United States District Court, E.D. Louisiana
PAUL GOBERT, JR.
ATLANTIC SOUNDING ET AL.
ORDER AND REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE
the Court is defendant Weeks Marine's
objection that Dr. Berliner, plaintiff's
treating physician, should not be permitted to testify as to
the expected cost of a future surgery that Dr. Berliner is
recommending. For the following reasons, Weeks Marine's
objection is denied in part and deferred in part.
proposes to have Dr. Berliner testify as to the expected cost
of a future surgery Dr. Berliner is proposing. Dr.
Berliner's testimony as to the likely cost of the surgery
is based on information he catalogs and keeps up to date so
as to be able to advise patients of potential surgical costs.
R. Doc. No. 97-1, at 8. The proposed testimony includes
estimates for such costs as the surgeon (Dr. Berliner), the
anesthesiologist, the hospital, medications, etc. Dr.
Berliner's estimate is reflected in the plaintiff's
medical records, R. Doc. No. 98-1, at 3, and Dr. Berliner
“typically” provides such estimates to all of his
patients, R. Doc. No. 98-2, at 3.
Marine's objection is based on what it claims is a
violation of Federal Rule of Civil Procedure
26(a)(2)(B). While Weeks Marine has no problem with
permitting Dr. Berliner to testify as to his treatment of
plaintiff, Weeks Marine argues that an expert report was
required if plaintiff intended to have Dr. Berliner testify
as to information he received from sources other than the
plaintiff. Weeks Marine argues that Dr. Berliner's costs
estimates are inadmissible because they do not come from Dr.
Berliner's personal knowledge, but instead from other
doctors and facilities. R. Doc. No. 98, at 2.
expert need not invariably submit an expert report before the
expert can testify as to information the expert received from
any outside source. “A treating physician . . . can be
deposed or called to testify at trial” as an expert
“without any requirement for a written report, ”
Fed.R.Civ.P. 26 advisory committee's note to 1993
amendment, pursuant to Federal Rule of Civil Procedure
26(a)(2)(C). Rule 26(a)(2)(C) contemplates that treating
physicians can present evidence under Federal Rule of
Evidence 703. See Fed. R. Civ. P.
26(a)(2)(C)(i)-(ii) (indicating party should provide
“the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or
705” as well as “a summary of the facts and
opinions to which the witness is expected to testify”).
In turn, Federal Rule of Evidence 703 licenses an expert to
“base an opinion on facts or data in the case that
the expert has been made aware of or personally
observed. If experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on
the subject, they need not be admissible for the opinion to
be admitted.” Fed.R.Evid. 703 (emphasis added).
Therefore, Rule 26(a)(2)(C) establishes that witnesses are
not limited to testifying solely on the basis of their
personal knowledge (i.e., testimony permissible
under Federal Rule of Evidence 701). See, e.g.,
Williams v. Louisiana, No. 14-154, 2015 WL 5438596,
at *2 (M.D. La. 2015); LaShipp, LLC v. Hayward Baker,
Inc., 296 F.R.D. 475, 480 (E.D. La. 2013) (“[T]he
Court wants to be sure that going forward its prior opinion
in this case is not construed to require, or to understand,
that 26(a)(2)(C) witnesses only testify to their personal
recognizing that the testimony of a 26(a)(2)(C) witness is
not limited strictly to the witness's personal knowledge,
however, courts have struggled to draw the precise line as to
what a testifying physician may testify to without providing
an expert report. Cf. Fielden v. CSX Transp., Inc.,
482 F.3d 866, 871 (6th Cir. 2007) (“Courts drawing this
line have considered a variety of factors.”). Some
cases, for example, have suggested that treating physicians
cannot testify as to “future medical treatment”
or its costs. See, e.g., Martin v. Nabors,
No. 00-3284, 2002 WL 34359734, at *3 (E.D. La. 2002)
(explaining that “when the physician's proposed
opinion testimony extends beyond the facts made known to him
during the course of the care and treatment of the patient
and the witness is specially retained to develop specific
opinion testimony, he becomes subject to the provisions of
Fed.R.Civ.P. 26(a)(2)(B), ” and concluding “[a]s
to any expert opinion beyond the past and current treatment
of the plaintiff (i.e., the cost and necessity of future
medical care), [the witness's] testimony is limited to
his reports and records which were timely exchanged.”).
those cases are drafted too broadly. See, e.g.,
Crabbs v. Wal-Mart Stores, Inc., No. 09-519, 2011 WL
499141, at *2 (S.D. Iowa 2011) (“A per se rule
excluding certain kinds of opinions in the absence of a
report sweeps too broadly.”). The Federal Rules do not
distinguish between Rule 26(a)(2)(B) and Rule 26(a)(2)(C)
experts on the basis of whether that expert is testifying as
to the future or the past. Instead, they distinguish between
a Rule 26(a)(2)(B) and Rule 26(a)(2)(C) expert based on
whether the witness was “one retained or specially
employed to provide expert testimony.” Fed.R.Civ.P.
26(a)(2)(B). Rather than focusing on the content of
the opinion, Rule 26 suggests that a court should focus on
what the expert was doing when the expert formulated
the opinion at issue.
Court therefore agrees with the view that Rule 26(a)(2)(C)
permits an expert to testify as to opinions that “were
formed during the course of treatment.” Goodman v.
Staples the Office Superstore, LLC, 644 F.3d 817, 826
(9th Cir. 2011). Accordingly, testimony regarding the future
implications of an injury or future medical treatment more
generally can be permissible provided that the opinion
was formed by the treating physician during treatment.
See, e.g., Banister v. Burton, 636 F.3d
828, 832-833 (7th Cir. 2011); Anders v. Hercules Offshore
Servs., 311 F.R.D. 161, 165 n.17 (E.D. La. 2015);
Williams v. Regus Mgmt. Group, LLC, No. 10-8987,
2012 WL 1711378, at *3 (S.D.N.Y. 2012). To be clear, however,
the Court stresses that a physician is not engaged in a
course of treatment if, for example, the physician is forming
opinions based on expert reports that were prepared for the
purposes of litigation. See, e.g., Goodman,
644 F.3d at 826 (“Goodman specifically retained a
number of her treating physicians to render expert testimony
beyond the scope of the treatment rendered; indeed, to form
their opinions, these doctors reviewed information provided
by Goodman's attorney that they hadn't reviewed
during the course of treatment.”). Such opinions would
have to be disclosed in an expert report.
record here establishes that Dr. Berliner formed his opinions
during the course of treatment. See, e.g.,
Boudreaux v. J.P. Morgan Chase & Co., No 07-555,
2007 WL 4162908, at *3 (E.D. La. 2007) (“Even the
information about the future surgeries . . . are most likely
learned from this doctor's treatment of the
plaintiff.”). First, the record substantiates that Dr.
Berliner “typically” provides such estimates to
all of his patients as part of their treatment. R. Doc. No.
98-2, at 3. Second, the cost estimate regarding the
recommended surgery is explicitly disclosed in
plaintiff's medical records. R. Doc. No. 98-1, at 3.
Indeed, advising patients as to the cost and benefits of
various surgical procedures would seem to both be a core part
of a surgeon's practice as well as a core reason
individuals seek medical advice. Therefore, Dr.
Berliner's opinion regarding the likely cost of the
surgery he was recommending was formed during treatment.
Compare Meyers v. Nat'l R.R. Passenger Corp.,
619 F.3d 729, 735 (7th Cir. 2010) (“[Plaintiff]
presents no evidence, and we find none in the record,
suggesting that either doctor previously considered or
determined the cause of [Plaintiff]'s injuries during the
course of treatment.”). Dr. Berliner's proposed
testimony as to the likely cost of the surgery he is
recommending does not violate Rule 26(a)(2)(B).
Court defers the question of the reliability of the proposed
testimony until trial. The reliability of the proposed
testimony will turn on a number of factors such as the
methodology Dr. Berliner uses to arrive at his estimates,
whether Dr. Berliner keeps his estimates up-to-date (though
any such error may result in the estimate being too low
rather than too high), and whether Dr. Berliner will actually
perform the surgery. Therefore, the Court will be better
situated to resolve the parties' dispute at trial.
IT IS ORDERED that Weeks Marine's objection is DENIED IN
PART and DEFERRED IN PART. No mention shall be made of the
costs of the proposed surgery before the jury unless the
Court permits the same following a bench conference.