Wilks v. BNSF Railway Company
ORDER by Magistrate Judge Kimberly E. West denying 141 Motion in Limine. (adw, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
BNSF RAILWAY COMPANY,
Case No. CIV-18-080-KEW
O R D E R
This matter comes before the Court on Defendant’s First Motion
in Limine (Docket Entry #141).
Defendant seeks to preclude
treating physicians from offering medical causation and expert
opinions into evidence at trial without having first prepared an
expert report in accordance with Fed. R. Civ. P. 26.
As indicated by Plaintiff, the applicable rule has been
modified in recent years to differentiate between those witnesses
“retained or specially employed to provide expert testimony in the
case . . .” and, therefore, who are required to file an expert
report and those who are “not required to provide a written report”
subject to certain disclosures.
Fed. R. Civ. P. 26(a)(2)(B) and
identified as Plaintiff’s treating physicians.
The identity of
the particular physicians is somewhat unclear since the motion
references three such physicians (Dr. Stauffer, Dr. Rodgers, and
Dr. Lee), Plaintiff’s response mentions four physicians (Dr. Lee,
Dr. Stauffer, Dr. Martucci, Dr. Rodgers), and Defendant’s reply
references a slightly different four physicians (Dr. Stauffer, Dr.
Rodgers, Dr. Pettingell, and Dr. Lee).
The proposed Amended
Pretrial Order submitted to this Court by the parties indicates
Plaintiff intends to call as treating physician witnesses at trial
Dr. Thomas Lee, Dr. James Stauffer, and Dr. James Rodgers.
synopsis for each of these physicians’ testimony at trial includes
a statement that “[The physician] will offer opinions regarding
causation, prognosis, and the effects of the subject injury on
The Court in Wright v. BNSF Ry. Co., 2016 WL 1183135 (N.D.
Okla. Mar. 28, 2016) correctly sets out the parameters for treating
The Court stated:
A treating physician is not considered an
expert witness if he or she testifies about
observations based on personal knowledge,
including the treatment of the party.” Davoll
v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999).
A treating physician's testimony may include
opinions regarding “ ‘prognosis, the extent of
present and future disability, and the need
for future medical treatment,’ ” so long as
the opinions are based on the physician's
personal knowledge gained from the care and
treatment of the plaintiff. Adrean v. Lopez,
2011 WL 6141121 (N.D. Okla. Dec. 9, 2011)
(quoting Goeken v. Wal-Mart Stores, Inc., 2001
WL 1159751, at *3 (D. Kan. Aug. 16, 2001)).
The testimony may also extend to opinions on
causation, but only “to the limited extent
that opinions about the cause of an injury are
a necessary part of a patient's treatment.”
Starling v. Union Pac. R. Co., 203 F.R.D. 468,
479 (D. Kan. 2001); see also Richard v.
Hinshaw, 2013 WL 6709674, at *2 (D. Kan. Dec.
18, 2013) (“[M]atters within the scope of
[treating physician's] treatment may include
opinions about causation, diagnosis, and
prognosis”); Trejo v. Franklin, 2007 WL
2221433, at *1 (D. Colo. July 30, 2007)
(stating that “treating physician opinions
regarding causation and prognosis based on
examination and treatment of the patient” are
proper under Rule 26(a)(2)(C)).
Id. at *2.
As a result, the treating physicians identified by Plaintiff
were not required to file an expert report in order to testify.
Moreover, the only basis upon which they may testify as to the
causation of Plaintiff’s injuries for which she received treatment
from the testifying treating physicians is if the determination of
causation was integral to their treatment or was evident from their
treatment of Plaintiff. These witnesses have been deposed by BNSF.
information obtained at their deposition or in preparation for
pertained to or was derived from their treatment of Plaintiff.
Plaintiff in order to ascertain the appropriate treatment for
Plaintiff, the testimony may be admissible.
Finally, of course if
the treating physician is solicited for a causation opinion by
BNSF’s counsel such as in the case of Dr. Rodgers’ deposition,
BNSF will have opened the door for any such opinion testimony to
be presented to the jury.
Based upon these guidelines, the motion
should be denied at this time because it is possible that causation
opinion testimony from the treating physicians will be admissible
IT IS THEREFORE ORDERED that Defendant’s First Motion in
Limine (Docket Entry #141) is hereby DENIED.
IT IS SO ORDERED this 31st day of March, 2021.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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