Commercial Litigation and Arbitration

Experts — Failure to Make 26(a)(2)(C) Expert Disclosure for Treating Physician (and, Presumably, Anybody Else) Limits Testimony to That of a Fact Witness

Vandivier v. United States, 2013 U.S. Dist. LEXIS 163295 (S.D. Ind. Nov. 16, 2013):

A treating physician may be called upon to provide expert testimony if he or she is providing opinions based upon specialized knowledge, even if those opinions were formed during the course of the plaintiff's treatment. See O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1105 n.14 (7th Cir. 1994) ("[W]e do not distinguish the treating physician from other experts when the treating physician is offering expert testimony regarding causation."). In those instances, the party seeking to use the treating physician's expert testimony must provide a disclosure to the opposing party; however, the written report requirement does not apply. Musser, 356 F.3d at 757 [Musser v. Gentiva Health Svcs., 356 F.3d 751, 757 (7th Cir. 2004)]. Nevertheless, the party must still comply with Rule 26(a)(2)(C) and include in the disclosure the subject matter and a summary of the facts and opinions to which the treating physician is expected to testify. Failure to disclose a treating physician as an expert will permit them to testify only as a fact witness, not an expert witness. Musser, 356 F.3d at 758.


Share this article:


Recent Posts