Often times in personal injury cases, plaintiffs will seek to produce a treating physician as an expert witness.  In Federal Court, parties are typically required to serve expert witness disclosure statements for all expert witnesses they expect to call at trial within the timing requirements of the court’s case management order.

In Israeli v. Ruiz, plaintiff claimed to have suffered a severe injury to his foot as a result of an allegedly negligent operation of a forklift.  Shortly before the date of the trial, plaintiff belatedly served an expert witness disclosure statement identifying his treating surgeon as an expert witness.  The defendant moved in limine to preclude or limit the physician’s testimony, as the plaintiff failed to timely disclose its expert in accordance with the court’s case management order.

The court opined that even though plaintiff failed to comply with the expert disclosure rules, “a treating doctor may properly be allowed to testify as to facts and opinions developed during treatment and thus may allow him to offer not merely a narrative of his observation of his patient and treatment, but also his assessment of the patient’s prognosis and causation.”  Furthermore, the court noted that because defendants learned the identity of the plaintiff’s treating surgeon at the outset of the case, and had access to the plaintiff’s medical records, they were not meaningfully prejudiced by plaintiff’s late disclosure.

Defendants should be aware that even where plaintiffs identify treating physicians as experts after the time to do so has expired, courts may still allow the doctor to testify.

Thanks to Jeremy Seeman for his contribution to this post.