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Richard v. Hinshaw

United States District Court, Tenth Circuit

December 17, 2013

RONELL RICHARD, Plaintiff,
v.
ROBERT HINSHAW, et al., Defendants.

MEMORANDUM AND ORDER

MONTI L. BELOT, District Judge.

Before the court are the following:

1. Plaintiff's Motion to Prohibit Defendants' Expert Witness Testimony (Doc. 429); and
2. Defendants' Response (Doc. 453).
(No Reply Brief was filed.)

I. Summary.

Plaintiff moves to exclude testimony from three individuals listed by defendants as non-retained experts: Dr. R. Kevin Bryant, Dr. Katherine Grimsley, and Dr. Laurie Coyner. These doctors each provided medical treatment to plaintiff's decedent, Edgar Richard, Jr. Plaintiff argues their testimony should be precluded because defendants did not provide a written report of their opinions pursuant to Fed.R.Civ.P. 26(a)(2)(B).[1]

Plaintiff recognizes that a treating physician is not considered "retained or specially employed" within the meaning of Rule 26(a)(2)(B) - and thus a written report is not required - if his or her testimony is limited to observations, diagnosis, and treatment of a patient. But plaintiff argues a report is required "[w]hen a witness opines as to causation, prognosis, or future disability" because the physician is then going beyond what he or she did and "is giving an opinion formed because there is a lawsuit." Doc. 430 at 4 (citing Griffith v. Northeast Ill. Regional Commuter R.R., 513 F.R.D. 513 (N.D. Ill. 2006)).

II. Standards.

Rule 26(a)(2)(B) requires a written report from expert witnesses who are "retained or specially employed to provide expert testimony in the case...." In the District of Kansas, as in most federal courts, it has long been recognized that treating physicians are not subject to this requirement to the extent they offer opinions on matters within the scope of their treatment of an individual. See e.g., White v. Union Pac. R. Co., 2012 WL 380245, *2 (D. Kan., Feb. 6, 2012); Starling v. Union Pac. R. Co. , 203 F.R.D. 468, 479 (D. Kan. 2001); Wreath v. United States , 161 F.R.D. 448, 450 (D. Kan. 1995). Opinions within the scope of the exception may extend to causation of an injury, diagnosis, prognosis, and other opinions arising out of and related to the treatment. Hildebrand v. Sunbeam Prods., Inc. , 396 F.Supp.2d 1241, 1250 (D. Kan. 2005).

When a physician's proposed testimony extends beyond facts made known during treatment and beyond opinions relating to the course of care and treatment, the witness may be subject to the requirement of a written report. For example, a treating physician who is asked to review to medical records of another provider in order to render an opinion about the propriety of that provider's care would likely be considered specially retained for trial. Wreath , 161 F.R.D. at 450. In part, courts look to whether the medical opinions, conclusions, and observations being offered by the treating physician necessarily played a role in his or her care and treatment of the plaintiff. See Kennedy v. United States, 2008 WL 717851, *1-2 (D. Kan., Mar. 17, 2008).

III. Discussion.

Plaintiff argues these three treating physicians should be regarded as retained experts because they are expected to testify about "causation, prognosis and future disability." (Doc. 430 at 5-7). Relying on the Griffith case cited above, plaintiff argues such opinions require a written report.

Plaintiff specifically objects to anticipated opinions from Dr. Bryant: (1) that he did not diagnose Edgar Richard as suffering from a closed head or brain ...


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