Stone v. United States of America, et al
ORDER AND REASONS denying 66 Motion in Limine to Exclude Dr. Daniel Trahant's Expert Testimony For Failure to File Report Or, Alternatively, to Limit the Testimony of Dr. Trahant. Signed by Judge Susie Morgan on 5/9/2017. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SUSAN STONE, ET AL.
UNITED STATES OF AMERICA
SECTION: “E” (5)
ORDER AND REASONS
Before the Court is a motion in limine to preclude Dr. Daniel Trahant from offering
certain testimony at the bench trial of this case. 1 The motion is opposed. 2 For the reasons
that follow, the motion in limine is DENIED.
Plaintiffs’ claims arise under the Federal Tort Claims Act (“FTCA”). 3 On September
7, 2012, Plaintiff Susan Stone (“Stone”) saw Dr. Cynthia Caldwell at the St. Charles
Community Health Center because of a lost filling in her tooth.4 Dr. Caldwell
recommended the tooth be extracted and determined Stone needed a root canal therapy. 5
The Plaintiffs allege that, despite the presence of an infection and the recommendation
for a root canal, Dr. Caldwell did not prescribe Stone any antibiotics. 6
Dr. Caldwell performed the tooth extraction on September 18, 2012. 7 On
September 21, Stone called Dr. Caldwell’s office complaining of pain and asked why she
was not given antibiotics. 8 The office informed Stone antibiotics were not necessary. 9
R. Doc. 66.
R. Doc. 71.
3 R. Doc. 1.
4 Id. at 5.
8 Id. at 6.
On September 25, 2012, Stone saw Dr. Caldwell again because of continued pain. 10
An oral examination revealed that bone was exposed. Dr. Caldwell “agitated the area until
blood formed in the socket and placed dry socket paste on the area.” No antibiotics were
Stone alleges she continues to experience pain and neurological deficits for which
she continues to receive treatment and incur medical expenses. 12
Plaintiffs filed this suit against Dr. Caldwell and the St. Charles Community Health
Center, as well as the United States (“USA” or “Government”) and the U.S. Dept. of Health
and Human Services. 13 Plaintiffs allege at all material times, Dr. Caldwell was in the
course and scope of her employment with the St. Charles Community Health Center, an
eligible health care center under the jurisdiction and/or supervision of the United States
and/or the U.S. Department of Health and Human Services. 14 Plaintiffs allege that Dr.
Caldwell deviated from the standard of care in failing to prescribe antibiotics and to take
measures to lessen or prevent Stone’s injuries.
After filing suit, Stone was treated three times by Dr. Daniel Trahant, a
neurologist. 15 The Plaintiffs have designated Dr. Trahant as a “treating physician” witness
under Rule 26(a)(2)(C). 16 In the pre-trial order, the Plaintiffs state he “will testify
regarding his treatment of and his observations regarding Ms. Stone.” 17 The Plaintiffs
represent that Dr. Trahant was not retained as an expert witness, and for this reason, he
12 Id. at 8.
13 Id. at 10.
15 See R. Doc. 66-2.
16 R. Doc. 60 at 9.
did not prepare a Rule 26 expert report. Dr. Trahant was deposed on September 28,
The Government seeks to preclude Dr. Trahant from offering certain testimony at
trial. 19 The Government argues Dr. Trahant “is not a treating physician but one retained
or specially employed to provide expert testimony in this case.” 20 According to the
Government, during Dr. Trahant’s deposition, he gave an opinion regarding causation
based on his review of dental records of Dr. Caldwell, Dr. Bastian, Dr. Indovina, and Dr.
Harris, and of the expert reports of Dr. Guey and Dr. Crowley. 21 Dr. Trahant, however,
did not prepare a written expert report, which the Government contends is required by
Rule 26(a)(2)(B) before he may be allowed to express his opinion regarding causation. 22
For that reason, the Government contends Dr. Trahant’s testimony should be stricken, or
alternatively, should be limited to his personal knowledge of his treatment of Ms. Stone. 23
LAW AND ANALYSIS
The admissibility of expert opinion testimony is governed by Federal Rule of Civil
Procedure 26. Rule 26(a)(2)(B) provides that, “if the witness is one retained or specially
employed to provide expert testimony in the case,” the witness must prepare and sign a
written expert report that includes, inter alia, a “complete statement of all opinions the
witness will express and the basis and reasons for them.” Rule 26 contemplates, however,
that some witnesses who offer expert testimony, but were not specifically retained to do
so, need not prepare an expert report. This latter category of witnesses, who are often
R. Doc. 66-3.
R. Doc. 66.
20 Id. at 1.
21 R. Doc. 66-1 at 2.
23 R. Doc. 66.
referred to as “non-retained experts,” includes treating physicians. 24 In fact, it is well
accepted that “[t]reating physicians are not required to submit an expert report under
Rule 26.” 25 Without having to provide an expert report, “[a] treating physician may testify
to his opinions about a plaintiffs injuries if his testimony is based on knowledge acquired
during the course of his treatment of the plaintiff.” 26 However, where a physician’s
testimony “relies on sources other than those utilized in treatment, courts have found that
the treating physician acts more like an expert and must submit a report under Rule
26(a)(2)(B).” 27 Some courts have noted that the “relevant question” is whether the
“treating physicians acquired their opinions . . . directly through their treatment of the
plaintiff.” 28 A court in the Western District of New York defined the distinction between
retained experts and treating physicians as follows:
Experts are retained for purposes of trial and their opinions are based on
knowledge acquired or developed in anticipation of litigation or for trial. A
treating physician’s testimony, however, is based on the physician[’]s
personal knowledge of the examination, diagnosis and treatment of a
patient and not from information acquired from outside sources. 29
24 See, e.g., Rea v. Wisconsin Coach Lines, Inc., No. 12-1252, 2014 WL 4981803, at *2–3 (E.D. La. Oct. 3,
25 Butler v. Louisiana, No. 12-00420-BAJ-RLB, 2014 WL 7186120, at *2 (M.D. La. Dec. 16, 2014) (citing
FED. R. CIV. P. 26(a)(2)(B) advisory committee’s notes, 1993 amendment (treating medical professionals
may be “called to testify at trial without any requirement for a written report)). “A written report is . . . not
required for a treating physician whose testimony and opinions derive from information learned during
actual treatment of the patient, rather than from subsequent evaluation as a specially retained expert.”
Knorr v. Dillard’s Store Servs., Inc., No. Civ.A. 04-3208, 2005 WL 2060905, at *3 (E.D. La. Aug. 22, 2005)
(citing Gray v. Vastar Offshore, Inc., No. Civ.A. 04-1162, 2005 WL 399396, at *1 (E.D. La. Feb. 14, 2005)).
26 Knorr, 2005 WL 2060905, at *3. “A number of courts [have] determined that a treating physician may
offer testimony as a non-retained expert if the testimony is confined to those facts or data the physician
learned during actual treatment of the plaintiff.” Rea, 2014 WL 4981803, at *2 (citing Morgan v. Chet
Morrison Contractors, Inc., No. 04-2766, 2008 WL 7602163, at *2 (E.D. La. July 8, 2008); Perdomo v.
United States, No. 11-2374, 2012 WL 2138106, at *4 (E.D. La. June 11, 2012); LaShip, LLC v. Hayward
Baker, Inc., 296 F.R.D. 475, 480 (E.D. La. 2013); Kim v. Time Ins. Co., 267 F.R.D. 499, 502 (S.D. Tex.
27 Rea, 2014 WL 4981803, at *2 (citing LaShip, 296 F.R.D. at 480; Fielden v. CSX Transp., Inc., 482 F.3d
866, 871 (6th Cir. 2007); Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir.
2011)). See also Williams v. State, No. 14-00154-BAJ-RLB, 2015 WL 5438596, at *3 (M.D. La. Sept. 14,
28 Salas v. United States, 165 F.R.D. 31, 33 (W.D.N.Y. 1995).
29 Mangla v. Univ. of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996).
The Government seeks to exclude Dr. Trahant’s testimony regarding causation
because, although he was disclosed only as a treating physician, Dr. Trahant relied on
records from other medical providers and, apparently, intends to express his opinion as
to the cause of Ms. Stone’s injuries. The Government argues that this testimony should be
excluded because he failed to provide an expert report as required by Rule 26(a)(2)(B). 30
Rule 37(c) provides “If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” 31 In considering whether a violation of Rule 26(a)
is harmless, and therefore whether an expert’s testimony should be struck, the Court
considers four factors: “(1) the explanation for the failure to identify the witness; (2) the
importance of the testimony; (3) potential prejudice in allowing the testimony; and (4)
the availability of a continuance to cure such prejudice.” 32
With respect to any failure to identify Dr. Trahant as an expert, Plaintiffs contend
Dr. Trahant is properly designated as a treating physician, and does not need to submit
an expert report, because his review of Ms. Stone’s medical records were part of his
treatment and diagnosis. 33 The issue raised by the Government’s motion in limine is
whether Dr. Trahant should be prohibited from opining on the cause of Ms. Stone’s
injuries. 34 Dr. Trahant should have submitted an expert report with respect to his
R. Doc. 66-1.
FED. R. CIV. P. 37(c) (emphasis added).
32 Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (citing Geiserman v.
MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)).
33 R. Doc. 71.
34 See Hooks v. Nationwide Hous. Sys., LLC, No. 15-729, 2016 WL 3667134, at *3 (E.D. La. July 11, 2016)
(“[T]estimony as to causation or as to future medical treatment has been considered the province of expert
testimony subject to the requirements of section (a)(2)(B).”).
causation opinion, but under this scenario, the Court finds such a failure to be harmless. 35
The Government had the opportunity to and did depose Dr. Trahant with respect to his
theory of causation and the extent to which his review of other medical providers’ records
influenced that opinion, 36 thereby reducing any prejudice to the Government.
Because this is a bench trial, the Court will allow Dr. Trahant to testify regarding
causation, as well as his treatment of the Plaintiff. “[A] judge in a bench trial should have
discretion to admit questionable technical evidence, though of course [she] must not give
it more weight than it deserves.” 37 The fact that Dr. Trahant did not submit a report, and
based his opinion regarding causation on other providers’ medical records, will go to the
weight of the evidence. Attacking the basis of Dr. Trahant’s testimony will be left to the
Government’s vigorous cross-examination and presentation of contrary evidence. 38
For the foregoing reasons, IT IS ORDERED that the motion in limine is
New Orleans, Louisiana, this 9th day of May, 2017.
UNITED STATES DISTRICT JUDGE
See FED. R. CIV. P. 37(c).
See R. Doc. 66-3.
37 Thompson v. Rowan Companies, Inc., No. 06-3218, 2007 WL 724646, at *1 (E.D. La. Mar. 6, 2007).
38 The Government relies on this Court’s ruling in Parker v. NGM Ins. Co. No. 15-2123, 2016 WL 3198613
(E.D. La. Jun. 9, 2016). In Parker, defense counsel attempted to convert a treating physician into a retained
expert by showing him other providers’ medical records at his deposition, and asking for an impromptu
opinion. The Court granted the motion in limine and allowed the treating physician to present to the jury
only his opinions with respect to his treatment of the patient and the medical records generated as a result
of his treatment. Because the facts of this case are distinguishable, and most importantly because this case
is set for a bench trial, the Court distinguishes its ruling in Parker.
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