Unretained Expert Disclosure vs. Retained Expert Report — Who Bears Burden of Proof as to Which Is Required — Witness May Be Subject to Providing Both as to Different Portions of Testimony — When Treating Physician = Retained Expert

In re Denture Cream Products Liability Litigation, 2012 U.S. Dist. LEXIS 152277 (S.D. Fla. Oct. 22, 2012):

Federal Rule of Civil Procedure 26(a) sets forth requirements for disclosing expert testimony. See Fed. R. Civ. P. 26(a)(2). Parties must identify any witnesses they "may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Id. 26(a)(2)(A). Rule 26 differentiates between disclosures of witnesses who provide a written report, and those who do not. Compare id. 26(a)(2)(B) with id. 26(a)(2)(C). A full written and signed report is required from an expert who is "retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." Id. 26(a)(2)(B). In contrast, when an expert is not required to provide a written report under subsection (B), the attendant disclosure is "considerably less extensive." Fed. R. Civ. P. Advisory Committee's Notes (2010 Amendments).

Although Defendants, as the moving parties, bear the initial burden of showing a valid basis for striking Plaintiffs' disclosures, Plaintiffs, as the parties seeking to avoid producing full written expert reports, bear the burden of demonstrating that Rule 26(a)(2)(B) reports are not required. See Cinergy Commc'ns v. SBC Commc'ns, No. 05-2401-KHV-DJW, 2006 U.S. Dist. LEXIS 80397, 2006 WL 3192544, at *3 (D. Kan. Nov. 2, 2006); Meredith v. Int'l Marine Underwriters, No. GLR-10-837, 2012 U.S. Dist. LEXIS 100972, 2012 WL 3025139, at *5 (D. Md. July 20, 2012). In determining whether a Rule 26(a)(2)(B) report is required, the label of "treating physician" is irrelevant; instead, the determination turns on the substance of the physician's testimony. Singletary v. Stops, Inc., No. 6:09-cv-1763-Orl-19KRS, 2010 U.S. Dist. LEXIS 92660, 2010 WL 3517039, at *6 (M.D. Fla. Sept. 7, 2010).

When a treating physician testifies regarding opinions "formed and based upon observations made during the course of treatment," the treating physician need not produce a Rule 26(a)(2)(B) report. Jensen v. Carnival Corp., No. 10-24383, 2011 U.S. Dist. LEXIS 108727, at *3 (S.D. Fla. Sept. 25, 2011) (citations omitted). By contrast, treating physicians offering opinions beyond those arising from treatment are experts from whom full Rule 26(a)(2)(B) reports are required. See Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011) (requiring a written report from treating physicians who give expert testimony beyond the scope of the treatment rendered and review information provided by attorneys in rendering their opinions); Meyers v. National R.R. Passenger Corp. (Amtrak), 619 F.3d 729, 734-35 (7th Cir. 2010); see also Meredith, 2012 U.S. Dist. LEXIS 100972, 2012 WL 3025139, at *5 ("A witness must submit a report regarding any opinions formed specifically in anticipation of litigation, or otherwise outside the normal course of a duty." (citations omitted)). A treating physician may be subject to Rule 26(a)(2)(C) as to portions of his or her testimony and may be deemed a retained or specially employed expert who is subject to Rule 26(a)(2)(B) as to other portions. See Sullivan v. Glock, Inc., 175 F.R.D. 497, 500 (D. Md. 1997).

Rule 26(a)(2)(B) requires full written reports for Plaintiffs' experts and such reports have not been provided for the case-specific experts opining on causation or the general causation rebuttal experts. Defendants have met their initial burden of showing a valid basis for striking Plaintiffs' case-specific expert disclosures as well as Plaintiffs' identification of rebuttal experts regarding general causation. See Cinergy Commc'ns, 2006 U.S. Dist. LEXIS 80397, 2006 WL 3192544, at *3. As to the treating physicians disclosed as experts here, Plaintiffs simply assert their designated experts are un-retained treating physicians and summarily conclude that full written reports are not required. Yet, as stated, the title "treating physician" does not carry the day for Plaintiffs; instead, Plaintiffs must show the substance of such designated experts' testimony does not require a full written report. See Stops, Inc., 2010 U.S. Dist. LEXIS 92660, 2010 WL 3517039, at *6. Inasmuch as Plaintiffs' treating physicians are opining on causation -- either specific or general -- Defendants are entitled to full Rule 26(a)(2)(B) reports because such opinions go beyond those arising from treatment. See Goodman, 644 F.3d at 826. Plaintiffs' case-specific and general causation rebuttal expert disclosures are indeed insufficient.

As to the case-specific experts opining on issues other than causation, all parties appear to agree Plaintiffs' experts must produce Rule 26(a)(2)(B) reports. The only issue is whether they must have been produced in accordance with the July 29, 2012 deadline for "Plaintiffs to serve Rule 26(a)(2) case-specific expert disclosures in individual cases." (April 13 Scheduling Order). The April 13 Scheduling Order did not make an exception for experts addressing issues other than causation. Consequently, Plaintiffs were required to produce Rule 26(a)(2)(B) reports to Defendants.