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IN THE UNITE' STATES DISTRICT COURT FOR THE EASTE,~ DISTRICT OF PENNSYLVANIA CRYSTAL GRIGGS Plaintiff, CIVIL ACTION NO. 14-6226 FILEr OCT 7 7 2018 • 4 SEPTA, et al., Defendants. I MEMORANDUIM RE: MOTION IN LIMINE RE: PSYCHOLOGIST TESTIMONY Baylson, J. I. October 17, 2016 Introduction The facts of this employment disci imination action have been amply documented in prior opinions of this Court, see,~. Griggs v.I SEPTA, No. CV 14-6226, 2016 WL 4055050 (E.D. Pa. July 28, 2016), so only the facts relevLt to the resolution of the instant motion are set out below. On August 25, 2016, Southeast1 Pennsylvania Transportation Authority ("SEPTA") and former SEPTA employee Luther Dig~s (together with SEPTA, "Defendants") file a Motion in Limine, seeking to preclude the testimty of Maria Rayias, Ph.D., plaintiff Crystal Griggs' ("Plaintiffs") treating psychologist, whonj1 she intends to call at trial. (Defendants' Motion in Limine ("Defs. Mot."), ECF 36). Plaintiflfiled an opposition to Defendants' Motion on September 9, 2016. (Plaintiffs Opposition to Defendants' Motion in Limine ("Pl. Opp."), ECF 37). Defendants argue that Plaintiff should be precluded from offering causation and prognosis testimony from Dr. Rayias beca se "Dr. Rayias is not offered as an expert witness," and "if a treating professional intends to tejstify to the cause of the plaintiffs alleged injuries, he or she must be qualified as an expert." (D, fs. Mot. at 3). Plaintiff contends that her testimry should not be limited because "[t]reating physicians and mental health providers are generall excused from preparing a Rule 26 written report," and are permitted to "testify to the opinions rmed during the course of caring for the patient." (Pl. of her treatment" - that is, beyond "her d~agnosis of Plaintiffs conditions and the course of treatment she undertook in treating Plain~r!iJiff for these conditions"-Dr. Rayias' testimony should not be limited to the extent it bears on calsation. (Id.). On September 27, 2016, the Cou t held a recorded telephonic conference during which the parties clarified their respective positions. Specifically: • Defendants contend that s ·nee Plaintiff did not submit an expert report regarding causation, Dr. Rayias' testrimony may not include causation and must be limited to diagnosis; and • Plaintiff explained that shel does not intend to specifically ask Dr. Rayias to testify about causation. Rather, c ausation will only be offered to the extent it is relevant 1 to Dr. Rayias' diagnosis itd her recommended course of treatment. On September 29, 2016, Defendarrs, with the Court's permission, submitted a letter pointing the Court to any precedential authority in the Third Circuit that addressed the key issue in dispute: whether Dr. Rayias-as a treat,ing psychologist but not an expert witness-may offer causation testimony to the extent that it inlforms her diagnosis and course-of-treatment testimony. For the reasons that follow, Defenfants' Motion in Limine shall be granted in part and denied in part. Specifically, Dr. Rayias w]lll be permitted to testify about causation only to the extent that her opinion regarding causatiom was acquired directly through her diagnosis and treatment of Plaintiff. 2 II. Discussion Litigants who intend to have a w11tness provide expert testimony must disclose the identity of the witness and, if the witnes1 was "retained or specially employed to provide expert testimony," must also provide a written ~xpert report. Fed. R. Civ. P. 26(a)(2)(A)-(B). While treating physicians are generally exemptrd from the rule requiring an expert report when testifying "based on their examination, diagnosis and treatment of a patient, they are still required to comply with the disclosure rruirement if they wish to offer testimony that is expert in nature. See McCann v. Miller, Fed. Aipp'x 163 (3d Cir. 2012) (holding that notwithstanding any uncertainty about the applicability olRule 26(a)(2)(B) to treating physicians, the plaintiff "had no justification for failing to disclor that he intended to have the treating physician offer expert testimony. Rule 26(a)(2)(A) unarnbiguously requires that disclosure."). Since Plaintiff neither disclosed the identity of Dr. RayiL by the Court's deadline of February 15, 2016 (see ECF 14), nor submitted an expert report, Dr. Rayias may not offer testimony that is expert in nature. In the Third Circuit, a treating phrician's testimony is considered expert testimony if it is "based on scientific, technical, or othe~I specialized knowledge within the scope of Rule 702." Fed. R. Evid. 702; see Hadley v. Pfizer Inc., No. CIV.A 08-1440, 2009 WL 1597952, at *4 (E.D. Pa. June 5, 2009). It is well settled that ttating physicians who do not qualify as experts are still permitted to offer testimony "based on thr examination, diagnosis and treatment of a patient." Mracek v. Bryn Mawr Hosp., 610 F. Sup! 2d 401, 406 (E.D. Pa. 2009), affd, 363 F. App'x 925 (3d Cir. 2010). Less settled is whether an to what extent testimony regarding "examination, diagnosis and treatment" can include so-c, lled causation testimony. For sure, a party may not "circumvent Rule 26's requirements bye 11ploying a physician who treated an injured party to 3 provide testimony extending beyond sim[ply the care of the plaintiff to classic expert opinion regarding causation[.]" Lauria v. Nat'l R.R. Passenger Corp., No. CIV. A. 95-1561, 1997 WL 138906, at *2 (E.D. Pa. Mar. 24, 1997), !lffd, 145 F.3d 593 (3d Cir. 1998) (citations omitted). To test this, courts consider "whether th treating physician acquired his opinion as to the cause of the plaintiffs injuries directly through his treatment of the plaintiff." Id. Most courts in this Circuit hold tftat causation testimony goes beyond the scope of what a treating physician learns in the course offhis diagnosis and treatment because it is "presumably .. . based on scientific, technical, or other si~ecialized knowledge within the ken of an expert." Damiani v. Momme, No. CIV.A. 11-2531. 2012 WL 1657920, at *4 (E.D. Pa. May 11, 2012); see Miller, Fed. App'x at 172 (affirming istrict court's decision to exclude causation and information they received from their patit.,nts, the extent of their examination and their diagnosis."); Allen v. Parkland School Dilst, 230 Fed. App'x (3d Cir. 2007) (holding district court did not abuse its discretion by prohibiting treating physician from offering "expert causation testimony based on facts that went beyond his treatment," and permitting him to testify regarding "his diagnosis of the Plaintiff. . and [how] that diagnosis was reached at the time those reports were authored."); cf. Pease v. Lycoming Engines, No. 4:10-CV-00843, 2012 WL 162551, at *12 (M.D. Pa. Jan. 19, 2012) ([holding that "[a] treating physician is not necessarily retained or specially employed to provide expert testimony simply because he or she proffers on causation and prognosis" because, among other reasons, "doctors may need to determine the cause of an injury in order to treat it.") (in emal citations omitted). This is considered particularly true when the causal connection that is being drawn is not an "obvious" one. See Cabrera v. Ross Stores of Pennsylvania, LP, 646 Fed. App'x 209 (3d Cir. 4 2016) (affirming district court's exclusicm of expert testimony and noting that "expert testimony was necessary to establish the causation element of [the plaintiffs] suit" because "the passage of time ... meant that the case was not on in which there was an obvious causal relationship between the accident and her injury"). In Bushman v. Halm, 798 F.2d 651 (3d Cir. 1986), the Third Circuit specifically noted that an "obvious" causal relationship does not exist in the context of "conditions such a psychiatric illnessr[,] which cannot be said to be clearly related to the type of injury originally claimed to have been sustained." Unlike with mental illness, the Court continued, "there is no alleged injury or condition which would not logically flow from" a motor vehicle accident. Id. In the present case, Plaintiff argTs that she "does not intend to offer testimony of Dr. Rayias outside the course of her treatmer of the Plaintiff, which would include the history she received from Plaintiff or any other persr regarding the health issues presented by Plaintiff, her diagnosis of Plaintiffs conditions and thf,e course of treatment she undertook in treating Plaintiff for these conditions." (Pl. Opp. at 3). A Plaintiff reiterated at the teleconference, she wishes to solicit causation testimony from Dr. Rayias only to the extent that it bears on her diagnosis and treatment of Plaintiffs condition. Dr. Rayias is a psychologist, not a physician and not a psychiatrist, and her testimony will relate to Plaintiffs mental health. There are few case precedents for psychologists giving testimony relating to a plaintiffs mental ~;ondition, and allowing it. In Cacciavillano v. Ruscello, I Inc., 1996 WL 612825, at *2 (E.D. Pa. li916), the plaintiff had specified a psychotherapist as a testifying expert, which the court approvr. Similarly, in Ferris v. Pennsylvania Fed'n Bhd. Of Maint. of Way Employees, 153 F. Supp. l2d 736, 741-42 (E.D. Pa. 2001), the Court allowed a psychologist to testify to her psychologic 1 diagnosis, but it appears in this case also that plaintiff 5 had presented an expert report prepared y the psychologist. In this case, as noted above, plaintiff has not presented an expert rep rt concerning Dr. Rayias, and disclaims any intention of offering an expert opinion on causation. Nonetheless, Dr. Rayias has acquired knowledge regarding factors which led to Plaintiffs condition, directly through her treatment of Plaintiff and she will be entitled to testify to those· factors notwithstanding her ineligibility to offer an expert opinion regarding causation. III. Conclusion For the reasons outlined above, e preclude Dr. Rayias from offering expert causation testimony, but not from offering testimorl1y learned directly through her diagnosis and treatment of Plaintiff. The Court acknowledges that it cannot, at this point, conclusively determine whether Dr. Rayias' testimony will cross this somewhat hazy line. To the extent necessary, the Court will determine whether Dr. Rayias is impermissibly offering expert causation testimony at the time of trial. O:Vessica.2016\14-cv-6226 Griggs v. SEPTA\Memo Re Mot on in Limine on Pyschologist.docx 6

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