POWELL
v.
GOODROW
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A treating physician may testify as an expert witness without a Rule 26(a)(2)(B) report if their opinions are solely derived from treatment, but the court reserves ruling on the admissibility of specific testimony pending trial.
Defendants moved to exclude medical records and testimony from plaintiff's treating physician, arguing he was not properly disclosed as an expert. Pla…
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“In determining whether a Rule 26(a)(2)(B) report is required, the label of ‘treating physician’ is irrelevant; instead, the determination turns on the substance of the physician’s testimony.” Blakely v. Safeco Ins. Co. of Illinois, No. 6:13-CV-796- ORL-37, 2014 WL 1118071, at *2-3 (M.D. Fla. Mar. 20, 2014) (internal quotations and citations omitted). “[I]f a treating physician acquired the opinions that are the subject of the testimony directly through treatment of the plaintiff, the treating physician cannot be forced to file a written report required by Rule 26(a)(2)(B).”
Rementer v. United States, No. 8:14-CV-642-T-17MAP, 2015 WL 5934522, at *5 (M.D. Fla. Oct. 9, 2015) (internal quotations and citations omitted). “Because a treating physician considers not only the plaintiff’s diagnosis and prognosis, opinions as to the cause of injuries do not require a written report if based on the examination and treatment of the patient.” Id. “Treating physicians commonly consider the cause of any medical condition presented in a patient, the diagnosis, the prognosis, and the extent of disability, if any, caused by the condition or injury.” Id. “But, if a health care professional is asked to give any additional opinions, beyond those procured directly from treatment, then for those additional opinions to be admissible, Plaintiff must first provide the full written disclosures required by Rule 26(a)(2)(B).” Blakely, 2014 WL 1118071, at *3. Powell disclosed Dr. Stellar as a fact witness under Rule 26(a)(2). Because Dr. Stellar was not retained or specially employed to provide expert testimony, he does not have to provide the detailed written reports required by Rule 26(a)(2)(B), unless he is asked to give opinions beyond those procured directly from treatment of Powell. Dr. Stellar may testify about the cause of Powell’s injuries, his diagnosis, and his prognosis, if his testimony is based on his examination and treatment of Powell. At this time, the court cannot determine whether Dr. Stellar’s anticipated testimony is based on examination and treatment. If Dr. Stellar’s testimony at trial is not sufficiently related to the information obtained during Powell’s examination and treatment, the defendants may make appropriate objections and motions.
B. Powell’s motion in limine The parties agree to exclude references to Mr. Alam’s possession of marijuana unless other trial testimony opens the door. (Doc. 60). If testimony opens the door to this evidence, the defendants may make appropriate objections and motions at sidebar. It is ORDERED that:
1. The defendants’ motion in limine (Doc. 55) is DENIED without prejudice. 2. Powell’s motion in imine (Doc. 57) is GRANTED as stated above. ENTERED in Tampa, Florida on November 19, 2019.
Aranda. Arno Sasone_
AMANDA ARNOLD SANSONE
United States Magistrate Judge