OPINION
This appeal concerns the scope of the expert report requirement of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. In particular, the issue is whether a plaintiff pursuing a claim under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., must file an expert report before the plaintiffs treating physician can testify as to the cause of the plaintiffs carpal tunnel syndrome. In this casе, Jesse Fielden did not file a timely expert report from his treating physician about the cause of Fielden’s carpal tunnel syndrome. The district court held that Rule 26(a)(2)(B) required the filing of the expert report and refused to consider the treating physician’s testimony that Fielden’s use of a “plate jack” while working at CSX Transportation caused Fielden’s carpal tunnel syndrome. Without the treаting physician’s testimony, there was no expert evidence that CSX Transportation caused Fielden’s injury, and the district court therefore granted summary judgment for the defendant. Because Rule 26(a)(2)(B) did not require the filing of an expert report in this case, we reverse the district court’s grant of summary judgment.
In 1976, Fielden began working in the railroad industry, and, after brief stints in other jobs, began working as a trackman and equipment operator at CSX Transportation, Inc. (“CSXT”), an interstate railroad company, on June 1, 1999. In 2000, Fielden complained of numbness and tingling in his arms and fingers, and a law firm referred Fielden to Dr. Mark Woodward, who diagnosed Fielden with mild carpal tunnel syndrome in his right hand. In June 2001, Dr. David A. Southwick, Fielden’s treating physician, diagnosed Fielden with carpal tunnel syndrome in his left hand. In October 2001, March 2002, and February 2003, Fielden underwent a series of surgeries to alleviate his symptoms. Although he does not experience the pain that he once had, Fielden complains of motor skills problems and a loss of movement in his hands.
Evidence of the source of Fielden’s injuries is of two sorts. First, Fielden described how he experienced pain in his right hand when operating a “plate jack,” a pounding and vibrating machine that jackеd up a rail to permit an operator to slide a tie plate underneath. Second, Dr. Thomas J. Fischer, another of Fielden’s treating physicians, testified that he “felt that [Fielden’s] original carpal tunnel syndrome was a work-aggravated condition.” 1
On April 1, 2004, Fielden served his initial disclosure of potential witnesses, identifying Dr. Southwick and Dr. Fischer as “individuals [who] may have information relevant to Mr. Fielden’s employment history ... and his medical condition resulting from [CSXT’s] negligence.” On September 22, 2004, Fielden responded to CSXT’s interrogatories. Interrogatory 24 read: “Please disclose the existence of all persons and produce all documents forthwith required by Federal Rule of Civil Procedure 26(a)(2)(A) & (B).” Fielden responded by listing Dr. Southwick and Dr. Fischer, noting thаt both “will testify on the issue of causation.”
The deadline for filing expert reports repeatedly changed. On April 1, 2004, the magistrate judge issued a Preliminary Pretrial Order directing (1) primary expert disclosures under Rule 26(a)(2) to occur by September 3, 2004, (2) discovery to continue until December 10, 2004, and (3) the filing of dispositive motions by January 14, 2006. The order did not set a trial date. On September 12, 2004, the district court extended thе deadline for Fielden’s expert disclosures, and on October 1, 2004, CSXT filed an unopposed motion for an extension of time, which the magistrate judge granted on October 18, 2004. At the end of all extensions, Fielden needed to file expert reports by December 1, 2004, the new deadline for discovery was March 1, 2005, and the final day for filing dispositive motions was April 1, 2006. Fielden did not provide expert reports to CSXT by December 1, 2004.
On December 21, 2004, Fielden’s counsel wrote a letter to Dr. Fischer requesting a “detailed narrative report” and an “opinion as to whether the condition for which you treated Mr. Fielden is causally related to his work with the railroad.” On December 23, 2004, the parties set Dr. Southwick’s deposition for January 31, 2005. At CSXT’s request, the parties moved the date to April 22, 2005, and then to June 13, 2005. The pаrties deposed Dr. Southwick and Dr. Fischer on June 13 and 14, respectively.
On April 1, 2005, the final day for filing dispositive motions, CSXT filed a motion for summary judgment, arguing that the record did not demonstrate CSXT’s negligence or a causal connection between
On September 1, 2005, the district court granted CSXT’s motion for summary judgment and denied Fielden’s Rule 56(f) request. The district court held that Dr. Fischer was an expert under Rule 26(a)(2)(B) and noted that Fielden did not file the required expert report by the December 1, 2004, deadline. Citing a letter from Fielden’s counsel to Dr. Fisсher, the district court noted that counsel failed to request the report from Dr. Fischer until 20 days after the deadline. The court also noted that counsel’s letter demonstrated that counsel considered Dr. Fischer to be a Rule 26(a)(2)(B) witness. Because the district court considered Fielden’s two treating physicians as retained experts under Rule 26(a)(2)(B), it excluded their testimony as a sanction fоr failure to comply with the rule. Finally, the district court granted summary judgment because, without expert testimony on the issue of causation, there was no genuine issue of material fact on an essential element of the claim.
Reversal is required in this case because Rule 26(a)(2)(B) does not require an expert report from a treating physician in the context of this FELA case where the рroposed testimony was that a patient’s extensive use of a “plate jack” at work caused the patient’s carpal tunnel syndrome. 2 Permitting a treating physician to testify on causation in this context is consistent with the plain language of Rule 26(a)(2)(B) and does not lead to the perverse results that district courts have recognized in other contexts.
Rule 26(a)(2)(B) by its terms provides that a рarty needs to file an expert report from a treating physician only if that physician was “retained or specially employed to provide expert testimony.” In this ease, Fielden did not retain Dr. Fischer for the purposes of providing expert testimony because there is evidence that Dr. Fischer formed his opinions as to causation at the time that he treated Fielden and there is no evidence that Dr. Fischer formed his opinion at the request of Fielden’s counsel. The Advisory Committee Notes also support the conclusion that Fielden did not need to file an expert report from Dr. Fischer. The Note to Rule 26 states that “[a] treating physician ... can be deposed or called to testify at trial without any requirement for a written report.” Fed. R.Civ.P. 26(a), cmt. 1993 Amendmеnts, subdivision (a), para. (2). Under a straightforward reading of the rale and its advisory note, Fielden did not need to file an expert report from Dr. Fischer.
It is within the normal range of duties for a health care provider to develop opinions regarding causation and prognosis during the ordinary course of an examination. To assume otherwise is a limiting perspective, which narrows the role of a treating physician. Instead, to properly treat and diagnose a patient, the doctor needs to understand the cause of a patient’s injuries. See McCloughan [v. City of Springfield], 208 F.R.D. [236,] 242 [ (C.D.Ill.2002) ] (“doctors do not operate in a vacuum.... Thus, the [c]ourt believes causation, diagnosis, and prognosis would be based on the treating physician’s personal knowledge.... ”).
Martin v. CSX Transp., Inc.,
It is true that in an unpublished opinion we upheld a magistrate judge’s order requiring treating physicians to file expert reports under Rule 26(a)(2)(B).
See Ridder v. City of Springfield,
No. 9503358,
The biggest concern with permitting treating physicians to testify in all circumstances without providing expert reports is that this would permit circumvention of the policies underlying the expert report requirement. A party might attempt to avoid Rule 26(a)(2)(B)’s requirement by having a treating physician testify оn an issue instead of having an expert do so. Some courts have accordingly concluded that when the nature and scope of the treating physician’s testimony strays from the core of the physician’s treatment, Rule 26(a)(2)(B) requires the filing of an expert report from that treating physician.
Sellers v. Butler,
No. 02-3055-DJW,
Courts drawing this line have considered a variety of factors. None of those factors, however, suggests that Rule 26(a)(2)(B) required Fielden to file an expert report in this case before Dr. Fischer could testify on the issue of causation.
This case is different, for instance, from
Mohney v. USA Hockey, Inc.,
This case is also distinguishable from those that look directly to the extent to which the Rule’s underlying procedural fairness is implicated. Rule 26(a) generally serves to “allow[ ] both sides to prepare their cases adequately and efficiently and to prevent the tactic of surprise from affecting the outcome of the case.”
Sherrod v. Lingle,
Nor is this case inconsistent with those that have focused on the content of the physician’s testimony. For example, courts are more likely to require a treating physician to provide an expert report if the condition at issue leaves room for debate as to the specific ailment and its sources.
See Gonzalez v. Executive Airlines,
Because thе plain meaning of Rule 26(a)(2)(B) indicates that Fielden did not need to file an expert report before Dr. Fischer could testify on the issue of causation, and because there are no grounds to hold that Dr. Fischer functioned as a retained expert in this case, the district court should not have excluded Dr. Fischer’s testimony on causation.
It follows that summary judgment in favor of CSXT was not appropriate in this case. Dr. Fischer’s testimony on causation coupled with Fielden’s testimony about his use of a “plate jack” created a genuine issue of material fact as to CSXT’s liability. A “relaxed” standard of causation applies in FELA cases,
Aparicio v. Norfolk & W. Ry. Co.,
Notes
. The deposition transcript establishes that Dr. Fischer formed his opinion while treating Fielden and that he was not tеstifying about his current expert opinion. The transcript reads:
Q: [I]t is your opinion, as Mr. Fielden's ... attending and treating physicians, that his work with the railroad aggravated the condition and pressure on the median nerve that caused him to have these symptoms [of] carpal tunnel syndrome?
A: From my review of the records of his previous treatment [with other doctors] and my evaluation of him when I first saw him, I felt that his original carpal tunnel syndrome was a work-aggravated condition, yes.
JA 393. Dr. Fischer’s deposition testimony refers to "my review of the records of his previous treatment” because Dr. Fischer treated Fielden after Dr. Southwick treated him.
CSXT argues that Dr. Fischer formed his opinions at a later point because, in his tardy expert report, Dr. Fischer failed to clarify when he came to believe that Fielden’s work caused the carpal tunnel syndrome. There is no reason, however, to expect the expert report to address when he, as a treating physician, came to believe that CSXT caused Fiel-den’s injury.
. Rule 26. General Provisions Governing Discovery; Duty of Disclosure ...
(2) Disclosure of Expert Testimony ...
(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness whо is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a ■written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reаsons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
. Although this court in
Harville v. Vanderbilt University,
. It is worth noting that the district court did not balance these factors and instruct Fielden to file the expert report, and CSXT did not demand an expert report after Fielden informed it that Dr. Fischer would testify on causation. The district court was silent as to whether it believed Rule 26(a)(2)(B) required the filing of expert reports until it issued its order granting summary judgment in CSXT's favor, and Fielden did not have an opportunity to raise relevant arguments before the district court.