1 WO
2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Fernando Hernandez Richter, NO. CV-19-5513-PHX-DGC
9 Plaintiff, ORDER
10 v. 11 Christopher Romero, et al.,
12 Defendants.
13 14 15 The Court previously ruled that Plaintiff’s treating physician, Dr. Youssef, will be 16 limited to fact witness testimony in this case because Plaintiff failed to identify him as an 17 expert witness as required by Rule 26(a)(2)(A), and failed to disclosure his expert opinions under either Rule 26(a)(2)(B) or (C). Doc. 192 at 9. The Court held that “Plaintiff is 18 precluded from using Dr. Youssef for anything other than simple fact testimony.” Id. The 19 Court recognized “that the distinction between fact and expert testimony is particularly 20 difficult when a treating physician testifies about treatment provided to a plaintiff,” but 21 pledged to “do its best to maintain this distinction and limit the testimony of Dr. Youssef to 22 facts,” noting that “Defendants may object if they believe Dr. Youssef is straying into expert 23 opinions.” Id. 24 Today, Plaintiff filed a memorandum stating that he intends to have Dr. Youssef 25 testify about “the subject matter of [his] treatment as disclosed in the medical records and 26 to opinions formed in the course of the treatment provided by [him].” Doc. 224 at 2. In 27 support of this scope of examination, Plaintiff cites several cases. Plaintiff asserts that the 28 1 only testimony Dr. Youssef may not give is “expert testimony beyond the scope of the 2 treatment rendered.” Id. at 3. 3 The Court files this order to apprise Plaintiff that it does not agree with the scope of 4 testimony he proposes. As a member of the Advisory Committee on the Federal Rules of 5 Civil Procedure, the undersigned judge chaired the subcommittee that drafted the 2010 6 amendments to Rule 26(a)(2). The clear intent of those amendments was as follows: A treating physician could testify about opinions formed during the course of treatment only 7 if the party presenting the physician identified her as an expert under Rule 26(a)(2)(A) and 8 produced a timely disclosure statement under Rule 26(a)(2)(C). The physician could 9 present opinions that go beyond the course of treatment only if she was identified under 10 Rule 26(a)(2)(A) and produced a more detailed expert report under Rule 26(a)(2)(B). In 11 either event, Rule 26(a)(2) disclosures are required for treating physicians who will testify 12 about opinions covered by Rule 702. 13 This point was made clear in the advisory committee notes to the 2010 amendments: 14 A witness who is not required to provide a report under Rule 26(a)(2)(B) may 15 both testify as a fact witness and also provide expert testimony under 16 Evidence Rule 702, 703, or 705. Frequent examples include physicians or other health care professionals and employees of a party who do not 17 regularly provide expert testimony. Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure required under Rule 18 26(a)(2)(C). 19 Fed. R. Civ. P. 26 (2010 Advisory Committee Note) (emphasis added). 20 These requirements are explained clearly by Professor Gensler: 21 22 In summary, the disclosures that must be made for a treating physician depend on the nature of the testimony he or she will give. Unless the treating 23 physician is going to be limited to testifying about facts in a lay person 24 capacity, the physician must be disclosed as an expert and must provide either the summary disclosures or an expert report. Whether the treating 25 physician must file a written report or is subject only to summary disclosures depends on the role of the expert. If the treating physician’s expert opinions 26 stay within the scope of treatment and diagnosis, then the physician would 27 not be considered “retained” to provide expert testimony and only summary disclosures would be needed. But if a treating physician is going to offer 28 1 opinions formed outside the course of treatment and diagnosis, then as to those further opinions the physician is being used in a “retained expert” role 2 and the Rule 26(a)(2)(B)’s report requirement will apply to the extent of that 3 further testimony. 4 S. Gensler & L Mulligan, 1 Federal Rules of Civil Procedure, Rules and Commentary, 5 Rule 26 (2024) (footnotes citing cases omitted; emphasis added). 6 The Case Management Order in this case made the same point: 7 Disclosures under Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure 8 must include the identities of treating physicians and other witnesses who will provide testimony under Rules 702, 703, or 705 of the Federal Rules of 9 Evidence, but who are not required to provide expert reports under Rule 10 26(a)(2)(B). Rule 26(a)(2)(C) disclosures are required for such witnesses on the dates set forth above. Rule 26(a)(2)(C) disclosures must identify not 11 only the subjects on which the witnesses will testify, but must also provide a 12 summary of the facts and opinions to which the expert will testify. The summary, although not as detailed as a Rule 26(a)(2)(B) report, must be 13 sufficiently detailed to provide fair notice of what the expert will say at trial. 14 Doc. 28, ¶ 5(e) (emphasis added). 15 A footnote to this provision clarified the difference between treating physicians for 16 whom simpler Rule 26(a)(2)(C) summaries are required, and those who must produce more 17 detailed Rule 26(a)(2)(B) expert reports: 18 A “treating physician is only exempt from Rule 26(a)(2)(B)’s written report 19 requirement to the extent that his opinions were formed during the course of treatment.” Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 20 826 (9th Cir. 2011). Thus, for opinions formed outside the course of 21 treatment, Rule 26(a)(2)(B) written reports are required. Id. For opinions formed during the course of treatment, Rule 26(a)(2)(C) disclosures will 22 suffice. 23 Id. n.2 (emphasis added). 24 In sum, it has been clear from the outset of this case – and from December 1, 2010, 25 when the 2010 amendments to Rule 26(a)(2) became effective – that treating physicians 26 who are going to testify about opinions formed during the course treatment must be 27 disclosed under Rule 26(a)(A), and their opinions must be disclosed under Rule 26(a)(2)(C). 28 1 Having failed to make either disclosure, Plaintiff may not elicit such opinions from Dr. 2 Youssef. 3 The cases Plaintiff cites to the contrary are, respectfully, incorrect. To the extent 4 they support Plaintiff’s proposal, they misunderstand the 2010 amendments and the 5 difference between treating physicians for whom 26(a)(2)(C) summaries are required and 6 those who must produce Rule 26(a)(2)(B) expert reports. See, e.g., Hickman v. State Farm Mut. Auto. Ins. Co., No. 3:10-cv-00121-TMB, 2011 U.S. Dist. LEXIS 164912, at *10-12 7 (D. Alaska Oct. 24, 2011); Halford v. Hartford Fin. Servs. Grp., No. 2:15-cv-00716-JAD- 8 PAL, 2016 U.S. Dist. LEXIS 67268, at *13-14 (D. Nev. May 20, 2016). 9 Other cases cited by Plaintiff address Rule 701 testimony by treating physicians and 10 do not consider the 2010 amendments or their disclosure requirements. See Haro v. GGP- 11 Tucson Mall LLC, No. CV-17-00285-TUC-JAS, 2019 WL 369269, at *4 (D. Ariz. Jan. 30, 12 2019); Montoya v. Sheldon, 286 F.R.D. 602, 607 (D.N.M. 2012). The Court notes, 13 however, that Rule 701(c) makes clear that treating doctors may not use Rule 701 to present 14 opinions that are covered by Rule 702.
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1 WO
2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Fernando Hernandez Richter, NO. CV-19-5513-PHX-DGC
9 Plaintiff, ORDER
10 v. 11 Christopher Romero, et al.,
12 Defendants.
13 14 15 The Court previously ruled that Plaintiff’s treating physician, Dr. Youssef, will be 16 limited to fact witness testimony in this case because Plaintiff failed to identify him as an 17 expert witness as required by Rule 26(a)(2)(A), and failed to disclosure his expert opinions under either Rule 26(a)(2)(B) or (C). Doc. 192 at 9. The Court held that “Plaintiff is 18 precluded from using Dr. Youssef for anything other than simple fact testimony.” Id. The 19 Court recognized “that the distinction between fact and expert testimony is particularly 20 difficult when a treating physician testifies about treatment provided to a plaintiff,” but 21 pledged to “do its best to maintain this distinction and limit the testimony of Dr. Youssef to 22 facts,” noting that “Defendants may object if they believe Dr. Youssef is straying into expert 23 opinions.” Id. 24 Today, Plaintiff filed a memorandum stating that he intends to have Dr. Youssef 25 testify about “the subject matter of [his] treatment as disclosed in the medical records and 26 to opinions formed in the course of the treatment provided by [him].” Doc. 224 at 2. In 27 support of this scope of examination, Plaintiff cites several cases. Plaintiff asserts that the 28 1 only testimony Dr. Youssef may not give is “expert testimony beyond the scope of the 2 treatment rendered.” Id. at 3. 3 The Court files this order to apprise Plaintiff that it does not agree with the scope of 4 testimony he proposes. As a member of the Advisory Committee on the Federal Rules of 5 Civil Procedure, the undersigned judge chaired the subcommittee that drafted the 2010 6 amendments to Rule 26(a)(2). The clear intent of those amendments was as follows: A treating physician could testify about opinions formed during the course of treatment only 7 if the party presenting the physician identified her as an expert under Rule 26(a)(2)(A) and 8 produced a timely disclosure statement under Rule 26(a)(2)(C). The physician could 9 present opinions that go beyond the course of treatment only if she was identified under 10 Rule 26(a)(2)(A) and produced a more detailed expert report under Rule 26(a)(2)(B). In 11 either event, Rule 26(a)(2) disclosures are required for treating physicians who will testify 12 about opinions covered by Rule 702. 13 This point was made clear in the advisory committee notes to the 2010 amendments: 14 A witness who is not required to provide a report under Rule 26(a)(2)(B) may 15 both testify as a fact witness and also provide expert testimony under 16 Evidence Rule 702, 703, or 705. Frequent examples include physicians or other health care professionals and employees of a party who do not 17 regularly provide expert testimony. Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure required under Rule 18 26(a)(2)(C). 19 Fed. R. Civ. P. 26 (2010 Advisory Committee Note) (emphasis added). 20 These requirements are explained clearly by Professor Gensler: 21 22 In summary, the disclosures that must be made for a treating physician depend on the nature of the testimony he or she will give. Unless the treating 23 physician is going to be limited to testifying about facts in a lay person 24 capacity, the physician must be disclosed as an expert and must provide either the summary disclosures or an expert report. Whether the treating 25 physician must file a written report or is subject only to summary disclosures depends on the role of the expert. If the treating physician’s expert opinions 26 stay within the scope of treatment and diagnosis, then the physician would 27 not be considered “retained” to provide expert testimony and only summary disclosures would be needed. But if a treating physician is going to offer 28 1 opinions formed outside the course of treatment and diagnosis, then as to those further opinions the physician is being used in a “retained expert” role 2 and the Rule 26(a)(2)(B)’s report requirement will apply to the extent of that 3 further testimony. 4 S. Gensler & L Mulligan, 1 Federal Rules of Civil Procedure, Rules and Commentary, 5 Rule 26 (2024) (footnotes citing cases omitted; emphasis added). 6 The Case Management Order in this case made the same point: 7 Disclosures under Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure 8 must include the identities of treating physicians and other witnesses who will provide testimony under Rules 702, 703, or 705 of the Federal Rules of 9 Evidence, but who are not required to provide expert reports under Rule 10 26(a)(2)(B). Rule 26(a)(2)(C) disclosures are required for such witnesses on the dates set forth above. Rule 26(a)(2)(C) disclosures must identify not 11 only the subjects on which the witnesses will testify, but must also provide a 12 summary of the facts and opinions to which the expert will testify. The summary, although not as detailed as a Rule 26(a)(2)(B) report, must be 13 sufficiently detailed to provide fair notice of what the expert will say at trial. 14 Doc. 28, ¶ 5(e) (emphasis added). 15 A footnote to this provision clarified the difference between treating physicians for 16 whom simpler Rule 26(a)(2)(C) summaries are required, and those who must produce more 17 detailed Rule 26(a)(2)(B) expert reports: 18 A “treating physician is only exempt from Rule 26(a)(2)(B)’s written report 19 requirement to the extent that his opinions were formed during the course of treatment.” Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 20 826 (9th Cir. 2011). Thus, for opinions formed outside the course of 21 treatment, Rule 26(a)(2)(B) written reports are required. Id. For opinions formed during the course of treatment, Rule 26(a)(2)(C) disclosures will 22 suffice. 23 Id. n.2 (emphasis added). 24 In sum, it has been clear from the outset of this case – and from December 1, 2010, 25 when the 2010 amendments to Rule 26(a)(2) became effective – that treating physicians 26 who are going to testify about opinions formed during the course treatment must be 27 disclosed under Rule 26(a)(A), and their opinions must be disclosed under Rule 26(a)(2)(C). 28 1 Having failed to make either disclosure, Plaintiff may not elicit such opinions from Dr. 2 Youssef. 3 The cases Plaintiff cites to the contrary are, respectfully, incorrect. To the extent 4 they support Plaintiff’s proposal, they misunderstand the 2010 amendments and the 5 difference between treating physicians for whom 26(a)(2)(C) summaries are required and 6 those who must produce Rule 26(a)(2)(B) expert reports. See, e.g., Hickman v. State Farm Mut. Auto. Ins. Co., No. 3:10-cv-00121-TMB, 2011 U.S. Dist. LEXIS 164912, at *10-12 7 (D. Alaska Oct. 24, 2011); Halford v. Hartford Fin. Servs. Grp., No. 2:15-cv-00716-JAD- 8 PAL, 2016 U.S. Dist. LEXIS 67268, at *13-14 (D. Nev. May 20, 2016). 9 Other cases cited by Plaintiff address Rule 701 testimony by treating physicians and 10 do not consider the 2010 amendments or their disclosure requirements. See Haro v. GGP- 11 Tucson Mall LLC, No. CV-17-00285-TUC-JAS, 2019 WL 369269, at *4 (D. Ariz. Jan. 30, 12 2019); Montoya v. Sheldon, 286 F.R.D. 602, 607 (D.N.M. 2012). The Court notes, 13 however, that Rule 701(c) makes clear that treating doctors may not use Rule 701 to present 14 opinions that are covered by Rule 702. Those opinions must clear the threshold of Rule 702 15 and be disclosed under Rule 26(a)(2). 16 The final case Plaintiff cites, Blameuser v. Hasenfang, 345 F. App’x 184 (7th Cir. 17 2009), predates the 2010 amendments. 18 Because he failed to provide any disclosures under Rule 26(a)(2)(A)-(C), Plaintiff is 19 precluded from presenting any opinions by Dr. Youssef that are based on his knowledge, 20 skill, experience, training, or education. See Doc. 192; Fed. R. Evid 702. This includes 21 opinions formed during the course of treating Plaintiff, as made clear by the notes to the 22 2010 amendments and the Case Management Order in this case. 23 The Court therefore reiterates that “Plaintiff is precluded from using Dr. Youssef for 24 anything other than simple fact testimony.” Doc. 192 at 9. The Court continues to 25 recognize that the distinction between fact and expert testimony is difficult when a treating 26 physician testifies about treatment provided to a plaintiff, but again pledges to do its best to 27 maintain this distinction and limit the testimony of Dr. Youssef to facts. Defendants may 28 object if they believe Dr. Youssef is straying into Rule 702 opinions. 1 Dated this 28th day of January, 2024. 2
DavidG.Campbell 5 Senior United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28