Why must a defendant wait until the deposition of a plaintiff's treating physician to discover the doctor's opinions on injury causation, the plaintiff's prognosis, or the permanency of plaintiff's injury? Afater all, defense counsel hired an expert who was required to produce a written report explaining why defendant's product didn't cause plaintiff's injuries and why those injuries aren't permanent. If you are intrigued by the question, you are not alone. Judge Easterbrook noted that when a treating physician testifies beyond his personal observations and treatment, it presents an "interesting question" for federal procedure. See Blameuser v. Hasenfang, 2009 W.L. 2922872, *3 (7th Cir. Sept. 2, 2009).
While district courts in the Seventh Circuit have produced a split of authority on this question, a recent order from the Northern District of Indiana may lead to an answer. That order extends the Federal Rule of Civil Procedure 26(a)(2) (B) written report requirement to treating physicians who will testify regarding causation, prognosis, or permanency. See Colter v. Rockwell Automation, Inc., 3:08-cv-00527-JVB-CAN, Document 48 (N.D. Ind. Nov. 18, 2009).
The Issue of Written Reports
In Colter, an industrial press injured plaintiff's right index finger. Dr. Robert Baltera surgically removed Mr. Colter's finger and Colter returned to work. Due to his injury, Colter was given a job in which he used only his left hand. Subsequently, Colter began to experience pain in his left elbow and eventually needed surgery to relieve the pain. Dr. Jeffrey Yoder treated Colter's left elbow injury and recommended surgery. Dr. Baltera again performed the surgery.
Colter brought suit and disclosed Dr. Baltera and Dr. Yoder as testifying expert witnesses. Colter noted that the doctors would testify as to the causation, treatment, and prognosis of Colter's injuries. However, Colter provided no written reports for either doctor. After a defendant filed a motion to compel production of expert reports for the doctors pursuant to Rule 26(a)(2)(B), the court was faced with the issue of whether the rule requires a treating physician disclosed as a testifying expert to submit a written report.
In reaching its conclusion, the Colter court began with Rule 26(a)(2):
(A) In General. In addition to the disclosures required by Rule 26(a)(1), 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.
(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report – prepared and signed by the witness – 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.
Rule 26 distinguishes retained experts from witnesses providing expert testimony because of their involvement in the factual basis of the case. Musser v. Gentiva Health Servs., 356 F.3d 751, 756 (7th Cir. 2004). As noted by the Seventh Circuit in Musser, Rule 26 requires all witnesses giving expert testimony to be disclosed but requires only those experts retained or specifically employed to submit a written report. Id. Musser went so far as to say that treating physicians and nurses must be designated as experts if they are to provide expert testimony, but it set aside the issue of whether a written report would be required of such witnesses. Id. at 758. Thus, in Colter, the district court was deciding an issue the Seventh Circuit had not addressed.
Although the Seventh Circuit had not ruled on the issue, the Colter court was not making its decision in a vacuum. The Seventh Circuit characterized the purpose of Rule 26(a)(2) disclosures as follows: "The expert witness discovery rules are designed to aid the court in its fact-finding mission by allowing both sides to prepare their cases adequately and efficiently and to prevent the tactic of surprise from affecting the outcome of the case." Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). This guidance helped the Colter court navigate the sea of disparate decisions on this issue.
District Courts Split on the Issue
Several courts, including the Southern District of Indiana, have allowed treating physicians to offer opinions regarding causation, prognosis, and permanency without providing written reports. See Martin v. CSX Transp., Inc., 215 F.R.D. 554 (S.D. Ind. 2003); see also Sprague v. Liberty Mut. Ins. Co., 177 F.R.D. 78 (D.N.H. 1998); Mangla v. University of Rochester, 168 F.R.D. 137 (W.D.N.Y. 1996). But other courts, including the Northern District of Indiana, have held that treating physicians must provide a written report when they will testify beyond their observations, diagnosis, or treatment to opine on causation, prognosis, or permanency. See Eagle Servs. Corp. v. H20 Indus. Servs., Inc., 2005 WL 5988646 (N.D. Ind. Sept. 30, 2005); see also Silong v. United States, 2007 WL 2712100 (E.D. Cal. Sept. 14, 2007); Griffith v. Northeast Ill. Reg'l Commuter R.R. Corp., 233 F.R.D. 513 (N.D. Ill. 2006); Brandon v. Village of Maywood, 179 F.Supp. 2d 847 (N.D. Ill. 2001). The Colter court followed the latter line of cases, beginning with Eagle Services, another Northern District of Indiana decision.
In Eagle Services, the issue was also whether an expert offered to testify about her own factual experiences was required to submit a written report. The plaintiff argued that the expert, who had performed some services for the plaintiff in the past, was analogous to a treating physician and, therefore, a written report was unnecessary because the basis for the opinion came from her own performance of services. Eagle Servs. at *1. The Eagle Services court noted the split on this issue but drew on the reasoning of an Illinois district court case to support its decision. The court ultimately held that written reports were required, citing the reasoning of Sowell v. Burlington N. & Santa Fe Ry. Co., 2004 WL 2812090 (N.D. Ill. Dec. 7, 2004).
Like the court in Eagle Services, the Colter court followed the reasoning of Sowell in holding that treating physicians must provide written reports when their opinions will go beyond their observations, diagnosis, or treatment. A summary of the arguments in Sowell suggests how courts may continue to analyze this issue.
Sowell, who was injured at work, identified several treating physicians as testifying experts but did not provide written reports for them. Defendant argued that Sowell's disclosure-which indicated that his physicians would offer opinions beyond their observations and treatment-triggered the written report requirement of Rule 26(a)(2)(B). Sowell at *2. Defendant sought an order striking Sowell's physicians insofar as they would testify to causation, prognosis, degree of permanency, and whether Sowell would be unable to return to work. Id. The Sowell court thoroughly analyzed the issue before announcing its holding.
Support for Requiring Reports
First, the Sowell court pointed out that treating physicians are certainly giving "expert" testimony-regardless of their opinions. Federal Rule of Evidence 701 makes clear that the opinion of a lay witness cannot be based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Id. at *4. Furthermore, Musser specifically held that treating physicians must be designated as expert witnesses under Rule 26. Id.
Second, Sowell distinguished between types of testimony from treating physicians. It noted that several courts do not require written reports because the physician is testifying from her own personal knowledge and observations. Id. However, the court reasoned that "unless the physician was present at the time the injury occurred, it is difficult to see how his or her opinion as to the cause of the injury can be based on personal knowledge." Id.
Third, the court drew a distinction between an entry on a medical record as to the reported cause of an injury and causation testimony for the purpose of allocating legal liability. It is within the normal range of duties for a health care provider to develop opinions for the purposes of treatment, and those opinions are incident to the treatment. Id. However, causation is much more important in a lawsuit than in medical treatment, said the Sowell court, so the requirement of a written report is consistent with the importance of causation in determining liability. Id.
Later, the Sowell court suggested that requiring a written report will likely reduce the length of the deposition of a treating physician and may even eliminate the need for a deposition altogether. Id. at *5-6. While this may not always be the case, the court may have been acknowledging the written report as an aid to case evaluation that could lead to earlier settlements.
Next, the court noted that a "federal judge has responsibility as a 'gatekeep[er]' to prevent unfounded opinions from being presented to the trier of fact in the guise of 'expert' testimony." Id. at *6 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 589 n.7 (1993)). According to the Sowell court, "the parties have the obligation to provide the court with the information that is needed to fulfill that role. The court must have serious reservations about allowing a witness who is unable or unwilling to provide the information required by Rule 26(a)(2)(B) to testify to opinions on issues as important as whether the plaintiff's injury was caused by the accident or whether the plaintiff will ever be able to return to work." Id.
Finally, the Sowell court held that where a treating physician is testifying regarding her own observations, diagnosis, and treatment, a written report is not required. Id. In those cases the physician is not "retained or specifically employed" within the meaning of Rule 26(a)(2)(B). However, where a treating physician will offer "opinions at trial regarding issues such as causation and ability to perform occupational duties, that physician is, in fact, being retained for the purpose of providing expert testimony in the case." Id. In such a case, a written report is required.
Although not mirroring Sowell, Colter used some of the same reasoning to reach the same holding. The Colter court explained that its rule was announced "in order to avoid trial by surprise and to allow this Court and the parties to determine whether the proposed testimony meets the standards of FRE 702." Colter at *6. Furthermore, Colter suggests that although requiring such written reports may increase expenses, the absence of these reports will not result in decreased expenses. Indeed, as Colter notes, physicians are routinely deposed to determine the contents of opinions on causation, prognosis, and permanency, whether a written report is required or provided or not. All of this being said, what does Colter mean for the practitioner?
One thing appears relatively certain: in the Northern District of Indiana a written report satisfying the requirements of Federal Rule 26(a)(2)(B) is required for any treating physician who will testify on causation, prognosis, or permanency. However, the split among the district courts suggests that this issue is ripe for comment by the Seventh Circuit.
Beyond that, Colter acts as a reminder to practitioners to be vigilant when opponents designate treating physicians as testifying experts. Are they attempting to use a treating physician to opine on causation? Defense attorneys are now equipped with another tool to challenge and potentially strike their opponents' treating physicians when designated as experts. The district court's role as gatekeeper can be invoked to limit their testimony to treatment and observations, unless the doctor provides a written report.
Similarly, if you are designating a treating physician as a testifying expert, take care early in your case to identify the types of opinions you expect from your doctor. Will he testify only as to his observations or treatment? Or do you expect him to comment on causation or the permanency of the injury? Discuss these distinctions with your treating physician expert so he knows the rules and so you are ready for any challenges to the scope of his opinions.
Update: Files of Nontestifying Experts Are Protected from Discovery in Later Litigation
The Indiana Court of Appeals recently held that the files of nontestifying experts from prior litigation remain protected from discovery in later litigation, reversing the trial court and narrowing a 20-year old precedent.
In White-Rodgers v. Kindle, – N.E.2d -, 2010 WL 1486883 (Ind. Ct. App. April 14, 2010), a water heater exploded in an apartment and injured plaintiffs and their relatives. The plaintiffs asserted products liability claims against White-Rodgers for its water heater control. During discovery, the trial court ordered White-Rodgers to produce nonprivileged documents from a prior Missouri case involving a White-Rodgers product. The plaintiffs believed White-Rodgers did not comply.
The plaintiffs moved to compel production of the expert reports of White-Rodgers from the Missouri case based on American Buildings v. Kokomo Grain, 506 N.E.2d 56 (Ind. Ct. App. 1987), which held that the protections of Rule 26 do not extend to experts retained in anticipation of prior litigation. White-Rodgers argued these items were protected because they never designated those experts as testifying experts. The trial court ordered White-Rodgers to produce the reports and pay sanctions, but the court of appeals reversed.
The court of appeals held that Rule 26(B)(4)'s discovery protections for nontestifying experts extend to subsequent litigation, absent the exceptional circumstances described in the rule, narrowing the holding of American Buildings. To limit the protections of the rule to only the instant litigation would "chill the purposes of the discovery rules." Chief Judge Baker wrote for the majority, Judge Friedlander concurred, and Judge Crone authored a lengthy dissent.
You can read the full opinion at http://www.in.gov/judiciary/opinions/pdf/04141001jgb.pdf.
Mr. King is a senior associate and Ms. Davis is an associate at Frost Brown Todd in Indianapolis. Ms. Davis is a member of DTCI and Mr. King chairs its Product Liability Section. The opinions expressed in this article are those of the authors.