allegations or to establish causation. It is, therefore, important for defense counsel to identify the key treating physicians early, to discover the potential scope of their testimony and opinions, and to try to work closely with their counsel.

The disclosure of the treating physicians under Rule 26 of the Federal Rules of Civil Procedure can determine the scope of the physician's testimony at trial. If the treating physician is not properly disclosed, a court may exclude or severely limit the physician's testimony. Thus, it is imperative that defense counsel be aware of current court decisions interpreting the disclosure of treating physicians under Rule 26 in their relevant jurisdiction. This will aid defense counsel both in developing strategy regarding their Rule 26 disclosures of treating physicians and in capitalizing on the opposing side's errors regarding disclosures of treating physicians. To that end, this article provides an analysis of federal court decisions over the past year that address Rule 26 disclosures of treating physicians.

The Interplay Between Rule 26(a)(2)(A) and Rule 26(a)(2)(B)

Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure provides that “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Rules 702, 703, and 705 of the Federal Rules of Evidence govern the admission of expert evidence. Pursuant to Rule 702, “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” Accordingly, Rule 26(a)(2)(A) requires disclosure of any witness who will present expert testimony at trial.

Rule 26(a)(2)(B) provides that Rule 26(a)(2) disclosures “must be accompanied by a written report ' if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.” The Advisory Committee notes explain that subdivision (b)(4) does not apply to the expert whose information was acquired “because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.” (Advisory Committee Note to the 1973 Amendment.) Furthermore, the Advisory Committee's note to the 1993 Amendment to Rule 26 specifically states that “[a] treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report.” (Advisory Committee's note to the 1993 Amendment.)

The failure to provide expert disclosures subjects a party to sanctions under Rule 37. According to Rule 37(c)(1), “[a] party that without substantial justification fails to disclose information required by Rule 26(a) ' is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed.” The court can also impose other appropriate sanctions.

Is the Treating Physician's Proposed Testimony Considered Fact or Opinion Testimony?

Across jurisdictions, most courts have found that a treating physician may have expert opinions and should thus be disclosed as an expert witness under Rule 26(a)(2)(A). The scope of a treating physician's testimony as an expert, as compared with testimony as a fact witness, however, differs among jurisdictions. Some courts interpret a treating physician's fact testimony broadly to include any testimony based on the physician's care and treatment of the patient. Only when the treating physician's proposed testimony goes outside of that broadly defined scope is disclosure under Rule 26(a)(2)(A) required. Other courts view a treating physician's fact testimony as limited only to the physician's observations and actions in caring for the patient. Thus, a disclosure of the treating physician under Rule 26(a)(2)(A) would be required even where the physician would be called upon to explain his or her diagnosis and prognosis for the patient. One court explained, for example, that disclosure of a treating physician was required under Rule 26(a)(2)(A) because “a treating physician's diagnoses, prognoses, or other conclusions as to the patient's condition ' are examples of the physician's 'specialized knowledge' [under Rule 702 of the Federal Rules of Evidence] ' ” Coffey v. Dartmouth Hitchcock Medical Center, 611 F. Supp. 2d 78, 88 (D. N. H. 2009). The court found that treating physicians not disclosed under Rule 26(a)(2)(A) could still testify as to fact testimony in terms of “what they saw and what they did in the course of caring for a patient.” Id. at 89 (internal citations omitted). The court granted the plaintiff's motion to preclude treating physicians who were not disclosed by the defendant under Rule 26(a)(2)(A) from offering any expert opinion testimony at trial.

Similarly, in Kirkpatrick v. Pfizer, Inc., Case No. CIV-09-92-C, 2009 U.S. Dist. Lexis 38633, at *7 (W.D. Okla. May 6, 2009), the court denied the defendant's motion to preclude the plaintiff from offering the testimony of the plaintiff's treating physician as to the issue of causation. The plaintiff had failed to disclose the physician as an expert under Rule 26(a)(2)(A). Id. at *6. The court found that the physician was not an expert because he was the plaintiff's “long-term, treating physician and his testimony is based on that history.” Id. Instead, the court found that the physician's testimony was limited by Rule 701 of the Federal Rules of Evidence governing lay witnesses. Id. The court held that the physician's testimony “must be limited to his treatment of Plaintiff and any observations he made during that treatment.” Id. at *7. As to causation testimony by the treating physician, the physician could “offer medical testimony to explain his treatment but [could] not offer opinions which extend beyond the scope of his treatment ' ” Id.

The United States District Court for the District of Kansas in Jones v. Greyhound Lines, Inc., Case No. 08-1185-MLB-DWB, 2009 U.S. Dist LEXIS 64942, at *6-9 (D. Kan. July 22, 2009), on the other hand, set out different criteria for distinguishing between a treating physician as a fact witness as compared with an expert witness. The court in Jones relied on prior decision by the District of Kansas in McReynolds v. Bigler, No. 88-1343, 1990 U.S. Dist. LEXIS 11651 (D. Kan. Aug. 6, 1990), as a guide for its ruling. Id. In relying on the McReynolds decision, the court found that “a physician who testifies on information and opinions developed and drawn during the treatment of the party as a patient is considered to be an ordinary fact witness rather than an expert.” Id. at *6 (internal citations omitted). The court recognized that there was “no single bright line test” and that “the court must look to whether the medical opinions, conclusions, and observations being offered by the treating physician necessarily played a role in his or her care and treatment of the plaintiff.” Id. at *8 (internal citations omitted). Based on these criteria, the court in Jones held that it could not give the plaintiff any advance ruling as to whether or not expert reports would be necessary for any of the treating physicians that the plaintiff may call as witnesses at trial. Id. at *12.

Is the Treating Physician a 'Retained' Expert?

If counsel determines that the treating physician should be disclosed as an expert under Rule 26(a)(2)(A), counsel must also determine whether an expert report for the treating physician is required under Rule 26(a)(2)(B). Under Rule 26(a)(2)(B), a party need only produce an expert report for a disclosed expert if the expert is “retained or specially employed to provide expert testimony ' .” Although a treating physician may not be formally retained or paid by a party to serve as an expert, some courts have found nonetheless that an expert report for the treating physician is required under certain circumstances. Other courts have ruled consistent with the Advisory Committee's note to the 1993 Amendment to Rule 26 that “[a] treating physician ' can be deposed or called to testify at trial without any requirement for a written report.”

The Seventh Circuit has held that an expert report was not required for a treating physician whose testimony was based on the medical chart he prepared and concerned his treatment of the patient and his diagnosis, which he reached during his treatment. Blameuser v. Hasenfang, 345 Fed. Appx. 184, 187 (7th Cir. 2009). The Seventh Circuit declined to answer the question of “what to do with a treating physician who proposes to testify in the manner of a hired expert, i.e., offering an opinion regarding what might have happened to the patient that does not rely on that physician's personal treatment of the patient.” Id. The United States District Court for the District of Vermont likewise held that an expert report for a treating physician was not required under Rule 26(a)(2)(B) if the treating physician's opinions about causation, prognosis, or permanency of injury are “based on information acquired within the scope of [the patient's] treatment.” Hill v. McCoy, No. 2:06-cv-233, 2009 U.S. Dist. LEXIS 21032, at * 3 (D. Vt. March 16, 2009). The court also did not address the question of whether a report is required if the treating physician's opinions go beyond the scope of the patient's treatment.

Other courts, however, have attempted to answer this question left undecided by the Seventh Circuit and the District of Vermont. In Lanham v. Sandberg Trucking, Inc., No. 4:06CV1179HEA, 2010 U.S. Dist. LEXIS 9441, at * 9 (E.D. Mo. Feb. 4, 2010), for example, the United States District Court for the Eastern District of Missouri held that the plaintiff was not required to prepare written reports for treating physicians identified as experts, unless the treating physicians' testimony “goes beyond the realm of treatment.” The court explained at the outset that “a treating physician's opinions regarding causation, degree of permanent disability, and need for future care are a necessary part of the treatment of the patient.” Id. at *6 (internal citations omitted). The court then drew a distinction between opinions “based on his or her personal knowledge of the examination, diagnosis and treatment” and opinions that “go[] beyond information obtained during the physician's care and treatment of the patient.” (internal citations omitted). Id. at *7. According to the court, a treating physician who asks to review medical records from another health care provider for the purpose of rendering opinion testimony may be considered “specially retained” and subject to the report requirements of Rule 26(a)(2)(B). Id. The court also held that a treating physician selected by the attorney for care and treatment of the patient would also be subject to the Rule 26(a)(2)(B) report requirements. Id.

The court in Jones v. Greyhound Lines, Inc., supra at *11-12, similarly explained that “[w]here a treating physician is asked to review the medical records of another health care provider for the purpose of rendering opinion testimony, the physician may be considered 'specially retained' and, therefore, subject to the requirements of Rule 26(a)(2)(B), despite having also treated the patient.” Id. (quoting Sellers v. Butler, No. 02-3055-DJW, 2006 U.S. Dist. LEXIS 68579 (D. Kan. Sept. 22, 2006).

Notably, the court in Tridle v. Union Pacific Railroad Company, No. 8:08CV470, 2009 U.S. Dist. LEXIS 115076, at *4 (D. Neb. Dec. 10, 2009), granted the defendant's motion to strike anticipated causation testimony of the plaintiff's treating physicians based on the plaintiff's failure to produce expert reports for the treating physicians. The court explained that an expert report under Rule 26(a)(2)(B) was not required if the treating physician's testimony was limited to his diagnosis and treatment of the patient. Id. The court held, however, that “a treating physician is not permitted to offer opinion testimony on medical causation unless he has properly disclosed such opinions pursuant to Rule 26(a)(2)(B).” Id. In contrast, the court in Ramirez v. City of Chicago, No. 05C317, 2009 U.S. Dist. LEXIS 107549, at *11-12 (N.D. Ill. Nov. 17, 2009), held that an expert report was not required under Rule 26(a)(2)(B) for a treating physician who was expected to testify as to his diagnosis, including possible causation opinions, because they were formulated during the course of his treatment.

Failure to Disclose Under Rule 26: Was It Harmless Error?

Failure to disclose a treating physician appropriately under Rule 26 can result in the exclusion or limitation of the treating physician's testimony pursuant to Rule 37(c)(1). If, however, the party can show that the failure to disclose the treating physician was harmless error or that there was substantial justification for failing to disclose the treating physician, the court may not exclude or limit the testimony or otherwise sanction the party.

In Silverstein v. Procter & Gamble Manufacturing Co., CV108-003, 2009 U.S. Dist. LEXIS 101627, at *17 (S.D. Ga. Oct. 30, 2009), the plaintiff filed an affidavit of a treating physician in opposition to the defendant's motion for summary judgment based on failure to establish specific causation. There was no dispute that the plaintiff failed to disclose the treating physician as an expert witness under Rule 26(a)(2)(A). Id. The court, however, found that the failure to disclose the treating physician as an expert was harmless because the defendant had adequate notice that the treating physician could be called as a witness and had already taken his deposition. Id. at *18. The court acknowledged that the degree of certainty of the treating physician as to his causation opinion changed between his deposition and his affidavit, although the basis for his opinions remained the same. Id. According to the court, “[d]efendants have not been subject to unfair surprise.” Id. The court thus permitted the treating physician's affidavit as evidence of specific causation, even though the plaintiff failed to disclose him as an expert pursuant to Rule 26(a)(2)(A). Id. at *19.

Conclusion

It is important that defense counsel start planning their strategy related to disclosure of treating physicians in advance of any Rule 26 disclosure deadline. This should first include a thorough examination of relevant case law related to Rule 26 disclosures in the pertinent jurisdiction. In addition, this planning would include a thorough analysis of the medical records to determine the key treating physicians and potential helpful opinions they may hold. It may also include an early determination to meet with the treating physician, if allowed in the jurisdiction, or to take the physician's deposition prior to the disclosure deadline. Defense counsel, however, may not have complete knowledge regarding the treating physician and his or her opinions or proposed testimony until after the deadline for Rule 26 disclosures. In such a case, defense counsel should be sure to supplement any Rule 26 disclosures of the treating physician promptly prior to trial. See Rule 26(e). In addition, defense counsel should consider and weigh the potential jury perception of a treating physician as a “retained” expert as opposed to an independent witness if disclosing a treating physician under Rule 26(a)(2)(B). Further, defense counsel should also analyze the opposing party's Rule 26 disclosures to determine if treating physicians were properly disclosed and consider potential motions to exclude or other discovery or dispositive motions based on any failure to properly disclose.

Lori G. Cohen, a member of this newsletter's Board of Editors, is a shareholder in Greenberg Traurig, LLP's Atlanta office and is the Chair of the firm's Pharmaceutical and Medical Device Litigation Group. She has been recognized by the National Law Journal as one of “The 50 Most Influential Women Lawyers in America.” Christiana C. Jacxsens is a shareholder in the Pharmaceutical and Medical Device Litigation Group of Greenberg Traurig, LLP's Atlanta office. Ms. Jacxsens concentrates her practice on complex medical and product liability litigation, with a focus on pharmaceutical and medical device litigation, and brings to her practice of law a Masters in Public Health and scientific research experience.

The defense of a pharmaceutical or medical device product liability case often turns on the testimony of the core treating physicians. As defense counsel, we often are left holding our breath waiting to see how the physicians testify at their depositions or at trial. In addition to providing helpful factual testimony regarding their treatment of the plaintiff and the prescription of the drug or device at issue, the treating physicians may also hold opinions that support the defense, including opinions regarding causation, the adequacy of warnings, or the design of the product. Further, the treating physicians' testimony can lay the foundation for a dispositive motion based on the learned intermediary doctrine, which remains a strong and viable defense for pharmaceutical and medical device manufacturers. On the other hand, treating physicians may also be used by plaintiffs to support their liability allegations or to establish causation. It is, therefore, important for defense counsel to identify the key treating physicians early, to discover the potential scope of their testimony and opinions, and to try to work closely with their counsel.

The disclosure of the treating physicians under Rule 26 of the Federal Rules of Civil Procedure can determine the scope of the physician's testimony at trial. If the treating physician is not properly disclosed, a court may exclude or severely limit the physician's testimony. Thus, it is imperative that defense counsel be aware of current court decisions interpreting the disclosure of treating physicians under Rule 26 in their relevant jurisdiction. This will aid defense counsel both in developing strategy regarding their Rule 26 disclosures of treating physicians and in capitalizing on the opposing side's errors regarding disclosures of treating physicians. To that end, this article provides an analysis of federal court decisions over the past year that address Rule 26 disclosures of treating physicians.

The Interplay Between Rule 26(a)(2)(A) and Rule 26(a)(2)(B)

Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure provides that “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Rules 702, 703, and 705 of the Federal Rules of Evidence govern the admission of expert evidence. Pursuant to Rule 702, “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” Accordingly, Rule 26(a)(2)(A) requires disclosure of any witness who will present expert testimony at trial.

Rule 26(a)(2)(B) provides that Rule 26(a)(2) disclosures “must be accompanied by a written report ' if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.” The Advisory Committee notes explain that subdivision (b)(4) does not apply to the expert whose information was acquired “because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.” (Advisory Committee Note to the 1973 Amendment.) Furthermore, the Advisory Committee's note to the 1993 Amendment to Rule 26 specifically states that “[a] treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report.” (Advisory Committee's note to the 1993 Amendment.)

The failure to provide expert disclosures subjects a party to sanctions under Rule 37. According to Rule 37(c)(1), “[a] party that without substantial justification fails to disclose information required by Rule 26(a) ' is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed.” The court can also impose other appropriate sanctions.

Is the Treating Physician's Proposed Testimony Considered Fact or Opinion Testimony?

Across jurisdictions, most courts have found that a treating physician may have expert opinions and should thus be disclosed as an expert witness under Rule 26(a)(2)(A). The scope of a treating physician's testimony as an expert, as compared with testimony as a fact witness, however, differs among jurisdictions. Some courts interpret a treating physician's fact testimony broadly to include any testimony based on the physician's care and treatment of the patient. Only when the treating physician's proposed testimony goes outside of that broadly defined scope is disclosure under Rule 26(a)(2)(A) required. Other courts view a treating physician's fact testimony as limited only to the physician's observations and actions in caring for the patient. Thus, a disclosure of the treating physician under Rule 26(a)(2)(A) would be required even where the physician would be called upon to explain his or her diagnosis and prognosis for the patient. One court explained, for example, that disclosure of a treating physician was required under Rule 26(a)(2)(A) because “a treating physician's diagnoses, prognoses, or other conclusions as to the patient's condition ' are examples of the physician's 'specialized knowledge' [under Rule 702 of the Federal Rules of Evidence] ' ” Coffey v. Dartmouth Hitchcock Medical Center , 611 F. Supp. 2d 78, 88 (D. N. H. 2009). The court found that treating physicians not disclosed under Rule 26(a)(2)(A) could still testify as to fact testimony in terms of “what they saw and what they did in the course of caring for a patient.” Id. at 89 (internal citations omitted). The court granted the plaintiff's motion to preclude treating physicians who were not disclosed by the defendant under Rule 26(a)(2)(A) from offering any expert opinion testimony at trial.

Similarly, in Kirkpatrick v. Pfizer, Inc. , Case No. CIV-09-92-C, 2009 U.S. Dist. Lexis 38633, at *7 (W.D. Okla. May 6, 2009), the court denied the defendant's motion to preclude the plaintiff from offering the testimony of the plaintiff's treating physician as to the issue of causation. The plaintiff had failed to disclose the physician as an expert under Rule 26(a)(2)(A). Id. at *6. The court found that the physician was not an expert because he was the plaintiff's “long-term, treating physician and his testimony is based on that history.” Id. Instead, the court found that the physician's testimony was limited by Rule 701 of the Federal Rules of Evidence governing lay witnesses. Id. The court held that the physician's testimony “must be limited to his treatment of Plaintiff and any observations he made during that treatment.” Id. at *7. As to causation testimony by the treating physician, the physician could “offer medical testimony to explain his treatment but [could] not offer opinions which extend beyond the scope of his treatment ' ” Id.

The United States District Court for the District of Kansas in Jones v. Greyhound Lines, Inc., Case No. 08-1185-MLB-DWB, 2009 U.S. Dist LEXIS 64942, at *6-9 (D. Kan. July 22, 2009), on the other hand, set out different criteria for distinguishing between a treating physician as a fact witness as compared with an expert witness. The court in Jones relied on prior decision by the District of Kansas in McReynolds v. Bigler, No. 88-1343, 1990 U.S. Dist. LEXIS 11651 (D. Kan. Aug. 6, 1990), as a guide for its ruling. Id. In relying on the McReynolds decision, the court found that “a physician who testifies on information and opinions developed and drawn during the treatment of the party as a patient is considered to be an ordinary fact witness rather than an expert.” Id. at *6 (internal citations omitted). The court recognized that there was “no single bright line test” and that “the court must look to whether the medical opinions, conclusions, and observations being offered by the treating physician necessarily played a role in his or her care and treatment of the plaintiff.” Id. at *8 (internal citations omitted). Based on these criteria, the court in Jones held that it could not give the plaintiff any advance ruling as to whether or not expert reports would be necessary for any of the treating physicians that the plaintiff may call as witnesses at trial. Id. at *12.

Is the Treating Physician a 'Retained' Expert?

If counsel determines that the treating physician should be disclosed as an expert under Rule 26(a)(2)(A), counsel must also determine whether an expert report for the treating physician is required under Rule 26(a)(2)(B). Under Rule 26(a)(2)(B), a party need only produce an expert report for a disclosed expert if the expert is “retained or specially employed to provide expert testimony ' .” Although a treating physician may not be formally retained or paid by a party to serve as an expert, some courts have found nonetheless that an expert report for the treating physician is required under certain circumstances. Other courts have ruled consistent with the Advisory Committee's note to the 1993 Amendment to Rule 26 that “[a] treating physician ' can be deposed or called to testify at trial without any requirement for a written report.”

The Seventh Circuit has held that an expert report was not required for a treating physician whose testimony was based on the medical chart he prepared and concerned his treatment of the patient and his diagnosis, which he reached during his treatment. Blameuser v. Hasenfang , 345 Fed. Appx. 184, 187 (7th Cir. 2009). The Seventh Circuit declined to answer the question of “what to do with a treating physician who proposes to testify in the manner of a hired expert, i.e., offering an opinion regarding what might have happened to the patient that does not rely on that physician's personal treatment of the patient.” Id. The United States District Court for the District of Vermont likewise held that an expert report for a treating physician was not required under Rule 26(a)(2)(B) if the treating physician's opinions about causation, prognosis, or permanency of injury are “based on information acquired within the scope of [the patient's] treatment.” Hill v. McCoy, No. 2:06-cv-233, 2009 U.S. Dist. LEXIS 21032, at * 3 (D. Vt. March 16, 2009). The court also did not address the question of whether a report is required if the treating physician's opinions go beyond the scope of the patient's treatment.

Other courts, however, have attempted to answer this question left undecided by the Seventh Circuit and the District of Vermont. In Lanham v. Sandberg Trucking, Inc., No. 4:06CV1179HEA, 2010 U.S. Dist. LEXIS 9441, at * 9 (E.D. Mo. Feb. 4, 2010), for example, the United States District Court for the Eastern District of Missouri held that the plaintiff was not required to prepare written reports for treating physicians identified as experts, unless the treating physicians' testimony “goes beyond the realm of treatment.” The court explained at the outset that “a treating physician's opinions regarding causation, degree of permanent disability, and need for future care are a necessary part of the treatment of the patient.” Id. at *6 (internal citations omitted). The court then drew a distinction between opinions “based on his or her personal knowledge of the examination, diagnosis and treatment” and opinions that “go[] beyond information obtained during the physician's care and treatment of the patient.” (internal citations omitted). Id. at *7. According to the court, a treating physician who asks to review medical records from another health care provider for the purpose of rendering opinion testimony may be considered “specially retained” and subject to the report requirements of Rule 26(a)(2)(B). Id. The court also held that a treating physician selected by the attorney for care and treatment of the patient would also be subject to the Rule 26(a)(2)(B) report requirements. Id.

The court in Jones v. Greyhound Lines, Inc., supra at *11-12, similarly explained that “[w]here a treating physician is asked to review the medical records of another health care provider for the purpose of rendering opinion testimony, the physician may be considered 'specially retained' and, therefore, subject to the requirements of Rule 26(a)(2)(B), despite having also treated the patient.” Id. (quoting Sellers v. Butler, No. 02-3055-DJW, 2006 U.S. Dist. LEXIS 68579 (D. Kan. Sept. 22, 2006).

Notably, the court in Tridle v. Union Pacific Railroad Company, No. 8:08CV470, 2009 U.S. Dist. LEXIS 115076, at *4 (D. Neb. Dec. 10, 2009), granted the defendant's motion to strike anticipated causation testimony of the plaintiff's treating physicians based on the plaintiff's failure to produce expert reports for the treating physicians. The court explained that an expert report under Rule 26(a)(2)(B) was not required if the treating physician's testimony was limited to his diagnosis and treatment of the patient. Id. The court held, however, that “a treating physician is not permitted to offer opinion testimony on medical causation unless he has properly disclosed such opinions pursuant to Rule 26(a)(2)(B).” Id. In contrast, the court in Ramirez v. City of Chicago, No. 05C317, 2009 U.S. Dist. LEXIS 107549, at *11-12 (N.D. Ill. Nov. 17, 2009), held that an expert report was not required under Rule 26(a)(2)(B) for a treating physician who was expected to testify as to his diagnosis, including possible causation opinions, because they were formulated during the course of his treatment.

Failure to Disclose Under Rule 26: Was It Harmless Error?

Failure to disclose a treating physician appropriately under Rule 26 can result in the exclusion or limitation of the treating physician's testimony pursuant to Rule 37(c)(1). If, however, the party can show that the failure to disclose the treating physician was harmless error or that there was substantial justification for failing to disclose the treating physician, the court may not exclude or limit the testimony or otherwise sanction the party.

In Silverstein v. Procter & Gamble Manufacturing Co., CV108-003, 2009 U.S. Dist. LEXIS 101627, at *17 (S.D. Ga. Oct. 30, 2009), the plaintiff filed an affidavit of a treating physician in opposition to the defendant's motion for summary judgment based on failure to establish specific causation. There was no dispute that the plaintiff failed to disclose the treating physician as an expert witness under Rule 26(a)(2)(A). Id. The court, however, found that the failure to disclose the treating physician as an expert was harmless because the defendant had adequate notice that the treating physician could be called as a witness and had already taken his deposition. Id. at *18. The court acknowledged that the degree of certainty of the treating physician as to his causation opinion changed between his deposition and his affidavit, although the basis for his opinions remained the same. Id. According to the court, “[d]efendants have not been subject to unfair surprise.” Id. The court thus permitted the treating physician's affidavit as evidence of specific causation, even though the plaintiff failed to disclose him as an expert pursuant to Rule 26(a)(2)(A). Id. at *19.

Conclusion

It is important that defense counsel start planning their strategy related to disclosure of treating physicians in advance of any Rule 26 disclosure deadline. This should first include a thorough examination of relevant case law related to Rule 26 disclosures in the pertinent jurisdiction. In addition, this planning would include a thorough analysis of the medical records to determine the key treating physicians and potential helpful opinions they may hold. It may also include an early determination to meet with the treating physician, if allowed in the jurisdiction, or to take the physician's deposition prior to the disclosure deadline. Defense counsel, however, may not have complete knowledge regarding the treating physician and his or her opinions or proposed testimony until after the deadline for Rule 26 disclosures. In such a case, defense counsel should be sure to supplement any Rule 26 disclosures of the treating physician promptly prior to trial. See Rule 26(e). In addition, defense counsel should consider and weigh the potential jury perception of a treating physician as a “retained” expert as opposed to an independent witness if disclosing a treating physician under Rule 26(a)(2)(B). Further, defense counsel should also analyze the opposing party's Rule 26 disclosures to determine if treating physicians were properly disclosed and consider potential motions to exclude or other discovery or dispositive motions based on any failure to properly disclose.

Lori G. Cohen, a member of this newsletter's Board of Editors, is a shareholder in Greenberg Traurig, LLP's Atlanta office and is the Chair of the firm's Pharmaceutical and Medical Device Litigation Group. She has been recognized by the National Law Journal as one of “The 50 Most Influential Women Lawyers in America.” Christiana C. Jacxsens is a shareholder in the Pharmaceutical and Medical Device Litigation Group of Greenberg Traurig, LLP's Atlanta office. Ms. Jacxsens concentrates her practice on complex medical and product liability litigation, with a focus on pharmaceutical and medical device litigation, and brings to her practice of law a Masters in Public Health and scientific research experience.