The choice in Burton v. AbbVie, Inc., 2024 WL 3207008 (C.D. Cal. Feb. 21, 2024), offered an fascinating, if considerably arcane, discovery query: whether or not a plaintiff’s treating doctor, listed as solely an “un-retained” percipient witness for which no professional report is required below Fed. R. Civ. P. 26(a)(2)(C), will be deposed throughout the time period {that a} court docket’s scheduling order gives solely for “professional” discovery. Burton held that was correct below the principles:
Plaintiff’s disclosure of [several treaters] as non-retained consultants . . . cuts in opposition to her argument that these medical doctors are solely percipient witnesses. Moreover, whereas Plaintiff asserts that the treating physicians will solely testify to remedy given previously and what could also be wanted sooner or later, the Courtroom notes that this testimony will inherently require the physicians to depend on their medical coaching to opine on what future remedy could also be wanted. Accordingly, this Courtroom joins the opposite district courts on this circuit to discover {that a} treating doctor, by advantage of their coaching and talent, can also be correctly thought-about an professional witness. Subsequently, Defendants are free to depose [the treaters] throughout professional discovery.
2024 WL 3207008, at *3 (no citations omitted) (emphasis added). Plaintiff supplied “no authority” for her opposite argument, and the “handful of unpublished circumstances” the defendant cited aren’t talked about within the Burton opinion. So we determined to have a look.
We begin with Fed. R. Civ. Proc. 26(b)(4), offering that “[a] occasion could depose any one who has been recognized as an professional whose opinions could also be offered at trial.” As Burton observes, “[t]reating physicians are usually thought-about consultants, who would give testimony below Federal Rule of Proof 702.” 2024 WL 3207008, at *3 (quoting Erhart v. Bofl Holding, Inc., 2018 WL 4961513, at *4 (S.D. Cal. Oct. 12, 2018)). However Erhart concerned a dispute over an impartial medical examination, not depositions.
The problem was reached in Thai v. County of Los Angeles, 2022 WL 2392461, at *3 (S.D. Cal. July 1, 2022), the place plaintiffs claimed that the defendant couldn’t depose their treating physicians when the time for strange discovery, however not professional discovery, had run. Percipient professional witnesses – treating physicians – had been nonetheless “consultants.” Plaintiffs couldn’t disclose “solely probably the most generic, unhelpful description of the subject material on which every supplier is predicted to current proof,” however then flip round and in addition deny professional depositions of the identical witnesses.
[I]t is evident that Plaintiffs can’t have it each methods. In the event that they wish to need the 5 treating physicians to testify relating to their medical opinions that will be thought-about professional opinions below Rule 702, they should be disclosed as detailed in Rule 26(a)(2)(C). The way in which that they’ve been disclosed up to now − by way of supplemental preliminary disclosures and interrogatory responses − doesn’t meet Rule 26(a)(2)(C)’s necessities. Conversely, if Plaintiffs are not looking for the treating physicians to testify relating to medical opinions that will be thought-about professional opinions below Rule 702, they should be ready to restrict the testimony as such or threat in limine motions that will exclude sure testimony.
Id. at *4.
The identical kind of dispute was resolved in the identical style in Jones v. USF Holland, Inc., 2009 WL 928732 (E.D. Ark. April 3, 2009). Treaters, even these solely testifying to their medical remedy, will be deposed as a part of professional discovery:
What’s clearer is {that a} treating doctor is thought to be an professional even when she or he testifies as to remedy. Given the events’ stipulation to increase professional discovery . . ., the court docket finds that the scheduled depositions of the treating physicians are well timed.
Jones v. USF Holland, Inc., 2009 WL 928732, at *1 (E.D. Ark. Apr. 3, 2009) (citations omitted). Equally, in C.R. v. PLB Administration LLC, 2022 WL 228702751 (C.D. Cal. June 29, 2022), a declare that deposition subpoenas for “non-retained consultants” had been “late” failed as a result of “the professional discovery deadline” had not expired. Id. at *1. One other direct assertion to the identical impact occurred in Goon v. Moran Meals, Inc., 2011 WL 13552273 (N.D. Sick. Might 27, 2011), directing that “the depositions of plaintiff’s treating physicians and treating bodily therapists needn’t proceed previous to the shut of truth discovery,” however “[i]nstead, these depositions ought to proceed throughout professional discovery.” Id. at *2.
That treaters had been correctly seen as “consultants” was additionally inherent in Western Riverside Council v. Nationwide Union Fireplace Insurance coverage Co., 2022 WL 4596663, at *3 (C.D. Cal. July 12, 2022). In Western Riverside, the plaintiff – sure, this proposition can lower each methods – was allowed to re-depose treaters as “consultants,” regardless of their having already been deposed as truth witnesses, after the defendant listed them as non-retained consultants. See additionally 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 consultants as a result of they may have been deposed “whereas professional discovery was nonetheless open”); Corridor v. Walgreens Co., 2022 WL 18806276, at *2 (S.D. Cal. Nov. 30, 2022) (criticizing occasion’s failure to determine non-retained consultants till shortly “earlier than the professional discovery cutoff date”); Hebert v. Ascension Parish College Board, 2018 WL 11395456, at *2 (M.D. La. Dec. 6, 2018) (treating physicians not required to file a report back to be deposed throughout “professional discovery”); Bookhamer v. Sunbeam Merchandise, Inc., 2012 WL 6000230, at *3 (N.D. Cal. Nov. 30, 2012) (ruling that “professional discovery shall stay open for the aim of permitting Defendant to depose . . . non-retained consultants chosen by Plaintiffs”; implicitly holding that such witnesses had been “consultants” for functions of Rule 26(a)); Edwards v. Nike Retail Companies, Inc., 2012 WL 5398442, at *2 (E.D. Cal. Nov. 2, 2012) (describing “professional discovery” because the interval “to depose consultants and treating physicians”).
However, as is usually the case, the bulk rule isn’t unanimous. The ruling went the opposite manner in Piepes v. Nai Leisure Holdings LLC, 2019 WL 13224982 (E.D.N.Y. Jan. 29, 2019), with the defendants being prohibited from taking treating doctor depositions throughout “professional discovery.”
[The treaters] are truth witnesses that Plaintiff recognized in preliminary disclosures. The Courtroom isn’t persuaded by Defendants’ argument that they are going to be “ambushed” by the medical doctors’ testimony at trial, since Defendants selected to not depose them throughout truth discovery regardless of a number of extensions of discovery deadlines. Defendants could not achieve this now, since truth discovery has been closed. . . . Certainly, at no time have Defendants moved to reopen truth discovery, and the Courtroom has indicated a number of occasions that the one remaining part of the case is professional discovery.
Id. at *2.
It strikes us as considerably odd that so most of the choices on whether or not depositions of non-retained treating physicians are correctly a part of “professional discovery” versus “truth discovery” are – like Burton – from California courts. If there’s a cause that California federal follow is completely different, we didn’t see it. We carried out nationwide analysis and, excluding Piepes, all federal courts got here to the identical conclusion, that such depositions throughout “professional discovery” are permitted.
Completely satisfied holidays to all, and to all evening.
