Federal court litigators are of course familiar with Fed.R.Civ.P. 26(a)(2)(B), which requires “a written report” from the witnesses we typically think of as “expert witnesses,” i.e., the witnesses “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.” But what about other types of expert witnesses?
“Non-retained” expert witnesses are more common in federal court than many people realize: think of the doctors who treated an injured plaintiff, the government employees who investigated an accident, the engineers who worked on a defective product, or the competing inventors of a design in a patent infringement case. What do parties have to disclose before trial about those witnesses?
Back in 2010, Federal Rule of Civil Procedure 26(a)(2)(C) was amended to “require disclosure regarding expected expert testimony of those expert witnesses not required to provide expert reports and limit the expert report to facts or data (rather than ‘data or other information,’ as in the current rule) considered by the witness.” FRCP 26, Committee Notes (2010). Those “witnesses not required to provide expert reports” would be, of course, all of the non-retained expert witnesses.
It often takes a while for changes in rules to translate into changes in practice. Seven years after those amendments were passed, courts are still sorting out exactly what they mean, and litigators are still figuring out what they need to do. In this post, we’re going to cover:

  • When a party has to provide a thorough Rule 26(a)(2)(B) report for a non-retained witness;
  • When a party has to provide a summary Rule 26(a)(2)(C) report for a non-retained witness; and,
  • What courts tend to do when a party has failed to provide either report for a non-retained witness.

In many ways, “the more things change, the more they stay the same.” The 2010 amendments left enough ambiguities that courts still often rely on pre-2010 precedent to figure out what to do.
Under Fed.R.Civ.P. 26(a)(2)(A), a party has to disclose “the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” That means every witness “who is qualified as an expert” under Fed.R.Evid. 702, regardless of whether the expert was hired by a party to testify as an expert.
Under Fed.R.Civ.P. 26(a)(2)(C),

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:

(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and

(ii) a summary of the facts and opinions to which the witness is expected to testify.

Obviously, Rule 26(a)(2)(C)’s requirements for disclosure of “the subject matter” and “a summary of the facts and opinions to which the witness is expected to testify” is far less onerous and thorough than the detailed reports that paid experts have to provide under Rule 26(a)(2)(B). As a result, in general, lawyers would like to provide the Rule 26(a)(2)(C) if they can.
As one court recently described,

To summarize, before the 2010 amendments to Rule 26(a)(2), the majority of courts held that treating physicians providing opinions on causation, diagnosis, prognosis, and the extent of disability were not required to provide Rule 26(a)(2)(B) reports if their opinions were formed during the course of treating their patients. However, if a treating physician’s opinions were based on information provided by an attorney or others that were not reviewed during the course of treatment, a Rule 26(a)(2)(B) report was required “insofar as their additional opinions are concerned.” [Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011)].

The 2010 amendments to Rule 26(a)(2) now mandate that non-retained experts, like treating medical providers, who offer opinions based on their “knowledge, skill, experience, training or education” under Federal Evidence Rules 702, 703, or 705, make the disclosures required by Rule 26(a)(2)(C). Rule 26(a)(2)(C) requires disclosure of “(i) the subject matter on which the written witness is expected to present evidence under Federal Evidence Rule 702, 703 or 705; and (ii) a summary of facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C)(i), (ii).

The disclosure obligation stated in 26(a)(2)(C) “does not apply to facts unrelated to the expert opinions the witness will present.” Fed. R. Civ. P. 26 Advisory Comm. Notes (2010). A treating physician is still a percipient witness of the treatment rendered and may testify as a fact witness and also provide expert testimony under Federal Evidence Rules 702, 703, and 705. However, with respect to expert opinions offered, a Rule 26(a)(2)(C) disclosure is now required.

Alfaro v. D. Las Vegas, Inc., No. 215CV02190MMDPAL, 2016 WL 4473421, at *11 (D. Nev. Aug. 24, 2016)(paragraph breaks added).
We thus come to our first issue: when does a non-retained expert witness, like a treating physician, need to provide the thorough report under Rule 26(a)(2)(B) instead of the summary report under Rule 26(a)(2)(C)?
Prior to the 2010 amendments, courts decided this issue by considering whether the doctor’s opinion was formed during the course of treatment or not – but the 2010 amendments don’t say one way or another if that should still be the rule. Perhaps the most exhaustive analysis of this issue is Kondragunta v. Ace Doran Hauling & Rigging Co., No. 1:11–cv–01094–JEC, 2013 WL 1189493, at *10 (N.D.Ga. Mar. 21, 2013), in which Judge Carnes plowed through the post-amendment case law and held that the “traditional” test still applied in determining whether a witness with special expertise was required to disclose their opinions with a Rule 26(a)(2)(B) report:

[I]f a physician’s opinion regarding causation or any other matter was formed and based on observations made during the course of treatment, then no Subsection B report is required, albeit the Subsection C report discussed above will be required. If, however, the physician’s opinion was based on facts gathered outside the course of treatment, or if the physician’s testimony will involve the use of hypotheticals, then a full subsection B report will be required.

Id. at *12 (internal citations omitted); accord In re C.R. Bard, Inc., 948 F. Supp. 2d 589, 615 (S.D.W. Va. 2013), on reconsideration in part (June 14, 2013). For a contrary view, see  Kristensen ex rel. Kristensen v. Spotnitz, No. 3:09–CV–00084, 2011 WL 5320686, at *4 (W.D.Va. June 3, 2011). Kristensen questioned the continued viability of prior case law requiring Rule 26(a)(2)(B) reports from treating physicians called upon to opine on information learned outside the course of treatment. Kristensen thus found it was sufficient when a plaintiff disclosed that a treating physician’s letter stating that she treated the plaintiffs, “that the family members had various upper respiratory infections, that there was mold in the house, that it has been shown that mold can cause irritation to the respiratory system, and that she ‘believe[s] that the family’s recent problems … are related to [mold] contamination of their house.’”
That brings us to the next issue: when a Rule 26(a)(2)(C) report is required.
As the commentary to the 2010 amendment says, “The (a)(2)(C) disclosure obligation does not include facts unrelated to the expert opinions the witness will present.” The problem is where the line is drawn between “facts unrelated to the expert opinions the witness will present” and “expert opinions.” What if, for example, a doctor treating a patient records their opinions about the cause of a patient’s injuries? What if a doctor thinks about what may have caused the patient’s injuries, but doesn’t write it in the medical records? It is, of course, a fact that the doctor reached those opinions, and yet that fact is, itself, an expert opinion. If that happens, and one of the parties wants to call the doctor as a witness, do they need to disclose those opinions under Rule 26(a)(2)(C)?
The Middle District of Alabama recently considered this issue:

The issue before this court, therefore, is whether testimony as to causation by Dr. Kotecha, a treating physician, falls within Rule 26(a)(2)(C). The Eleventh Circuit has explained that “the testimony of treating physicians presents special evidentiary problems that require great care and circumspection by the trial court.” Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312 (11th Cir. 2011). In Williams, the court relied on decisions from other circuits which reasoned that a treating physician is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party, but when a “treating physician’s testimony is based on a hypothesis, not the experience of treating the patient, it crosses the line from lay to expert testimony.” Id. at 1317-18.

Another district court, in an opinion relied upon by the Plaintiff, similarly has reasoned that 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. Eberhart v. Novartis Pharmaceuticals Corp., 867 F. Supp. 2d 1241 (N.D. Ga. 2011). The court further pointed out that when causation is not necessary to provide medical treatment and is based on a hypothesis, it is expert testimony. Id. at 1252.

Specifically with regard to causation testimony by treating physicians, courts addressing the issue after 2010 have concluded that where a plaintiff offers a treating physician’s testimony as to causation, the offering party is required to comply with Rule 26(a)(2)(C). See, e.g., Davis v. Green, No. 1:12cv3549-WSD, 2015 WL 3505665, at *3-4 (June 3, 2015); Kondragunta, 2013 WL 1189493, at *6.

The Plaintiff in this case has cited the court to cases to support his argument that testimony as to causation is within the purview of a treating physician and does not require disclosure under Rule 26(a). The cases cited by the Plaintiff, however, examine the scope of the reporting requirement in Rule 26(a)(2)(B), not Rule 26(a)(2)(C), or were decided under the previous version of the Rule. See Cobble v. Wal-Mart Stores E., No. 1:10cv10, 2010 WL 1088513, at *3 (N.D. Ind. March 19, 2010) and Odum v. Rayonier, Inc., No. Civ. A. CV204-190, 2007 WL 2002445, at *3 (S.D. Ga. July 5, 2007).

Trinidad v. Moore, No. 2:15CV323-WHA, 2016 WL 5341777, at *3 (M.D. Ala. Sept. 23, 2016). Thus, almost everyone needs to provide a Rule 26(a)(2)(C) report if they’re going to testify outside of the narrow scope of what they knew and formed opinions about prior to the litigation – which often means, in particular, if a treating physician is going to testify about causation or if they’re going to answer hypothetical questions. See, e.g., Patrick v. Henry Cty., No. 1:13-CV-01344-RWS, 2016 WL 2961103, at *2 (N.D. Ga. May 23, 2016)(“when a treating physician testifies as to the cause of an injury or illness, he or she testifies as an expert.”)
Which brings us to the final issue: what happens if a party fails to disclose a non-retained expert witness?
Trinidad v. Moore gives an answer: “The court concludes, therefore, that the Motion in Limine is due to be GRANTED as to testimony by Dr. Do as to affirmation of a life care plan or future treatment which is not discussed in her medical records or report.” Id. at *5. Note how specific it was: the doctor couldn’t talk about issues beyond their medical records or the report they provided, but everything in the medical records or their report was fair game. The same was true in Patrick v. Henry Cty.: “Plaintiff’s treating physicians may testify about facts. Allowing Plaintiff to call his treating physicians as fact witnesses does not cause the same kind of incurable prejudice to Defendant. Defendant was aware of the fact of Plaintiff’s diagnosis and accordingly can be prepared to defend against that.”
That seems to generally be the rule: even if the court finds that a disclosure under Rule 26(a)(2)(C) was required, the end result is to limit the treating physician to the medical records and to opinions formed in the course of treatment. That was, for example, what the District of Nevada did when faced with the same issue:

In considering the facts and circumstances, the harm caused by Plaintiffs’ failure to comply with Rule 26 has not been sufficiently mitigated and is not harmless. However, the Court finds that Plaintiffs’ disclosed treating physicians should be allowed to testify. Accordingly, Defendant’s motion to strike is GRANTED to the extent it seeks to limits Plaintiffs’ treating physicians’ testimony to the subject matter of their treatment as disclosed in the medical records and to opinions formed in the course of treatment. See Carrillo v. B & J Andrews Enterprises, LLC, 2013 WL 394207, at *7 (D.Nev. Jan.29, 2013) (permitting testimony regarding treatment despite failure to comply with Rule 26(a)(2)(C)).

Korhonen v. Sentinel Ins. Ltd., No. 2:13-CV-00565-RCJ, 2015 WL 2185365, at *5 (D. Nev. May 8, 2015).
Going back to the three questions we started with:
When does a party have to provide a thorough Rule 26(a)(2)(B) report for a non-retained witness? When the witness’s opinion is based on facts gathered outside the work they were doing, or if the testimony will involve the use of hypotheticals.
When does a party have to provide a summary Rule 26(a)(2)(C) report for a non-retained witness? When the witness is testifying beyond their own observations and technical experience.
What do courts tend to do when a party has failed to provide either report for a non-retained witness? They tend to limit the witness to the facts they observed and the opinions contained in the records or formed during the work they were doing.
Before we conclude, two more observations.
First, plaintiffs who are using treating physicians can obviate most of these problems by deposing the treating physicians, or by asking the questions at their depositions. Even if that’s not the same thing as the formal Rule 26(a)(2)(C) statement, it will obviate any “surprise” or “prejudice” claimed by the defendant.
Second, Rule 26(a)(2) makes no special allowances for defendants. If a defendant wants to call one of their employees and then have that employee testify about their opinions or hypotheticals – as is often the case, particularly in product liability cases – then the requirements would apply just the same. If the witness wanted to testify based on facts gathered outside of the work, or if they wanted to testify about hypotheticals, then a Rule 26(a)(2)(B) report would be required. If the witness wanted to testify beyond their own observations during the work they performed, then a Rule 26(a)(2)(C) report would be required, including “the subject matter” and “a summary of the facts and opinions to which the witness is expected to testify.”