Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding D.C. No. 2:08-cv-00445-JAT
The opinion of the court was delivered by: Silverman, Circuit Judge:
Argued and Submitted December 6, 2010 San Francisco, California
Before: Robert E. Cowen,*fn1 A. Wallace Tashima, and Barry G. Silverman, Circuit Judges.
Opinion by Judge Silverman; Concurrence by Judge Tashima
Federal Rule of Civil Procedure 26(a)(2) requires a party to timely disclose a written report of a witness "if the witness is one retained or specially employed to provide expert testimony in the case . . . ." Generally speaking, treating physicians are excused from this requirement. They are a species of percipient witness. They are not specially hired to provide expert testimony; rather, they are hired to treat the patient and may testify to and opine on what they saw and did without the necessity of the proponent of the testimony furnishing a written expert report.
In this case, the plaintiff's treating doctors not only rendered treatment, but after the treatment was concluded, these very same doctors were provided with additional information by plaintiff's counsel and were asked to opine on matters outside the scope of the treatment they rendered. The district court ruled that these physicians would be allowed to testify to the opinions they formed in the course of caring for the patient, but because no Rule 26 expert witness report had been provided, the court precluded the treating doctors from testifying to opinions they formed afterward, opinions solicited from them solely for the purposes of the litigation.
We hold today that when a treating physician morphs into a witness hired to render expert opinions that go beyond the usual scope of a treating doctor's testimony, the proponent of the testimony must comply with Rule 26(a)(2). However, because the law regarding these hybrid experts was not settled, and because treating physicians are usually exempt from Rule 26(a)(2)'s requirements, we exercise our discretion to apply this clarification prospectively.
On the afternoon of May 9, 2007, Goodman and her business associate Jean Adams went to Staples in Scottsdale to purchase office supplies. The store was being remodeled, but it was open to the public. As she went to leave the store, Goodman turned a corner at the end of an aisle. She tripped on an "end cap" and fell.*fn2
Goodman remained lying on the floor until paramedics arrived at the store. She was never unconscious. The paramedics took her by ambulance to Scottsdale Healthcare Emergency Department, where she complained of head, neck, and foot pain and of tingling in her arm. Goodman told the ER doctor that she thought she hit her head on the floor when she fell. According to Scottsdale Healthcare records, a CT scan of Goodman's head and cervical spine showed no fractures or subluxations and showed that the fusion plates in her neck from a cervical spinal fusion surgery six weeks earlier remained intact. She was diagnosed with acute closed-head injury, neck pain, and left foot contusion, given a prescription for pain medication, and discharged with instructions to follow up with her physician back home in California.
Four days after the fall, Goodman went to the emergency room at Century City Doctors Hospital in Los Angeles, complaining of severe neck pain. An x-ray taken while Goodman was in the emergency room showed no fracture, subluxation, or swelling to her cervical spine. She stayed in the hospital for six days until the pain subsided.
A couple months later, on July 26, 2007, Goodman returned to the doctor in Los Angeles who had performed her spinal fusion surgery. She told the doctor she had experienced severe neck pain since her fall at Staples. An MRI and CT scan were obtained, which revealed a fracture line adjacent to the fusion plate. Goodman was admitted to the hospital and underwent fusion revision surgery on July 31, 2007. The surgeon's operative report states that magnification during surgery confirmed the fracture.
Over the next few months, despite treatment by a pain management specialist, Goodman's neck pain persisted. She was re-admitted to the hospital on January 17, 2008, and underwent another fusion revision surgery on January 22.
On February 7, 2008, Goodman filed a complaint against Staples in Maricopa County Superior Court. Goodman alleged that Staples negligently allowed an unreasonably dangerous condition to exist in their store, resulting in her fall over the end cap. Staples removed the case to federal court based on complete diversity between the parties.
The district court issued a scheduling order that established deadlines for the exchanges of initial disclosures and expert disclosures and set a discovery cut-off date. On May 21, 2008, Goodman provided Staples with her initial disclosures, identifying a number of her healthcare providers as potential witnesses. On November 7, 2008, the deadline for plaintiff expert disclosures, Goodman disclosed the identities and curricula vitae of two experts: Dr. Gary Bakken, a "human factors" expert, and Alex Balian, a store safety expert. She also provided a list of those of her healthcare providers whom she intended to call as expert witnesses. The list of providers included the name of the doctor or institution, the dates of service, and the bill amount. Goodman's disclosures did not include written reports by any experts.
A week later, after the deadline for her expert disclosures had already passed, Goodman disclosed two additional non- medical experts: Dr. Glenn Wilt, an economist, and Gretchen Bakkenson, a vocational consultant. This disclosure included the experts' contact information and one-paragraph summaries of the topics on which Goodman expected them to testify. The disclosures did not include the experts' written reports.
On February 13, 2009, the deadline for defense expert disclosures, Staples disclosed the identity and written reports of three experts: Dr. William Horsley, a radiologist; Dr. Zoran Maric, a spine ...