Barack v. American Honda Motor Co. Inc.
A party's failure to disclose a summary for a treating doctor under Federal Rule of Civil Procedure 26(a)(2)(C) can violate Rule 26(a), and a court can order sanctions. The plaintiff, Ron Barack, filed a product-liability suit against the defendant, American Honda Motor Co. Inc. On July 21, the plaintiff, who allegedly suffered from post traumatic stress disorder and depression, disclosed psychologist Sabrina Breed, as a treating doctor. The defendant filed a motion to preclude the doctor's testimony and treatment records. A party must disclose the identity of a treating doctor, pursuant to Federal Rule of Evidence 702. A treating doctor need not be explicitly designated as an "expert witness." Treating doctors may testify about opinions formed during treatment, including causation, severity, disability, permanency and future impairments, pursuant to Williams v. Regus Management Group, a 2012 decision of the Southern District of New York. Like other fact witnesses, a treating doctor can provide opinion about the plaintiff's condition and emotional damages. "The party seeking to use the treating physician," wrote the court, "does not . . . need to provide a written expert report under Rule 26(a)(2)(B) because treating physicians are not `retained or specially employed to provide expert testimony.' " The party is required to disclose more than the treating doctor's identity. At a minimum, the plaintiff is required to produce a summary of facts and opinions to which the doctor is expected to testify. The District Court found that the plaintiff's July 21, 2011, disclosure of Dr. Breed, "in threadbare fashion," as a treating doctor, was filed timely, one day prior to the July 22 deadline for fact discovery. The court was concerned that the plaintiff's last-minute disclosure "sandbagged" the defendant. Also, the plaintiff's response to interrogatories did not include a summary of the facts and opinions to which Dr. Breed is expected to testify. The plaintiff's failure to disclose the summary, pursuant to Rule 26(a)(2)(C), violated Rule 26(a). The court scheduled a hearing to consider sanctions and ordered the plaintiff to file a summary within 14 days. Absent a force majeure, the court will not grant an extension.