Opinion
NO. CIV. S-08-2538 LKK/EFB.
January 14, 2010
ORDER
The court is in receipt of a letter, filed through the electronic filing system, in which plaintiff asks "whether treating physicians, who are not `retained or specifically employed to provide expert testimony in the case' (FRCP 26(a)(2)(B)) will be required to furnish a written report at the time of disclosure." (emphasis in original).
As the language quoted by plaintiff makes clear, Fed.R.Civ.P. 26(a)(2)(B) does not require an expert report for all witnesses who provide expert testimony. Instead, a report is required only for witnesses "retained or specifically employed to provide" expert testimony. The advisory committee note on this section explains that because of the narrow scope of this requirement, "A treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report."
In light of this language, several courts have held that while a treating physician must be disclosed as an expert, the treating physician need not provide an expert report. Watson v. United States, 485 F.3d 1100, 1107 (10th Cir. 2007), Fielden v. CSX Transp. Inc., 482 F.3d 866, 869-70 (6th Cir. 2007). The Ninth Circuit has not ruled on this issue, although it noted the "treating physician" exception in passing in Torres v. City of L.A., 548 F.3d 1197, 1213 (9th Cir. 2008) (distinguishing Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993)). The court follows the Tenth and Sixth Circuits in recognizing a "treating physician" exception to the requirements of Fed.R.Civ.P. 26(a)(2)(B).
This exception is limited, however, in that a treating physician must provide a report detailing any opinions that are formed in connection with the case, rather than with prior treatment. As recently explained by a court in the District of Arizona:
A treating physician is an expert and to the extent he or she treated the plaintiff, diagnosed the conditions and reached a prognosis, that testimony is not testimony for which the expert has been specially retained. But once the lawyer for the claimant undertakes to elicit an opinion whether a particular traumatic event caused the condition as opposed to another cause, the expert has been transformed into the same type of expert envisioned by the report requirement. Of course, if the treatment protocol necessarily called upon the physician to opine on causation then the opinion should be admissible without the necessity of a report.Goodman v. Staples the Office Store, LLC, No. CV 08-0445, 2009 U.S. Dist. LEXIS 115167, *16-17 (D. Ariz. Dec. 9, 2009). Although the court is not aware of an appellate decision addressing this view, several Courts of Appeal have acknowledged the weight of district court authority behind it. Fielden, 482 F.3d at 870-71 (stating that even if this rule applied, expert testimony at issue would be permitted), Musser v. Gentiva Health Servs., 356 F.3d 751, 757, 758 n. 3 (7th Cir. 2004) (leaving the question undecided because treating physician's expert testimony excluded for failure to disclose physician under Fed.R.Civ.P. 26(a)(2)(A)).
Thus, a treating physician must be disclosed as an expert. If the physician will provide expert testimony regarding opinions formed other than in the scope of treatment, an expert report is required. If not, no expert report is necessary.
IT IS SO ORDERED.