Opinion
Civil Action No. 01-674, Section "R"(2)
November 28, 2001
ORDER AND REASONS
Defendant Nintendo of America, Inc. moves this Court to review and reverse the Magistrate Judge's Order granting the plaintiffs' motion to quash the deposition of Dr. Deborah Lee. For the following reasons, the Magistrate Judge's order is AFFIRMED.
I. BACKGROUND
This case arises out of a products liability action brought by Lynette Benoit, individually and on behalf of her minor son, Kynan Hebert, against Nintendo of America, Inc. ("NOA"), Wal-Mart, Inc., and K-Mart Corporation. Plaintiffs allege, among other things, that after playing with NOA's product, Kynan Hebert developed epileptic seizures.
On August 8, 2001, NOA noticed the deposition of Kynan Hebert's treating neurologist, Dr. Deborah Lee. On August 22, 2001, the morning of Dr. Lee's scheduled deposition, plaintiffs filed a Motion to Quash her deposition on the grounds that plaintiffs' lead counsel, Wendell Gauthier, would be unable to attend. That same day, Magistrate Wilkinson conducted a hearing via telephone on the merits of motion. Although rejecting the arguments put forth by both sides, Magistrate Wilkinson, acting sua sponte, granted the plaintiffs' motion to quash on an alternate ground.
Relying upon the Federal Rules of Civil Procedure, as well as "the court's standard pretrial practice," Magistrate Wilkinson determined that Dr. Lee was required to submit a written report before her deposition was allowed to proceed. In his written order, Magistrate Judge Wilkinson also noted that the scheduling order requires treating physicians be treated as "experts for report and discovery purposes."
NOA now moves this Court to reverse the Magistrate's order on the grounds that Dr. Lee's testimony is not subject to the written report requirement of Federal Rule of Civil Procedure 26 because she is the child's treating physician.
II. DISCUSSION
A. Standard of Review
A magistrate judge may hear and determine any pretrial matter pending before a district court. 28 U.S.C. § 636(b)(1)(A). A district court employs a "clearly erroneous or contrary to law" standard to review the decision of a magistrate judge regarding a nondispositive matter. See 28 U.S.C. 636(b)(1)(A); FED. R. CIV. P. 72(a). This highly deferential standard requires the court to affirm the decision of the magistrate judge unless "on the entire evidence [the court] is left with a definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542 (1948).
B. Written Report Requirement
The proper procedure for deposing an expert witness is set forth in Federal Rule of Civil Procedure 26. Rule 26 provides in pertinent part, "[i]f a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided." FED. R. CIV. P. 26(a)(4)(A). Subdivision (a)(2)(B) requires written reports for only those expert witnesses "retained or specially. employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony . . ." FED. R. Civ. P. 26(a)(2)(B). The question of whether a treating physician falls. within this -category of experts depends on the type of opinion that the treating physician proposes to give. See e.g. Sullivan v. Clock, Inc., 175 F.R.D. 497, 500 (D. Md. 1997); Salas v. United States, 165 F.R.D. 31, 33 (W.D.N.Y. 1995); Wreath v. United States, 161 F.R.D. 448, 450 (D. Kan. 1995). The Advisory Committee Note to Rule 26(a)(2) points out that treating physicians are not required to provide a written report before being deposed or called to testify, but that the requirement of a written report can be mandated by an order. Specifically, the note to Rule 26(a)(2) provides:
The requirement of a written report in paragraph (2)(B), however, applies only to those experts who are retained or specifically employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony. A treating physician, for example can be deposed or called to testify at trial without any requirement of a written report. By local rule, order, or written stipulation, the requirement of a written report may be waived for particular experts or imposed upon additional persons who shall provide opinions under Rule 702 [of the Federal Rules of Evidence]. FED. R. CIV. P. 26 advisory committee note.
Additionally, treating physicians may be required to give an expert written report when the proposed opinion testimony extends beyond the facts made known to the physician during the course of the care and treatment of the patient, and the witness is specially retained to develop specific opinion testimony. See Wreath, 161 F.R.D. at 450; Hall v. Sykes, 164 F.R.D. 46, 48 (E.D. Va. 1995) ("if a physician, even though he may be a. treating physician, is specially retained or employed to render a medical opinion based upon factors that were not learned in the course of the treatment of the patient, then such a doctor would be required to present an expert written report."); Piper v. Harnischfeger Corp., 170 F.R.D. 173 (D.Nev. 1997) (same).
Under Local Rule 26.3E, the scope of disclosures under Federal Rule of Civil Procedure 26(a)(2) shall be directed by the court in the order issued after the preliminary conference. See Local Rule 26.3E. In this case, according to this Court's order of June 14, 2001, treating physicians are treated like experts for report and discovery purposes and written reports are required. See Scheduling Order, June 14, 2001, Rec. Doc. 13 at 2 ("Written reports of experts, including treating physicians, who may be witnesses for Plaintiffs fully setting forth all matters about which they will testify and the basis therefor shall be obtained and delivered to counsel for Defendants as soon as possible, but in no event later than 90 days prior to Final Pretrial Conference Date.). Accordingly, under the scheduling order, Dr. Lee is treated as an expert witness, and must submit a written report before being deposed under Rule 26(b)(4)(A). See FED. R. CIV. P. 26(b)(4)(A). Additionally, NOA does not contend that Dr. Lee will limit her opinions to information solely obtained from her observations conducted during the treatment of Kynan Hebert. Therefore, if Dr. Lee has been specially retained to render a medical opinion based on additional factors that were not learned in the course of treatment of the patient, she is properly deemed an expert required to present a written report under Rule 26(a)(2)(B). See Hall, 164 F.R.D. at 48. Finally, the scheduling order does not deprive NOA of an opportunity to depose Dr. Lee; it merely limits the circumstances under which it may do so. Thus, it does not appear to unduly burden either party. Accordingly, a review of the evidence presented does not leave this Court with a definite and firm conviction" that the Magistrate's decision was reached in error. United States Gypsum Co., 333 U.S. at 395, 68 S. Ct. at 542. The Court notes that the Advisory Committee note to Rule 26 permits the parties to waive the report requirement by written stipulation.
III. CONCLUSION
For the foregoing reasons, the Court AFFIRMS Magistrate Judge's Order Granting plaintiffs' Motion to Quash the deposition of Dr. Deborah Lee.