Summary
In Byrne v. Gracious Living Industries, Inc., 2003 WL 446474, at *2 (S.D.N.Y. Feb. 25, 2003), Judge Kaplan differentiated the roles of a treating physician and those of an expert.
Summary of this case from Martinez v. Port Authority of New York New JerseyOpinion
No. 01 Civ. 10153 (LAK)
February 25, 2003
ORDER
Defendants in this products liability case have filed a motion in limine to exclude certain of plaintiffs' proposed evidence.
1. Defendants seek to exclude the expert testimony of Craig Clauser, P.E., who proposes to opine that (a) the chair in question was sold in defective condition as a result of manufacturing flaws, and (b) defendant Gracious Living Industries, Inc. ("GLI") negligently failed to require and carry out adequate quality control testing. Their brief, however, focuses exclusively on the proposed manufacturing defect opinion.
Mr. Clausner report states, based on his examination of the failed chair, that there are seams or cold flow markings on the surface of the leg in the area of the failure as well as gas porosity in the plastic intersected by the fracture surface. He proposes to express the view that defects such as these "can reduce the mechanical properties of the plastic" and that the leg of this chair "was not strong enough for its intended service."
Defendants complain that the opinion is inadmissible under Daubert v. Dow Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993), and its progeny, chiefly because Mr. Clausner failed to carry out any testing. Empirical testing, to be sure, will be important in many cases. Its apparent absence may be so here. In the last analysis, however, the Court is persuaded that Mr. Clauser's opinion as to the manufacturing defect issue is sufficiently reliable — given his expertise and its foundation on observable conditions of the subject chair — to leave the matter to the jury. Defendants' arguments appropriately go to the weight rather than to the admissibility of the evidence.
They contend also that he formulated and tested no hypotheses and that he has published no peer reviewed articles regarding plastic chair manufacturing. In the specific context of this case, these are forensic quibbles that do not seriously affect the analysis. For example, while Mr. Clausner's did not speak in haec verba of formulating and testing hypotheses, it is perfectly clear from his report that his hypothesis in essence was that the load placed on the chair, which was within its stated limits, exceeded its strength by reason of some manufacturing defect. He then examined the chair and found observable conditions that, in his view, reflecting such a defect. This process thus involved the formulating and testing of a hypothesis, even if its description did not use those words.
As the parties have not seriously addressed the admissibility of the proposed opinion regarding quality control, that matter will be left for resolution at trial if, indeed, defendants press the point.
2. Defendants seek to exclude 237 pages of documents that relate, in one way or another, to the recall and discontinuation of sale by them of another molded plastic chair that they had marketed for a time in 1992 in the wake of reports of collapses of the product and an inquiry by the Consumer Products Safety Commission. Plaintiffs argue that the documents are relevant because they (1) include representations by GLI concerning its alleged extensive quality control program, which are said to be pertinent to whether its alleged lack of quality control procedures in respect of the subject chair was negligent, (2) demonstrate GLI's awareness that stringent quality control was required for products of this nature, and (3) impeach GLI's present operations manager, who joined the company in 1993, on certain matters.
There has been no effort by either side to address the documents on an individual basis, and it surely is not reasonable to impose on the Court the burden of combing through 237 pages of letters, reports, memoranda and the like, formulating theories as to why plaintiffs might want to use each, and then imagining specific objections for defendants, above and beyond the broad proposition they advance — that the 1992 episode involved a different chair. The difference between the chairs alone is not especially persuasive. Both are injection molded plastic chairs. The problem with the 1992 chair, if there was one, was that the back legs tended to spread and cause the chair to collapse when a heavy load was placed upon it. The problem with the subject chair, if there was one, was that a heavy load might result in a collapse as a result of manufacturing problems that reduced the anticipated strength of the legs. While the chairs differed in some respects, the similarities — both were molded plastic chairs without any rigid frame and thus both subject to deformation under loads considerably lighter than most chairs with which the ordinary person is familiar — cannot be disregarded. As the negligence of the defendants in respect of quality control will turn on the reasonableness of their actions, in light of the circumstances known to them, the Court will not now exclude on a wholesale basis any and all evidence concerning the 1992 situation. This is not to say, however, that all 237 pages of materials will come in. The matter will have to be addressed more specifically during the course of the trial. Moreover, it is difficult to see how any of these documents, all of which antedate Mr. Slater's arrival at GLI, could be used to impeach any statement by Mr. Slater.
3. Defendants seek to exclude the testimony of T.P. Felderman, M.D., the treating physician of the injured plaintiff, on the grounds that Dr. Felderman was not identified as an expert witness in response to their interrogatories and has not submitted an expert report. Thus, defendants claim that plaintiffs have failed to comply with Rules 26(a)(2)(A) and (B).
A treating physician who is called to testify to information acquired solely in that role, as opposed to giving an opinion formulated for trial, is not an expert for purposes of Rule 26(a)(2)(A). The question is not so simple where a treating physician is called "primarily to offer conclusions regarding causation rather than primary to testify as to what the physician observed during treatment . . ." Id. But that need not be decided here. The purpose of the disclosure requirement of Fed.R.Civ.P. 26(a)(2)(A) "is to give parties a reasonable opportunity to prepare an effective cross-examination of the opposing parties' expert witnesses and, if necessary, arrange for testimony from other experts." 6 MOORE'S FEDERAL PRACTICE ¶ 26.23[2][a][i] (3d ed. 2000). Inasmuch as defendants are well aware of the identity of Dr. Felderman and claim no prejudice from any delay in its disclosure, any failure to comply strictly with Rule 26(a)(2)(A) was harmless and will not result in preclusion.
Rule 26(a)(2)(B) presents a somewhat different question. Nevertheless, most courts have held that, so long as the physician's opinion was acquired directly through treatment of the patient, it is not expert testimony for purposes of Rule 26(a)(2)(B). Thus, "to the extent that a treating physician testifies only to the care and treatment of the patient, the physician is not considered to be a `specially employed' expert and is not subject to the written report requirements of Rule 26(a)(2)(B), `notwithstanding that the witness may offer opinion testimony under [the Federal Rules of Evidence].'" Salas v. United States, 165 F.R.D. 31, 33 (W.D.N.Y. 1995) (quoting Wreath v. United States, 161 F.R.D. 448, 450 (D.Kan. 1995)); accord Sprague v. Liberty Mutual Insurance Co., 177 F.R.D. 78 (D.N.H. 1998) Shapardon v. West Beach Estates, 172 F.R.D. 415 (D.Haw. 1997); Sullivan v. Glock, Inc., 175 F.R.D. 497 (D.Md. 1997); Lauria v. Nat. Railroad Passenger Corp., 1997 WL 138906, at *2 (E.D.Pa. 1997); Piper v. Hanischfeger Corp., 170 F.R.D. 173, (D.Nev. 1997). Moreover, so long as this criterion is met, there is no limitation on the scope of the opinion rendered. That is, opinions as to causation have been held permissible. See Sprague, 177 F.R.D. at 81. But see Widhelm v. Wal-Mart Stores, Inc., 162 F.R.D. 591, 593 (D.Neb. 1995); Thomas v. Consolidated Rail Corp., 169 F.R.D. 1, 2 (D.Mass. 1996). Accordingly, the lack of an expert report from Dr. Felderman is not necessarily fatal to the admissibility of his testimony, although defendants are free to argue at trial, should the circumstances warrant, that Dr. Felderman's testimony is primarily that of an expert engaged specially for trial rather than as a treating physician, in which case the Court might reconsider this ruling.
The majority of these courts have also allowed opinions as to diagnoses, prognoses, and the extent of disability. The others allowed opinions as to causation, though they did not expressly proscribe broader opinion testimony. See Sprague, 177 F.R.D. at 81 (collecting cases).
For all of the foregoing reasons, defendants' motion in limine is denied in all respects.
SO ORDERED.