Opinion
97 Civ. 5292(JGK)(HBP)
March 7, 2002
MEMOPANDUM OPINION AND ORDER
I. Introduction
Defendant seeks to preclude testimony from Dr. James J. Ferretti concerning plaintiff's psychiatric condition, mental disability or emotional distress or, in the alternative, to compel production of the materials required by Fed.R.Civ.P. 26(a)(2) with respect to Dr. Ferretti on an expedited basis. Defendant also seeks its costs in bringing the instant application. For the reasons set forth below, defendant's application is denied.
II. Facts
This is an employment discrimination action. Plaintiff alleges that he has been employed as a Deputy United States Marshal in the Southern District of New York since June 1988 (Complaint ¶ 6). Plaintiff claims that during his tenure, he "has witnessed and openly voiced his opposition to the hostile work environment to which his African-American (Black) colleagues were subjected because of their race" (Complaint ¶ 8).
As a consequence of his criticism of the unfair treatment of African American Deputy Marshals, plaintiff claims that he was "subjected to harassment and disparate treatment, [that he] was, inter alia, denied service training that he had requested; referred to as a `white rat' by his colleagues; and subjected to other forms of harassment" (Complaint ¶ 12). Among other things, plaintiff alleges that he was subjected to physical and verbal abuse, that his locker was vandalized, that he was given undesirable assignments, that his performance reviews were unfairly downgraded and that his supervisors repeatedly failed to investigate his charges of retaliatory and disparate treatment or to take any corrective action.
As a result of these and other retaliatory acts, plaintiff alleges that he suffered "extreme emotional distress, requiring him to seek treatment and to request a leave of absence from the [Marshals Service]" (Complaint ¶ 48).
Plaintiff seeks to recover the wages he lost as a result of being denied desirable assignments, promotions and overtime, compensatory damages, punitive damages, injunctive relief and attorney's fees.
The current dispute concerns the testimony of Dr. James J. Ferretti, a psychiatrist that plaintiff first saw in March 1997, approximately four months prior to the commencement of this action (Exhibits A and B to the February 23, 2000 letter of Assistant United States Attorney Marianne T. O'Toole ("2-23-00 O'Toole Letter")). It appears that there is no dispute that Dr. Ferretti was plaintiff's treating physician; defendant's initial letter brief expressly refers to Dr. Ferretti as plaintiff's "treating psychiatrist" (February 10, 2000 Letter of Assistant United States Attorney Marianne T. O'Toole ("2-10-00 O'Toole Letter") at 3).
By Order dated October 25, 1999, I had ordered that plaintiff complete the disclosures required by Fed.R.Civ.P. no later than January 18, 2000. Despite the fact that plaintiff had previously represented that Dr. Ferretti would testify as an "expert" and that an "expert report" would be provided, (2-10-00 O'Toole Letter, Ex. B), no expert report for Dr. Ferretti has been produced.
III. Analysis
It is well settled that a treating physician is not subject to the disclosure obligations set forth in Fed.R.Civ.P. 26(a)(2)(B).
There can be no serious dispute that, as a treating physician, Dr. Giovinazzo was free to testify to opinions he formed in the course of treating [plaintiff], without regard to the disclosure requirements of Rule 26(a)(2), Fed.R.Civ.P. Brundidge v. City of Buffalo, 79 F. Supp.2d 219, 224 (W.D.N.Y. 1999); Thompkins v. Santos, 98 Civ. 4634 (MBM) (HBP), 1999 WL 1043966 at *8 n. 5 (S.D.N.Y. Nov. 16, 1999); Mangla v. Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996) ("Treating physicians . . . testifying to their personal consultation with a patient are not considered expert witnesses"); Salas v. United States, 165 F.R.D. 31, 32 (W.D.N Y 1995) (doctors' "opinions with respect to the injuries or illnesses sustained as they causally relate to [the] incident and his/her opinion as to permanency" were not subject to expert witness disclosure); Baker v. Taco Bell, 163 F.R.D. 348, 349 (D.Colo. 1995) (treating physicians may have "opinion[s] as to the cause of injury . . . or degree of injury in the future," but "[s]uch opinions do not make the treating physicians experts."). Accord Shapardon v. West Beach Estates, 172 F.R.D. 415, 416-17 (D. Haw. 1997). However, with respect to opinions unrelated to his treatment, Dr. Giovinazzo was subject to Rule 26(a)(2). Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993); Shapardon v. West Beach Estates, supra, 172 F.R.D. at 417; Brown v. Best Foods, 169 F.R.D. 385, 389 (N.D. Ala. 1996); Salas v. United States, supra, 165 F.R.D. at 33; Widhelm v. Wal-Mart Stores, Inc., 162 F.R.D. 591, 594 (D. Neb. 1995).Palmieri v. Celebrity Cruise Lines, Inc., 98 Civ. 2037 (LAP)(HBP), 2000 WL 310341 at *5 (S.D.N.Y. Mar. 27, 2000); see also Advisory Committee Notes to the 1993 Amendments to the Federal Rules of Civil Procedure,reprinted at 146 F.R.D. 401, 635 (1993). Accord, Giladi v. Strauch, 94 Civ. 3976(RMB)(HBP), 2001 WL 388052 at *6 (S.D.N.Y. Apr. 16, 2001);Lewis v. Triborough Bridge Tunnel Auth., 97 Civ. 0607 (PKL), 2001 WL 21256 at *1 (S.D.N.Y. Jan. 9, 2001).
The Advisory Committee Notes provide, in pertinent part:
For convenience, [Rule 26(a)(2)] continue[s] to use the term "expert" to refer to those persons who will testify under Rule 702 of the Federal Rules of Evidence with respect to scientific, technical, and other specialized matters. The requirement of a written report in paragraph (2)(B), however, applies only to those experts who are retained or specially employed to provide such testimony. . . . A treating physician. for example, can be deposed or called to testify at trial without any requirement for [sic] a written report.
(Emphasis added).
Defendant does not take issue with the foregoing principle. Rather, defendant takes issue with whether Dr. Ferretti truly is a treating physician. For example, defendant points out that the notes of Dr. Ferretti's initial consultation with plaintiff refer to Dr. Ferretti's need to discuss a "battle plan for [the] lawsuit" with plaintiff's counsel and the fact that Dr. Ferretti charged Zanowic $200 for providing a summary report to counsel (2-23-00 O'Toole Letter at 2-3).
The law is not well developed as to what makes a physician a "treating physician." The critical factor in determining whether a physician is a treating physician appears to be why the physician was retained. The Advisory Committee Notes to the 1993 Amendments state that "The requirement of a written report in paragraph (2)(B), however, applies only to those experts who are retained or specially employed to provide such testimony . . ." (emphasis added). Thus, whether a physician is a treating or consulting physician appears to turn on why the patient saw the physician — for treatment or for testimony.
The record currently discloses that plaintiff was referred to Dr. Ferretti by another physician, that Dr. Ferretti prescribed medications for plaintiff, that Dr. Ferretti saw plaintiff professionally on three occasions between March 21, 1997 and April 11, 1997 and that Dr. Ferretti had planned to see plaintiff again on April 18, 1997 (2-23-00 O'Toole Letter, Ex. B). The record does not disclose what plaintiff told Dr. Ferretti about his purpose in seeing the doctor, why plaintiff was referred by another physician to Dr. Ferretti, how frequently plaintiff saw Dr. Ferretti, what percentage of Dr. Ferretti's time is spent providing testimony and what percent is spent treating patients, whether plaintiff has continued to see Dr. Ferretti and if not, why not. Although additional evidence might result in a different outcome, the current state of the record, in conjunction with defendant's own characterization of Dr. Ferretti as a "treating" physician, leads to the tentative conclusion that Dr. Ferretti was a bona fide treating physician. The fact that plaintiff saw him on multiple occasions, that medication was prescribed and that plaintiff was referred to Dr. Ferretti by another physician all suggest that treatment was the reason plaintiff saw Dr. Ferretti.
As a treating physician, Dr. Ferretti can express an opinion as to "the cause of any medical condition presented in a patient, the diagnosis, the prognosis and the extent of the disability, if any, caused by the injury."Shapardon v. West Beach Estates, 172 F.R.D. 415, 416-17 (D. Haw. 1997).See also Wreath v. United States, 161 F.R.D. 448, 450 (D. Kan. 1995).
Because the record supports the conclusion that Dr. Ferretti was a treating physician, he is not subject Rule 26(a)(2)(B)'s disclosure requirements. Thus, plaintiff's failure to produce a report and the other required materials with respect to Dr. Ferretti is immaterial and there is no basis to preclude him from testifying. My conclusion in this regard is without prejudice to a renewed motion to preclude Dr. Ferretti from testifying, or to limit the scope of his testimony, in the event that additional evidence discloses that he was not a treating physician or that his relationship with plaintiff as a treating physician has terminated.
IV. Conclusion
Accordingly, for all the foregoing reasons, defendant's application to preclude Dr. Ferretti from testifying is denied. Since defendant has not prevailed on its Rule 37 application, its application for attorney's fees is also denied.