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November 13, 2012 Articles

'Hybrid Witnesses' and Federal Rule of Civil Procedure 26

By Andrea Mahady Price and Kristin L. Beckman

Treating physicians provide useful factual testimony about their diagnosis and treatment of plaintiffs alleging an illness or injury. Because of the supposed neutrality of treating physicians, juries may credit their testimony more than that of a so-called independent expert who has been retained by another party to examine and diagnose a plaintiff. But treating physicians are often accessible only to the plaintiff and, accordingly, sometimes more likely to discuss their testimony with plaintiff’s counsel.

Under the old Rule 26, however, treating physicians and many other part-fact/part-expert, or “hybrid” witnesses, had no disclosure requirements. The Civil Rules Advisory Committee for Federal Rule of Civil Procedure 26 recognized this inconsistency when it revised the rule’s reporting and disclosure requirements in 2010.

Rule 26 Disclosures Before and After 2010 Amendments
Before 2010, Rule 26’s disclosure requirements addressed only a single category of witnesses: “those 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.” See Fed. R. Civ. P. 26 (pre-2010). The rule then required those experts to provide a written report containing the “data or other information” they considered in forming their opinions. Pacificorp v. Nw. Pipeline GP, No. 10-00099, 2012 WL 2903976, at *34 (D. Or. July 16, 2012) (internal citations omitted).

The 2010 amendments to Rule 26 now require different disclosures for these “reporting witnesses” and established, for the first time, disclosure requirements for “non-reporting experts.” See Fed. R. Civ. P. 26. For those witnesses “retained or specially employed to provide expert testimony in the case,” parties must disclose the “facts or data” the witnesses considered in reaching their opinions, as opposed to the “data or other information” previously required. See Fed. R. Civ. P. 26 (a)(2)(B). Non-reporting experts now must disclose the subject matter on which the witness is expected to provide evidence and “a summary of the facts and opinions on which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).

Hybrid Fact-and-Expert Witnesses
Traditionally, treating physicians have been treated as fact witnesses and are not required to provide any expert report. "They are a species of percipient witness . . . not specially hired to provide expert testimony; rather, they are hired to treat the patient and may testify to and opine on what they saw and did without the necessity of the proponent of the testimony furnishing a written expert report.” Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 819 (9th Cir. 2011).

Once a treating physician renders and completes treatment, however, he or she may be provided with additional information by plaintiff’s counsel and asked to opine as to matters beyond his or her treatment of the plaintiff. In these instances, treating physicians become “hybrid” witnesses, that is, part fact witness, part expert. If their opinions go beyond the scope of a traditional treating physician, a court may require the physician to provide a report consistent with Rule 26(a)(2). See Goodman, 644 F.3d at 819 (applying the rule prospectively).

The distinguishing feature of an expert required to provide a report is that his or her opinion is based on information provided by others and not his or her function as a percipient witness to the events at issue. See In re Application of Rep. of Ecuador, 280 F.R.D. 506, 511(N.D. Cal. 2012).

What Communications Between Experts and Attorneys Are Protected?
The 2010 amendment to Rule 26 was initially proposed to address concerns stemming from the 1993 amended rules permitting broad discovery into reporting experts’ communications with attorneys. Although the former rule did not protect communications between counsel and a reporting expert witness, Rule 26 now explicitly protects “communications between the party’s attorney and any witness required to provide a

report . . . regardless of the form of the communications.” The rule provides as follows:

(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

Although the need to address protection for these traditional expert witness communications was well accepted, the Civil Rules Advisory Committee wrestled with whether to shield communications between counsel and hybrid fact/expert witnesses, as well. One problem with extending these protections to the hybrid witnesses was the difficulty of formulating a rule that would work for all the different categories of these witnesses.

The committee evaluated concerns specific to particular types of witnesses while debating disclosure requirements for non-reporting experts, finding “reasons to protect communications with some types of non-reporting experts, but not others.” United States v. Sierra Pacific, No. 09-2445, 2011 WL 2119078, at *6 (E.D. Cal. May 26, 2011). For example, some committee members emphasized that attorneys should be allowed to communicate freely with employee-experts who do not routinely give expert testimony. On the other hand, those same employee-experts typically have factual knowledge that is separate from their expert opinions, and they concomitantly carry the authority of a neutral observer of fact before a trier of fact. Furthermore, if all communications with employee-experts were protected, an attorney might abuse the rules by designating a former employee as an expert witness.

But a blanket rule protecting or allowing discovery into communications with hybrid witnesses presents a line-drawing problem that the committee was unwilling to tackle for the 2010 amendments. The Sierra Pacific court explained by way of example:

[I]f an employee engineer designed a product that was the subject of a product liability case, it would be difficult to separate the engineer’s sense impressions leading up to the design of the product with his expert opinions at trial, and to distinguish between attorney communications regarding the former from those regarding the latter.

Sierra Pacific,2011 WL 2119078, at *6 (internal citations omitted).

Ultimately, the committee concluded that “the time has not yet come to extend the protection for attorney expert communications beyond experts required to give an (a)(2)(B) report.” Minutes, Civil Rules Advisory Committee Meeting. A leading treatise offers the following explanation:

The advisory committee considered, but declined, to extend work-product protection to communications between counsel and a witness who is not retained or specially employed to provide expert testimony or whose duties do not regularly involve giving expert testimony, e.g., an employee with particular knowledge or expertise, a treating physician, or accident investigator.

167A Moore’s Federal Practice: Proposed Amendments to Federal Rules, Civil A § 1.03, at 14 (2012) (“The Committee did not want to protect communications by one party’s lawyer with treating physicians, accident investigators, and the like.”) (citing Minutes, Civil Rules Advisory Committee Meeting (Apr. 20–21, 2009)).

The new rule, while recognizing that hybrid fact-expert witnesses must be subject to some disclosure requirements, “differentiates between experts who are required to provide reports and experts who are not” in that it offers no protection for communications with those hybrid experts. See Sierra Pacific, 2011 WL 2119078, at *1. Thus, a treating physician who testifies about his or her treatment and observations of a plaintiff is afforded no protection by Rule 26 for his or her communications with counsel.

Post-2010 Amendment Case Law
In one of the few decisions interpreting these new provisions of post-2010 Rule 26, Sierra Pacific, the court analyzed the reasons for different treatment of reporting and non-reporting witnesses. There, thecourt allowed discovery of communications between counsel and a non-retained, hybrid (part fact, part expert) witness, “in order to prevent, or at any rate expose, attorney-caused bias.” Id. at *10. Although Sierra Pacific did not itself concern discovery from a treating physician, the court explained that discovery of attorney-witness communications is particularly important with respect to certain non-reporting witnesses, including specifically “treating physicians,” who are “testifying regarding their own personal knowledge of facts”:

[S]ome non-reporting witnesses, such as treating physicians and accident investigators, should be treated differently than reporting witnesses with respect to the discoverability of their communications with counsel. . . . These types of witnesses are hybrid fact and expert opinion witnesses. While it is desirable that any testifying expert’s opinion be untainted by attorneys’ opinions and theories, it is even more important that a witness who is testifying regarding his own personal knowledge of facts be unbiased.

Id. (citing Minutes, Civil Rules Advisory Committee Meeting (Apr. 20–21, 2009), at 14 (“The Committee did not want to protect communications by one party’s lawyer with treating physicians, accident investigators, and the like. An employee expert, moreover, may be an important fact witness.”)) (emphasis added); see also Pacificorp v. Nw. Pipeline GP, No. 10-00099, 2012 WL 2903976 (D. Or. July 16, 2012) (granting motion to compel discovery of communications “authored by, received by, or copied to [defendant’s] non-retained experts on topics about which they intend to testify, many of which involved [defendant’s] in-house and outside counsel”).

Notably, the Sierra Pacific court emphasized that, although the committee found “certain circumstances under which broad discovery should be allowed into a party attorney’s communications with a non-reporting employee expert witness,” “the committee did not intend that such communications with non-reporting expert witnesses be discoverable in all cases.” Thus, the committee decided that Rule 26 should remain silent on the subject of protection for communications between counsel and non-reporting expert witnesses, neither providing new protection “nor abrogating any existing protections for such communications.” Sierra Pacific,2011 WL 2119078, at *7.

The next time the Civil Rules Committee convenes, with presumably more comments on the desirability of protecting communications between “hybrid” witnesses and counsel, it may address disclosure of those communications again. Indeed, the courts will be required to determine the limits of preexisting work-product protection for these witnesses and will doubtless confront the same line-drawing problems the Rules Committee feared in determining where a hybrid witness’s fact testimony ends and expert opinions begin. For now, the 2010 amendments to Rule 26 holds the door open for discovery of communications with any treating physician not deemed a reporting expert. The committee stopped short of providing a broad-based privilege for “hybrid” witnesses, and the characterization of such witnesses by attorneys may end up inviting scrutiny—and unwelcomed discovery—in the future.

Keywords: litigation, mass tort, treating physician, reporting witness, discovery, fact witness, expert witness, disclosure

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