In Fielden v. CSX Transportation, Inc., the Sixth Circuit was presented with a FELA case where summary judgment was granted in favor of the railroad because the plaintiff did not file any expert report from his treating physician.1 The Sixth Circuit held that the treating physician could testify on the issue of causation (to wit, he believed that his patient’s extensive use of a “plate jack” at work caused the patient’s carpal tunnel syndrome), notwithstanding the absence of such a report. In doing so, the Sixth Circuit observed that Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure requires a party “to file an expert report from a treating physician only if that physician was ‘retained or specially employed to provide expert testimony.’”2 The Sixth Circuit went on to observe “[t]his conclusion is supported by the obvious fact that doctors may need to determine the cause of an injury in order to treat it” and that “[d]etermining causation may…be an integral part of ‘treating’ a patient.”3

Before 2010, there was a conflict between the Federal Courts on whether a treating physician was required to file a written report pursuant to Rule 26 of the Federal Rules of Civil Procedure.4 This resulted in an amendment to Rule 26 in the 2010 amendments, which offered the logical rationale behind why treating physicians’ designations need not contain elaborate details. As stated in the comments to the 2010 Amendments regarding subdivision (a)(2)(C):

Subdivision (a)(2)(C). Rule 26 (a)(2)(C) is added to mandate summary disclosures of the opinions to be offered by expert witnesses who are not required to provide reports under Rule 26(a)(2)(B) and of the facts supporting those opinions. This disclosure is considerably less extensive than the report required by Rule 26(a)(2)(B). Courts must take care against requiring undue detail, keeping in mind that these witnesses have not been specially retained and may not be as responsive to counsel as those who have.
 This 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).
 A witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or 705. Frequent examples include physicians or other health care professionals and employees of a party who do not regularly provide expert testimony. Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure required under Rule 26(a)(2)(C). The (a)(2)(C) disclosure obligation does not include facts unrelated to the expert opinions the witness will present.

 The Fielden Court, in reaching its conclusion, relied on the prior determination of a magistrate judge who stated:

It is within the normal range of duties for a health care provider to develop opinions regarding causation and prognosis during the ordinary course of an examination. To assume otherwise is a limiting perspective, which narrows the role of a treating physician. Instead, to properly treat and diagnose a patient, the doctor needs to understand the cause of a patient’s injuries.5

 Even in non-FELA or Jones Act cases, treating physicians who, for whatever reason, are not allowed to offer expert opinion testimony, may still offer testimony that implicates the specialized experience of the treating physician as an account of their observations during the course of treatment, which necessarily includes testimony relating to cause of injury.

The Eleventh Circuit recently observed that the testimony of treating physicians presents special difficulties.6 “Much of the testimony proffered by treating physicians is an account of their experience in the course of providing care to their patients. Often, however, their proffered testimony can go beyond that sphere and purport to provide explanations of scientific and technical information not grounded in their own observations and technical experience.”7

As the quoted language from Williams makes clear, a physician who is not qualified as an expert may not “provide explanations of scientific and technical information,” unless it is “grounded in [the physician’s] own observations and technical experience.”8 For example, the court in U.S. v. Henderson approved of a non-expert treating physician testifying about her diagnosis of an individual’s injury, in that case a fractured jaw, because it was based on her personal observation during her treatment of that individual and was a necessary component of providing appropriate medical care.

Both Henderson and Williams cite approvingly to the Tenth Circuit’s pre-2000 amendment decision in Davoll v. Webb, which held that a “treating physician, even when testifying as a lay witness, may state ‘expert’ facts to the jury in order to explain his testimony.”10 The Davoll court concluded that a treating physician’s testimony that explained the meaning of specialized medical terms such as “rehabilitation,” “modality,” and “soft tissue injury” was not opinion testimony, but the statement of expert facts, which were admissible to clarify the physician’s testimony about his treatment of the plaintiff in that case.11 The Davoll court also stated that treating physicians who are lay witnesses may offer opinions that are based on their experience as a physician and helpful to understanding their decision making process.12 

Treating physicians who are not designated as experts may offer “lay” testimony that implicates their specialized experience as a physician if the testimony is an account of their observations during the course of treatment or if it is offered for the purpose of explaining the physician’s decision-making process or the treatment provided.13

To view footnotes for this article, click here.

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