293 F.R.D. 106
D. Conn.2013Background
- Defendants move to preclude Dr. Sabrina Breed's testimony and records; Plaintiffs want Breed as Ron Barack's treating physician.
- Court addresses whether treating physicians may testify as experts under Rule 702 without being designated as expert witnesses.
- Rule 26(a)(2) governs disclosures: treating physicians must be disclosed and provide a 26(a)(2)(C) summary of facts and opinions.
- Plaintiffs disclosed Dr. Breed late and via improper channels; defendants argued this violated deadlines and disclosure requirements.
- Court notes prior orders restricting Breed's testimony and scrutinizes the late disclosure as potentially sandbagging the defense.
- Court contemplates sanctions under Rule 37(c)(1) and sets a hearing for July 24–25, 2013 to determine sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Breed may testify without a Rule 26(a)(2)(B) expert report | Breed is a treating physician who may testify under Rule 702 without being designated as an expert. | Late disclosure and lack of proper 26(a)(2)(C) summary bar treating as ordinary expert; need compliance or sanctions. | Sanctions may be imposed; testimony limited and contingent on future hearing; timing and disclosure issues unresolved. |
| Whether Plaintiffs’ disclosure violations justify excluding Breed's testimony or providing limited use | Dr. Breed was disclosed as treating physician timely enough and should be allowed with limits. | Plaintiffs sandbagged Defendants by last-minute, inadequate disclosures; relief warranted. | Court to decide sanctions at hearing; partial grant in that June 7 report cannot be used as treating-disclosure; summary to be provided per Rule 26(a)(2)(C). |
| What scope of Dr. Breed’s testimony is permissible if allowed | Breed can discuss treatment-based opinions and causation arising from her treatment of Barack. | Testimony must be limited to personal treatment observations and cannot rely on outside materials or reports. | Testimony limited to treatment-based topics with strict boundaries; other matters barred unless tied to her care and records. |
| Whether the June 7, 2011 report can be used in trial | The report reflects Breed's expert opinions and should be admissible. | The June 7 report is an untimely Rule 26(a)(2)(B) disclosure and cannot be used as a treating-physician summary. | The June 7 report cannot be introduced as the treating-physician summary; may be referenced only as stipulated portions in rebuttal under court order. |
Key Cases Cited
- Lamere v. N.Y. State Office for the Aging, 223 F.R.D. 85 (N.D.N.Y. 2004) (treating-physician disclosures and expert-report requirements)