Academic journal article The Review of Litigation

Doctoring the Testimony: Treating Physicians, Rule 26, and the Challenges of Causation Testimony

Academic journal article The Review of Litigation

Doctoring the Testimony: Treating Physicians, Rule 26, and the Challenges of Causation Testimony

Article excerpt

I. Introduction 250

II. Treating Physicians are Expert Witnesses 254

III. Disclosure of Treating Physician Testimony Under Rule 26 262

A. Treating Physicians Distinguished From Retained Physicians 264

B. Written Reports from Treating Physicians 271

1. Opinions Formed During Treatment 272

2. Opinions Not Formed During Treatment 278

3. Materials Not Reviewed During Treatment 279

C. Summary Disclosure of Treating Physician Testimony 282

1. Post-Amendment Decisions Regarding Scope of Treating Physician Testimony 285

2. Necessary Components of Summary Disclosures 288

3. Continuing Issues with Summary Disclosures and Proposed Amendment to Rule 26(a)(2)(c) 292

IV. DaubertChallenges to Treating Physician Testimony on Causation 297

A. Is the Physician Qualified to Give an Opinion on Causation? 298

B. Is the Physician 's Methodology Sufficiently Reliable? 301

1. Testimony From Treating Physicians is Based on Specialized, Not Scientific, Knowledge 303

2. Differential Etiology in Determining Causation 309

C. Will the Testimony Assist the Trier of Fact? 318

D. Issues with Causation Testimony by Treating Physicians 319

V. Conclusion 325

APPENDIX A 328

APPENDIX B 329

APPENDIX C 331

Introduction

The federal courtroom has been overrun by experts.1 Medical professionals may be the most common expert witnesses at trial; a survey of federal judges indicated that medical and mental health witnesses constitute more than 40% of the experts who testified at trial.2 Medical testimony in the courtroom exists in an adversarial setting in which each party seeks to present its strongest case, which invariably leads to conflicts between experts representing both sides. Treating physicians are often less-thanwilling participants in the fray.4

For years, there has been confusion about the role and proper scope of treating physicians' testimony at trial and what disclosures must be made about their testimony during discovery. Courts have had difficulty in determining whether treating physicians are expert witnesses or lay witnesses when they testify about their care and treatment of a patient.5 Courts have also struggled to distinguish treating physicians from physicians "retained or specially employed to provide expert testimony in the case," and to determine when treating physicians are required to prepare a Rule 26 expert report.6 In an attempt to resolve this issue, Federal Rule of Civil Procedure 26 was amended in 2010 to provide that expert witnesses not retained or specially employed by a party are not required to provide a written report, but the party calling them is required to state the subject matter of their testimony and provide a summary of the facts or opinions to which the witnesses are expected to testify.7 The new Rule 26(a)(2)(C) fails to delineate the proper scope of testimony from treating physicians subject to the summary disclosure requirement and, three years into the implementation of the new rule, courts have already reached divergent results on when summary disclosure of treating physician testimony is appropriate.*

There is also debate over the propriety of treating physicians testifying on matters outside the immediate scope of their course of treatment, such as causation.9 Expert testimony is tightly controlled in the courtroom, pursuant to the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.10 and Federal Rule of Evidence 702.11 Under these standards, judges must serve as gatekeepers that keep scientific and other expert testimony that is not reliable and relevant out of the courtroom.1 Courts fear that jurors may be overwhelmed by complex expert testimony when presented by experts with impressive credentials, and the the primary purpose of the court's gatekeeping function "is to protect juries from being bamboozled by technical evidence of dubious merit. …

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