Civil Procedure-Federal Court-Treating Doctor Expert Report

Goodman v. Staples, __F.3d__, 2:08-cv-00445-JAT (9th Cir., May 3, 2011) (J. Silverman)

FEDERAL RULES OF CIVIL PROCEDURE 26(a)(2)(B) REQUIRES PARTY SUBMIT AN EXPERT REPORT AUTHORED BY TREATING PHYSICIAN IF DOCTOR WILL OFFER OPINIONS (SUCH AS CAUSATION) WHICH ARE FORMED OUTSIDE THE COURSE OF TREATMENT

In this slip and fall case the plaintiff attempted to elicit testimony from her treating physicians that the fall caused a fracture to a preexisting fusion mass in her cervical spine, causing severe pain and necessitating fusion revision surgery as well as psychiatric problems. The defense objected to this testimony on the grounds that the doctors had not authored expert opinion reports as required by Federal Rules of Civil Procedure 26(a)(2)(B). This rule requires as part of each party's disclosure obligation that they file reports authored by each expert they intend to call at trial which set forth the expert's qualifications, her opinions and the basis for those opinions, documents and exhibits relied upon as well as a list of cases in which he has testified previously (this rule is different than Rule 26 of the Arizona Rules of Civil Procedure which require disclosure but not reports). The trial court sustained the objection to the causation opinions.

The Ninth Circuit Court of Appeals affirmed on this point finding that while a treating doctor is not always considered an “expert” witness thus requiring a written report, when a treating doctor is asked to testify to matters “outside his course of treatment” and particularly when she is provided information from counsel that is not otherwise received in the normal course of treatment, a rule 26 report is required or the testimony outside the course of treatment will be precluded. Here the treating doctors in question received medical records and reports from plaintiff's counsel that they had not requested and which were not necessary to their care and treatment of the plaintiff. Therefore here the reports were required before causation opinions could be elicited from the treating doctors at trial.

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