Opinion
Civil Action 1:00-CV-2
January 20, 2001
Opinion and Order (Paper 20 and 22)
Defendant United Parcel Service of America, Inc., (UPS), moves for partial summary judgment on the assumption that the Court will grant its motion to exclude the testimony of Susan Finney-Seymour's treating physician. UPS contends that the testimony must be excluded pursuant to Fed.R.Civ. p. 37(c) because Finney-Seymour's treating physician, Dr. Peter McAllister, failed to submit an expert's written report in accordance with Fed.R.Civ.P. 26(a)(2)(B). See Fed.R.Civ.P. 37 (c) ("a party that without substantial justification fails to disclose information required by Rule 26(a) . . . shall not, unless such failure is harmless be permitted to use as evidence at a trial . . . any witness or information not so disclosed. . . . ").
The Court offers no opinion about whether the appropriate sanction for a violation of Rule 26(a) under these facts would be to exclude the testimony pursuant to Rule 37(c). See Rothschild v. Fine, 2000 WL 1810107, at * 27 (S.D.N.Y. Nov. 21, 2000) ("imposition of sanctions under Rule 37 is a drastic remedy and should only be applied in those rare cases where a party's conduct represents flagrant bad faith and callous disregard.") (internal quotations omitted).
Without this testimony, UPS argues that Finney-Seymour will be unable to prove that a UPS truck caused her injuries when it slid across the road, hitting the car in which she rode. Absent evidence of causation, UPS argues, Finney-Seymour cannot successfully present her case to a jury and, therefore, summary judgment is appropriate.
UPS also argues that McAllister should not be permitted to testify as a scientific expert pursuant to F.R.E. 702 and the gatekeeping strictures set forth in Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579, 113 S.Ct. 2786 (1993). This order does not address McAllister's potential testimony as an expert. If necessary, the Court will decide this issue at a hearing to be set on the day of trial.
Finney-Seymour counters that McAllister, as her treating physician, is exempt from the requirements of Fed.R.Civ. p. 26(a)(2)(B) because he was not specially retained to testify and he developed his opinions in the course of treatment. She further argues that McAllister's testimony will be sufficient to prove causation and, therefore, she contends that summary judgment is inappropriate.
Discussion
"Treating physicians testifying to their personal consultation with a patient are not considered expert witnesses" because they are not retained expressly for trial purposes and they do not base their opinions on knowledge acquired in anticipation of a trial. Brundidge v. City of Buffalo, 79 F. Supp.2d 219, 224 (W.D.N Y 1999). Moreover, "[a]s a general rule, a treating physician considers not just the plaintiff's diagnosis and prognosis, but also the cause of the plaintiff's injuries." Salas v. United States, 165 F.R.D. 31, 33 (W.D.N.Y. 1995); see also Kent v. Katz, No. 2:99-CV-189 (D. Vt. Aug. 9, 2000).
Developing an opinion as to the cause of the patient's injury based upon a physical examination, without consulting the patient's other medical records, is "a necessary part of treatment" and does not make the treating physician an expert. Brundidge, 79 F. Supp. 2d at 225. So long as the treating physician does not comment on or review the opinions of other doctors, testimony concerning the cause of an injury specifically treated by the testifying physician does not require compliance with Fed.R.Civ.P. 26(a)(2). See Salas, 165 F.R.D. at 33.
In its motion, UPS notes that McAllister testified in deposition that he was unfamiliar with Finney-Seymour's other medical records and he also had not spoken with her other treating physicians. (Paper 23 at 3). McAllister developed his opinions, therefore, exclusively through his medical expertise and on the basis of Finney-Seymour's care and treatment. Thus, to the extent that McAllister testimony is limited to his opinions developed while treating Finney-Seymour, his testimony will be permitted.
Conclusion
As set forth above, UPS's motion to exclude Dr. McAllister's testimony as Finney-Seymour's treating physician is DENIED. Because the motion is denied, the motion for summary judgment is MOOT.
SO ORDERED.