Virginia Lawyers Weekly

A doctor who got a referral from and was paid by a p.i. plaintiff’s lawyer cannot testify for plaintiff after failing to file an expert report under Rule 26(a)(2)(B), and the Norfolk U.S. District Court also applies Daubert to exclude causation and prognosis testimony of an orthopedic surgeon.

In general, a treating physician is not a specially retained expert. This court has recognized, for example, that an expert written report is not necessarily required when a treating physician receives compensation for their time in attending a deposition, writing a letter summarizing treatment, or testifying at trial. If a treating physician forms an opinion of an injury during the ordinary treatment of the patient, the physician may express this opinion without disclosing a written report. When an attorney refers a client to a physician, however, such a reference raises the appearance that the physician was specially retained to provide expert opinion.

Although plaintiff denies that her attorney referred her to Dr. Harold Cloud, the evidence overwhelmingly indicates that Dr. Cloud was specially retained for litigation. First, the timing raises suspicion. The accident took place on June 8, 2005, but plaintiff did not begin treatment with Dr. Cloud until June 15, 2005, the day after she signed a retainer agreement with her attorney. Second, plaintiff executed a written agreement with Dr. Cloud that established he was not her primary care physician and was only treating her for injuries sustained in the accident and while litigation was pending. Further, Dr. Cloud did not bill plaintiff or a medical insurance provider, but billed plaintiff’s attorney. The facts raise the appearance that Dr. Cloud was specially retained to provide expert opinion. The failure of Dr. Cloud to provide an expert report constitutes a violation of Fed. R. Civ. P. 26(a)(2)(B).

Although plaintiff argues that Dr. Cloud’s deposition cured any surprise or prejudice, Dr. Cloud equivocated on facts that should have been presented in an expert written report and belabored the deposition to the tune of $1,250. The court orders that Dr. Cloud’s testimony, in its entirety, shall be excluded for all purposes.

The court also will exclude testimony from Dr. Arthur Wardell, orthopedic surgeon, for failure to meet the Daubert test. First, Dr. Wardell’s opinion of the causation of plaintiff’s injuries is based solely on plaintiff’s self-report that the injuries were caused by the accident. In supporting a decision to exclude Dr. Wardell’s testimony in another case, Bowers v. Norfolk Southern Corp., 537 F. Supp. 2d 1343 (M.D. Ga. 2007), the court held that merely adopting a patient’s theory of causation fails the fourth of the factors laid out by the Advisory Committee to the 2000 Amendments to Fed. R. Evid. 702.

Second, Dr. Wardell did not adequately investigate plaintiff’s relevant medical history, but took her self-report at face value. At the time of forming his medical opinion of plaintiff, Dr. Wardell was not aware of plaintiff’s two prior motor vehicle accidents, falls in 1997 and 2000, 2004 injury to her right arm and trapezius muscle and an emergency room visit for left knee pain and swelling one month prior to the subject accident here. Dr. Wardell also did not know plaintiff’s prior medication history or recommendations for treatment.

Third, Dr. Wardell fails to consider alternative explanations for plaintiff’s injuries, or to consider the impact of her obesity.

Dr. Wardell may testify at trial on his treatment of plaintiff, but his testimony is not admissible regarding causation of plaintiff’s injuries or the prognosis of future medical costs.

The district court accepts the report and recommendation of the U.S. magistrate judge.

Perkins v. U.S. (Miller, Doumar) No. 4:08cv50, June 16, 2009; USDC at Norfolk, Va.; James P. St.Clair for plaintiff; Kent P. Porter for the government. VLW 009-3-347, 16 pp.

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