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September 21, 2016 Articles

Treating Physicians and Causation: How Far Can They Go?

By Andrea Mahady Price

In mass tort litigation, the plaintiff’s treating physician is a critically important witness. Experienced trial lawyers know that juries listen to plaintiffs’ treating physicians, often more closely than to paid experts or even to the plaintiffs themselves. For this reason, a treating physician’s testimony about causation can be decisive. Yet, the rule governing advanced disclosure of treaters’ opinions, Federal Rule of Civil Procedure 26, has never neatly defined when or how much must be disclosed about these witnesses.

Courts and litigants have struggled to draw the line between “treating” physicians, who are not required to submit detailed disclosures under Rule 26, and experts “retained and specially employed” to provide causation opinions. While treaters are rarely paid and thus “employed” to testify on behalf of their patients, arriving at an opinion on causation of any injury is not necessarily part of a physician’s ordinary treatment and observation of a patient.

Treating Physician Expert Disclosure Pre-2010
It has never been entirely clear what disclosures Rule 26 requires of treating physicians. Since 1993, Rule 26(a)(2)(B) requires any witness who is “retained or specially employed to provide expert testimony in the case” to author a written expert report setting out the witness’s opinions and the bases therefor. The rule doesn’t define “retained or specially employed,” though most courts have rejected arguments that this language means that a witness must have been paid.

The advisory committee notes to the 1993 amendments to Rule 26, which provide that “[a] treating physician . . . can be deposed or called to testify at trial without any requirement for a written report,” likewise have not been deemed to excuse treating physicians from providing a Rule 26 report under all circumstances. Fed R. Civ. P. 26 advisory committee notes to 1993 amendments.

The majority of courts have held that a treating physician has not been “retained or specially employed” and may testify about his or her treatment, “based on what he or she learned through actual treatment and from the plaintiff’s records up to and including that treatment” without producing a written expert disclosure. Fielden v. CSX Transp., Inc., 482 F.3d 866, 871 (6th Cir. 2007); see also Brown v. Best Foods, A Div. of CPC Int’l, Inc., 169 F.R.D. 385, 389 (N.D. Ala. 1996) (treating physician may testify as a non-retained expert witness—and therefore need not provide an expert report—if the testimony is confined to “facts disclosed during care and treatment of the patient”); Sullivan v. Glock, Inc., 175 F.R.D. 497, 500–502 (D. Md. 1997) (“To the extent that the source of the facts which form the basis for a treating physician’s opinions derive from information learned during the actual treatment of the patient—as opposed to being subsequently supplied by an attorney involved in litigating a case involving the condition or injury—then no Rule 26(a)(2)(B) statement should be required.”); In re Denture Cream Prods. Liab. Litig., No. 09-2051, 2012 WL 5199597 (S.D. Fla. Oct. 22, 2012) (holding that when a treating physician testifies regarding opinions “formed and based upon observations made during the course of treatment, the treating physician need not produce a Rule 26(a)(2)(b) report”) (internal quotations omitted). The Fielden court described this kind of testimony as the “permissible core on issues pertaining to treatment,” a formulation many other courts have followed.

Causation complicates the analysis of what testimony falls within Fielden’s “permissible core.” The Tenth Circuit has arguably taken the broadest position, concluding that a treating physician is not “limited to what is listed in his medical records” as a foundation for his testimony, albeit in a brief opinion with meager factual detail. See St. Vincent v. Werner Enters., Inc., 267 F.R.D. 344, 346 (D. Mont. 2010). In Werner, the court sustained the defendants’ objections to a treater’s consideration of photographs of the accident scene and a car involved, but it allowed his opinion on causation and the plaintiff’s prognosis because “[t]he relevant inquiry for a treating physician is not whether the testimony goes beyond his or her literal medical records. The relevant inquiry is whether the doctor acquires his or her [personal] knowledge through his or her ‘treatment’ of the patient.” Id. (internal citation omitted). The court concluded that

[a] treating physician’s opinion on matters such as causation, future treatment, extent of disability and the like are part of the ordinary care of a patient. If properly based on personal knowledge, history, treatment of the patient, and facts of his or her examination and diagnosis, then the treating physician may give an opinion as to the cause of the injury or degree of the injury in the future. This is what doctors do: what is the problem; what caused the problem; how is the problem fixed; what does it mean to the patient.

Werner, 267 F.R.D. at 345. (emphasis added)

Other courts take a context-specific view of whether a treater’s causation testimony is expert testimony under Rule 26, examining factors such as the following:

(1) whether the physician reached his conclusion at the time of treatment; (2) whether the opposing party would be surprised by the testimony; (3) whether the condition at issue leaves room for debate as to the specific ailment and its sources; (4) whether the physician relied upon ordinary medical training in drawing his conclusion; and (5) whether the physician will rely on tests, documents, books, videos, or other sources not relied upon during treatment.

Hinkle v. Ford Motor Co., No. 11-24, 2013 WL 1992834 (E.D. Ky. May 13, 2013) (quoting Gaspar v. Dicks, No. 08-13707, 2011 U.S. Dist. LEXIS 136571, at *11 (E.D. Mich. Nov. 29, 2011)).

In a case of first impression, the Ninth Circuit adopted the holding of the Sixth Circuit in Fielden with respect to a treater’s causation opinion. There, the plaintiff planned to present testimony from her treaters on the cause of a fall that injured her cervical spine and led to psychiatric problems, including depression, anxiety, and stress. Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 819 (9th Cir. 2011). In this case, the plaintiff’s treating doctors not only rendered treatment, but after the treatment was concluded, these same doctors were provided with additional information by the plaintiff’s counsel and were asked to opine on matters outside the scope of the treatment they rendered. Id. The Ninth Circuit rejected the plaintiff’s argument that Rule 26 “does not require a written report before a treating physician testifies to virtually anything,” agreeing instead with the defendant’s argument that “written reports may not always be required of treating physicians, but . . . this exception to the written report requirement applies only when the treating physician formed his opinion during the course of treatment. 824–25 (emphasis original). The Ninth Circuit agreed, holding that the plaintiff’s treating physician’s testimony on causation must be disclosed in a Rule 26(b)(2) report because it was based on materials provided by the plaintiff’s attorneys after treatment had ended. Id. at 826.

Most courts agree with Fielden and Goodman, holding that a treating physician who has prepared his or her opinions in anticipation of litigation or relies on sources other than those used in treatment acts more like a retained expert and must comply with Rule 26(a)(2)(B). See, e.g., Wreath v. United States, 161 F.R.D. 448, 450 (D. Kan. 1995) (observing that a treating physician “requested to review medical records of another health care provider in order to render opinion testimony concerning the appropriateness of the care and treatment of that provider” would be required to comply with the report requirement of Rule 26(a)(2)(B)). Courts also consider the fairness of requiring litigants to proceed without the benefit of an expert report when determining whether to require a treating physician to provide an expert report. See, e.g., Watson v. United States, 485 F.3d 1100, 1107 (10th Cir. 2007) (noting that the rule makers “seemed concerned, for example, about the resources that might be diverted from patient care if treating physicians were required to issue expert reports as a precondition to testifying,” and observing that the Federal Rules “supply other mechanisms, besides formal reports, for extracting the views of an expert witness . . . ; sandbagging is not necessarily inevitable”); Fielden, 482 F.3d at 871 (noting that defendants were not surprised by the scope of the treating physician’s testimony). Some courts are more likely to require a treating physician to provide an expert report if the condition at issue leaves room for debate about the specific ailment and its sources. See Gonzalez v. Exec. Airlines, 236 F.R.D. 73, 81 (D.P.R. 2006) (discussing post-traumatic stress disorder).

The Sixth Circuit and other courts, moreover, have expressed concern with allowing treating physicians to testify without providing expert reports, as “this would permit circumvention of the policies underlying the expert report requirement. A party might attempt to avoid Rule 26(a)(2)(B)’s requirement by having a treating physician testify on an issue instead of having an expert do so.” Fielden, 482 F. 3d at 870, as amended on denial of reh’g and reh’g en banc (July 2, 2007); see also Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729, 734–35 (7th Cir. 2010) (affirming grant of summary judgment where no evidence in the record suggested that plaintiff’s doctors considered or determined the cause of his injuries during the course of treatment).

The Eighth Circuit has gone further, requiring disclosure of a written report any time a party seeks to have a treating physician testify as to the causation of a medical condition, as opposed to merely the existence of the condition. Brooks v. Union Pac. R.R. Co., 620 F.3d 896, 900 (8th Cir. 2010). In Brooks, the plaintiff sought to introduce testimony from his treating physician that his claimed injury was caused by an accident at work, but the plaintiff had failed to provide the defendants with any expert disclosures at all under Rule 26. Id. at 899. After giving the plaintiff an opportunity to supplement his disclosures, the Eighth Circuit ultimately granted summary judgment, finding that that plaintiff had failed to produce admissible evidence of causation. “A treating physician’s expert opinion on causation is subject to the same standards of scientific reliability that govern the expert opinions of physicians hired solely for purposes of litigation.” Id. (citations omitted).

Treating Physician Expert Disclosure Post-2010
In an effort to address this predicament, the Supreme Court amended Rule 26 in 2010, specifically addressing treating physician disclosure requirements. The Court added Rule 26(a)(2)(C), requiring witnesses “not required to provide a written report” to make a disclosure of “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” The advisory committee explained that “[t]his amendment resolves a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement. An (a)(2)(B) report is required only from an expert described in (a)(2)(B).” Fed. R. Civ. P. 26(a)(2)(C) advisory committee notes to 2010 amendment. The committee cautioned that “[t]his disclosure is considerably less extensive than the report required by Rule 26(a)(2)(B)” and that “[f]requent examples [of a witness subject to this requirement] include physicians or other health care professionals and employees of a party who do not regularly provide expert testimony.” Id. Finally, the committee directly warned courts to “take care against requiring undue detail” from treaters, as “these witnesses have not been specially retained and may not be as responsive to counsel as those who have.” Id.

Thus, after 2010, it was clear that parties must submit a summary report under Rule 26(a)(2)(C) for treating physicians whom they wished to call. But, while the language of the rule and the advisory committee notes strongly suggest that treating physicians are required to disclose only under (a)(2)(C), it still remains a challenge to predict when a treating physician may be required to produce a more detailed report. In particular, some courts have expressed concern that the Rule 26(a)(2)(C) disclosure does not adequately disclose the testimony of many treaters:

Notwithstanding the 2010 Amendments to Rule 26(a)(2) creating the less detailed report, there is no specific reference nor guidance as to how the various opinions from a treating physician should be captured. For treating physicians, opinions can be readily gleaned from the medical reports that generally encompass and expose the course of treatment and, thus, an abbreviated report makes sense. Generally speaking the parameters of that testimony are limited to the care and treatment of the patient. But where the doctor is rendering an opinion based upon a reasonable degree of medical certainty, it would seem that the abbreviated report falls short of adequate disclosure. When absent from the medical records, an inventive litigant could conceal a host of very critical opinions or analyses that require the accompanying standard of a reasonable degree of medical certainty, which would not be cured by the less detailed report. Because permanency is rarely disclosed in medical records, an opposing party could be blindsided by an underdevelopment of the disclosure and the scientific basis upon which it rests. And precisely for this reason, it is the standing order of this Court to require the much more detailed report so that all facts and opinions are known to the parties.

Bartnick v. CSX Transp., Inc., No. 1:11-1120, 2013 WL 1113991, at *2 (N.D.N.Y. Mar. 18, 2013) (citing Robinson v. Suffolk Cty. Police Dep’t, 2011 WL 4916709, at *1 (E.D.N.Y. Oct. 17, 2011) (requiring a Rule 26(a)(2)(A) & (B) report where the treating physician may be testifying as to causation)); Lamere v. N.Y. State Office of the Aging, 223 F.R.D. 85, 89 (N.D.N.Y. 2004) (“It is indeed certain that a treating physician who has not complied with the reporting requirement of Rule 26(a)(2)(B) should not be allowed to render opinions outside the course of treatment and beyond the reasonable reading of the medical records.”).

The Northern District of Georgia grappled early with whether new subsection (C) disclosures took the place of subsection (B) disclosures that had previously been required for treaters planning to testify on causation. There, the plaintiff argued that his treating physicians could not be deemed subsection (B) witnesses as they were not “retained or specially employed” to testify in the case; thus, only a subsection (C) disclosure was required. Kondragunta v. Ace Doran Hauling & Rigging Co., No. 11-1094, 2013 WL 1189493, at *9 (N.D. Ga. Mar. 21, 2013). The court rejected this argument, relying on a review of (admittedly scarce) post-2010 case law and determined that the few decisions on the matter had “adhere[d] to traditional tests for determining when a treating physician is considered to be a full-blown expert and when he is considered to be more akin to a percipient witness with professional expertise, like the experts envisioned in the new Subsection C.” Id. at *10.

Critically, the Kondragunta court held that the label of “treating physician” is irrelevant; instead, the determination turns on “the substance of the physician’s testimony.” Id. Notwithstanding the advisory committee notes advising that treating physicians do not have to provide a Rule 26(a)(2)(B) report, the court concluded that prior case law had not been abrogated because “the trigger for Subsection B status—the phrase ‘retained or specially employed’—is found in both the amended and unamended rule, and caselaw that had interpreted that phrase, even before the amendment, is more persuasive to the Court than is the Advisory Committee Notes’ listing of an example.” Id. The court agreed with the Fielden and pre-2010 decisions holding that a physician offered to provide causation testimony might do so without submitting an expert report in accordance with Rule 26(a)(2) so long as the causation opinion was “formed and based on observations made during the course of treatment.” Id at *12. If, however, “the physician’s opinion was based on facts gathered outside the course of treatment, or if the physician’s testimony will involve the use of hypotheticals, then a full subsection B report will be required.” Id.

Other courts to consider the matter have followed suit. In a recent medical device case, the Eastern District of Michigan confronted a similar issue, in the form of a treating surgeon who planned to testify that the biological mesh he had used in the plaintiff was defective. This opinion went beyond mere causation, to an opinion that the materials used in the device were defective and ultimately caused the plaintiff injury. Avendt v. Covidien Inc., No. 11-15538, 2016 WL 1566890 (E.D. Mich. Apr. 19, 2016). The court discussed the 2010 amendments in determining whether the treater was required to file a full expert report, concluding, like the Kondragunta court, that “in adding the expert disclosure provision in 26(a)(2)(C), the drafters did not intend to absolve all treating physicians, simply by virtue of their status as treating physicians, of the obligation of filing an expert report under Rule 26(a)(2)(B).” Id. at *7 (emphasis original). The court observed:

As was the case before the 2010 Amendments, if a treating physician is going to offer expert testimony that goes beyond the diagnosis and treatment of the patient and purports to opine on causation that was not determined as part of the treating relationship, that treating physician must still file a full blown expert report under 26(a)(2)(B).

Id.; see also Call v. City of Riverside, No. 3:13-133, 2014 WL 2048194, at *2 (S.D. Ohio May 19, 2014); Coleman v. Am. Family Mut. Ins. Co., 274 F.R.D. 641, 645 (N.D. Ind. 2011); In re Denture Cream Prods. Liab. Litig., No. 09-2051, 2012 WL 5199597, at *4 (S.D. Fla. Oct. 22, 2012) (analyzing the 2010 amendment and holding that “when a treating physician testifies regarding opinions formed and based upon observations made during the course of treatment, the treating physician need not produce a Rule 26(a)(2)(B) report. By contrast, treating physicians offering opinions beyond those arising from treatment are experts from whom full Rule 26(a)(2)(B) reports are required.”) (citations omitted); Walti v. Toys R Us, No. 10-2116, 2011 WL 3876907, at *6 (N.D. Ill. Aug. 31, 2011) (observing that, even after the 2010 amendments, “a treating physician who provides an expert opinion regarding causation is required to provide an expert report pursuant to Rule 26(a)(2)(B) if that opinion was not previously determined during the course of treatment”); but see In re C.R. Bard, Inc., 948 F. Supp. 2d 589, 616 (S.D. W. Va. 2013), on reconsideration in part (June 14, 2013) (holding that, although plaintiffs’ treating physicians might offer opinions outside the course of treatment, including testimony about the design of the defendants’ products, it was harmless error not to have provided 26(a)(2)(B) expert reports and the physicians would be permitted to testify on these topics at trial).

Courts are most likely to require nothing more than a Rule 26(a)(2)(C) report when a treating physician’s opinion rests only on medical records. However, where the doctor seeks to render an opinion based on facts, experiences, or observations not apparent from, or not adequately disclosed in, the medical records, courts worry that the subsection (C) disclosure may not fully disclose the expert’s opinion and the scientific basis on which the opinion rests, prejudicing an opposing party who may be unable to test sufficiently the expert’s opinion during depositions and suffer unfairly from this handicap at trial. See In re World Trade Ctr. Lower Manhattan Disaster Site Litig., No. 06-CV-1520, 2014 WL 5757713, at *5 (S.D.N.Y. Nov. 5, 2014) (requiring plaintiffs’ treating physicians to file expert reports under 26(a)(2)(B) because their causation opinions “that the World Trade Center dust caused the Plaintiffs’ injuries will necessarily rely upon information developed through the Mt. Sinai WTC Program and other information and expertise that falls far outside the scope of an individual plaintiff’s treatment”); see also Laslovich v. State Farm Fire & Cas. Co., 307 F.R.D. 533, 536 (D. Mont. 2015) (noting that expert reports under 26(a)(2)(B) are required, and 26(a)(2)(C) disclosures are insufficient, for treating physicians who offer opinions that go beyond the scope of treatment); Blakely v. Safeco Ins. Co., No. 13-cv-796, 2014 WL 1118071, at *2–3 (M.D. Fla. Mar. 20, 2014) (observing that the label of “treating physician” is irrelevant in determining whether a Rule 26(a)(2)(B) report is required and holding that a “physician who supplies an opinion procured directly from treatment is not subject to the expert witness disclosure requirements in Rule 26(a)(2)(B) . . . [b]ut if a health care professional is asked to give any additional opinions, beyond those procured directly from treatment, then for those additional opinions to be admissible, Plaintiff must first provide the full written disclosures required by Rule 26(a)(2)(B)”).

The 2010 amendments to Rule 26 were ostensibly made to clarify the scope of treating physician disclosures. With respect to treaters’ ordinary opinions and observations, formed during treatment of plaintiffs, the new Rule 26(a)(2)(C) has been helpful and accepted by the courts. However, when treaters’ opinions go beyond what may be reasonable gathered from a plaintiff’s medical records, the treaters, and their patients, should be prepared to provide a full expert report under Rule 26(a)(2)(B).

Keywords: litigation, mass torts, treating physician, causation, summary report, Federal Rule of Civil Procedure 26(a)(2)(C), 2010 amendment

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