The decision in Burton v. AbbVie, Inc., 2024 WL 3207008 (C.D. Cal. Feb. 21, 2024), presented an interesting, if somewhat arcane, discovery question: whether a plaintiff’s treating physician, listed as only an “un-retained” percipient witness for which no expert report is required under Fed. R. Civ. P. 26(a)(2)(C), can be deposed during the period of time that a court’s scheduling order provides solely for “expert” discovery. Burton held that was proper under the rules:
Plaintiff’s disclosure of [several treaters] as non-retained experts . . . cuts against her argument that these doctors are only percipient witnesses. Furthermore, while Plaintiff asserts that the treating physicians will only testify to treatment given in the past and what may be needed in the future, the Court notes that this testimony will inherently require the physicians to rely on their medical training to opine on what future treatment may be needed. Accordingly, this Court joins the other district courts in this circuit to find that a treating physician, by virtue of their training and skill, is also properly considered an expert witness. Therefore, Defendants are free to depose [the treaters] during expert discovery.
2024 WL 3207008, at *3 (no citations omitted) (emphasis added). Plaintiff offered “no authority” for her contrary argument, and the “handful of unpublished cases” the defendant cited are not mentioned in the Burton opinion. So we decided to take a look.
We start with Fed. R. Civ. Proc. 26(b)(4), providing that “[a] party may depose any person who has been identified as an expert whose opinions may be presented at trial.” As Burton observes, “[t]reating physicians are typically considered experts, who would give testimony under Federal Rule of Evidence 702.” 2024 WL 3207008, at *3 (quoting Erhart v. Bofl Holding, Inc., 2018 WL 4961513, at *4 (S.D. Cal. Oct. 12, 2018)). But Erhart involved a dispute over an independent medical examination, not depositions.
The issue was reached in Thai v. County of Los Angeles, 2022 WL 2392461, at *3 (S.D. Cal. July 1, 2022), where plaintiffs claimed that the defendant could not depose their treating physicians when the time for ordinary discovery, but not expert discovery, had run. Percipient expert witnesses – treating physicians – were still “experts.” Plaintiffs could not disclose “only the most generic, unhelpful description of the subject matter on which each provider is expected to present evidence,” but then turn around and also deny expert depositions of the same witnesses.
[I]t is clear that Plaintiffs cannot have it both ways. If they want to want the five treating physicians to testify regarding their medical opinions that would be considered expert opinions under Rule 702, they must be disclosed as detailed in Rule 26(a)(2)(C). The way that they have been disclosed so far − through supplemental initial disclosures and interrogatory responses − does not meet Rule 26(a)(2)(C)’s requirements. Conversely, if Plaintiffs do not want the treating physicians to testify regarding medical opinions that would be considered expert opinions under Rule 702, they must be prepared to limit the testimony as such or risk in limine motions that would exclude certain testimony.
Id. at *4.
The same type of dispute was resolved in the same fashion in Jones v. USF Holland, Inc., 2009 WL 928732 (E.D. Ark. April 3, 2009). Treaters, even those only testifying to their medical treatment, can be deposed as part of expert discovery:
What is clearer is that a treating physician is regarded as an expert even if he or she testifies as to treatment. Given the parties’ stipulation to extend expert discovery . . ., the court finds that the scheduled depositions of the treating physicians are timely.
Jones v. USF Holland, Inc., 2009 WL 928732, at *1 (E.D. Ark. Apr. 3, 2009) (citations omitted). Similarly, in C.R. v. PLB Management LLC, 2022 WL 228702751 (C.D. Cal. June 29, 2022), a claim that deposition subpoenas for “non-retained experts” were “late” failed because “the expert discovery deadline” had not expired. Id. at *1. Another direct statement to the same effect occurred in Goon v. Moran Foods, Inc., 2011 WL 13552273 (N.D. Ill. May 27, 2011), directing that “the depositions of plaintiff’s treating physicians and treating physical therapists need not proceed prior to the close of fact discovery,” but “[i]nstead, those depositions should proceed during expert discovery.” Id. at *2.
That treaters were properly viewed as “experts” was also inherent in Western Riverside Council v. National Union Fire Insurance Co., 2022 WL 4596663, at *3 (C.D. Cal. July 12, 2022). In Western Riverside, the plaintiff – yes, this proposition can cut both ways – was allowed to re-depose treaters as “experts,” despite their having already been deposed as fact witnesses, after the defendant listed them as non-retained experts. See also Mollica v. County of Sacramento, 2023 WL 6723395, at *4 (E.D. Cal. Oct. 12, 2023) (imposing lesser sanctions for belated disclosure of treating physicians as experts because they could have been deposed “while expert discovery was still open”); Hall v. Walgreens Co., 2022 WL 18806276, at *2 (S.D. Cal. Nov. 30, 2022) (criticizing party’s failure to identify non-retained experts until shortly “before the expert discovery cutoff date”); Hebert v. Ascension Parish School Board, 2018 WL 11395456, at *2 (M.D. La. Dec. 6, 2018) (treating physicians not required to file a report to be deposed during “expert discovery”); Bookhamer v. Sunbeam Products, Inc., 2012 WL 6000230, at *3 (N.D. Cal. Nov. 30, 2012) (ruling that “expert discovery shall remain open for the purpose of allowing Defendant to depose . . . non-retained experts selected by Plaintiffs”; implicitly holding that such witnesses were “experts” for purposes of Rule 26(a)); Edwards v. Nike Retail Services, Inc., 2012 WL 5398442, at *2 (E.D. Cal. Nov. 2, 2012) (describing “expert discovery” as the period “to depose experts and treating physicians”).
But, as is often the case, the majority rule is not unanimous. The ruling went the other way in Piepes v. Nai Entertainment Holdings LLC, 2019 WL 13224982 (E.D.N.Y. Jan. 29, 2019), with the defendants being prohibited from taking treating physician depositions during “expert discovery.”
[The treaters] are fact witnesses that Plaintiff identified in initial disclosures. The Court is not persuaded by Defendants’ argument that they will be “ambushed” by the doctors’ testimony at trial, since Defendants chose not to depose them during fact discovery despite multiple extensions of discovery deadlines. Defendants may not do so now, since fact discovery has been closed. . . . Indeed, at no time have Defendants moved to reopen fact discovery, and the Court has indicated multiple times that the only remaining phase of the case is expert discovery.
Id. at *2.
It strikes us as somewhat odd that so many of the decisions on whether depositions of non-retained treating physicians are properly part of “expert discovery” as opposed to “fact discovery” are – like Burton – from California courts. If there’s a reason that California federal practice is different, we didn’t see it. We conducted nationwide research and, with the exception of Piepes, all federal courts came to the same conclusion, that such depositions during “expert discovery” are permitted.
Happy holidays to all, and to all a good night.