, the plaintiff brought an occupational injury lawsuit against his employer, Amtrak, under the Federal Employers’ Liability Act (“FELA”). In response to a motion for summary judgment filed by Amtrak, the plaintiff offered, inter alia
, expert testimony from his treating physicians to prove causation between Amtrak’s actions, or lack thereof, and his injuries. Amtrak moved to strike the reports of these experts as non-compliant with Fed. R. Civ. P. 26(a)(2)
. The district court granted that motion and awarded summary judgment in its entirety to Amtrak. The plaintiff appealed.
On appeal, the Court recognized that it had not yet spoken on whether a treating physician is "is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony" and, therefore, subject to the disclosure requirements of Rule 26(a)(2).
We resolve this outstanding issue today by concluding that a treating physician who is offered to provide expert testimony as to the cause of the plaintiff's injury, but who did not make that determination in the course of providing treatment, should be deemed to be one "retained or specially employed to provide expert testimony in the case," and thus is required to submit an expert report in accordance with Rule 26(a)(2).
The plaintiff "present[ed] no evidence ... suggesting that either doctor previously considered or determined the cause of Meyers’s injuries during the course of treatment." Therefore, the Court held that the opinions were properly stricken.
The lesson from this case is clear -- a plaintiff who does not wish to make the Rule 26(a)(2) disclosures regarding the opinions of a treating physician must demonstrate that the doctor's opinion was formed "in the course of providing treatment." However, the details about how this will actually play out in litigation are less clear. Those who choose to take advantage of the safe harbor offered by the Court's decision should ideally have the expert's report describe why the causation determination was made in the course of providing treatment. If this cannot be done, then the proponent of that expert must make some other sort of showing on this issue, lest the expert be stricken.