Though generally straightforward, the expert disclosure provisions of Rule 26 do contain “gray” areas with respect to which counsel should be alert.  For instance, parties must disclose the identity of all witnesses they might use at trial to present evidence under Rules 702, 703 or 705 of the Federal Rules of Evidence.  Fed. R. Civ. P. 26(a)(2)(A).  If such a witness either is retained or specially employed to provide expert testimony, or if the witness’s job duties as a party’s employee regularly involve giving expert testimony, the disclosing party also must provide a written report prepared and signed by the expert containing certain information specified in Rule 26(a)(2)(B).  Whether and to what extent the report requirement applies to a non-retained witness who also happens to qualify as an expert on some topic, a so-called “hybrid” witness, is not as clear.

The 1993 Advisory Committee Notes to Rule 26 do not provide much guidance.  They note that the report requirement of Rule 26 “applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony.”  Id. advisory committee’s notes (subdivision (a)(2)).  Thus, a “treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report.”  Id.  What is not as clear, though, are the topics on which a non-retained witness who otherwise could provide expert opinion testimony (such as a treating physician), but who did not prepare a Rule 26 report, may testify at trial.

Courts do not agree on this point.  Some hold that a hybrid witness who did not prepare an expert report may testify only as to those matters on which they are testifying as a fact witness.  E.g., Bynum v. MVM, Inc., 241 F.R.D. 52, 54 (D.D.C. 2007) (holding that a treating physician “‘may describe what she has seen, describe and explain her diagnosis and the treatment she prescribed’” but without a Rule 26 report “‘a treating physician may not testify as to issues of causation, foreseeability, prognosis, and permanency.’” (further citations omitted)).

Other courts hold that a report under Rule 26 is not required if the witness’s proposed opinion testimony, regardless of its substance, arises solely from the witness’s personal knowledge.  E.g., Martin v. CSX Transp., Inc., 215 F.R.D. 554, 557 (S.D. Ind. 2003) (“a physician ‘whose proposed opinion testimony will come from his knowledge acquired as a treating physician, is not someone from whom a Rule 26(a)(2)(B) report is required.’” (further citation omitted)).

Still other courts hold that no report is required from a hybrid witness, regardless of the nature of the opinion testimony they will provide, if they were not “retained or specially employed” to provide expert testimony.  E.g., Denson v. Northeast Ill. Regional Commuter Railroad Corp., No. 00 C 2984, 2003 WL 1732984 at *1 (N. D. Ill. Mar. 31, 2003) (“There is no indication that any of the three treating physicians from whom plaintiff may elicit expert opinions was retained or specially employed for that purpose.  Therefore, the report requirement does not apply for their testimony.”).

Though hybrid witness issues most often arise with respect to testimony from treating physicians, they also plainly can arise in other contexts as well.  See, e.g., St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 246 F.R.D. 56, 59 (D.D.C. 2007) (allowing a hybrid witness to testify as to “information gained in his role as Executive General Adjuster with respect to the incident in question” but not to “offer his independent opinions regarding causation, or damages assessments made either after litigation commenced or independent of his assessment of damages as a function of his job as an insurance adjuster”).

Until the law on the issue settles there are some practical steps counsel should take to address hybrid witnesses:

(1)       Make sure that the witness really is a “hybrid” witness.  The fact that the witness happens to be a treating physician, for instance, might not be the end of the analysis.  See, e.g., Kirkham v. Societe Air France, 236 F.R.D. 9, 12-13 (D.D.C. 2006) (noting that a treating physician may be “retained or specially employed” under Rule 26 and thus an expert from whom a report is required if, among other things, they base opinions on something other than their own examination of the party such as the medical records of another physician or if they are compensated or expect compensation for their time preparing to testify);

(2)       Know the court’s local rules.  Some courts reduce the uncertainty on the issue by addressing certain hybrid witness questions via local rules.  See, e.g., N.D. Miss. and S.D. Miss. Uniform R. 26.1(A)(2)(d) (“A party shall designate treating physicians as experts pursuant to this rule, but is only required to provide the facts known and opinions held by the treating physician(s) and a summary of the grounds therefor.”);

(3)       Determine whether the judge handling the matter has an individualized “chamber” rule or standing order providing guidance with respect to hybrid witnesses.  E.g., Sowell v. Burlington Northern and Santa Fe Ry. Co., No. 03 C 3923, 2004 WL 2812090 at *1 (N.D. Ill. Dec. 7, 2004) (“This court maintains a Standing Order regarding the disclosure of testimony by treating physicians, which provides in relevant part: . . .  Testimony by a treating physician as to causation or prognosis or future impact of the condition or injury is subject to the report requirement of Rule 26(a)(2)(B).” (emphasis in original)); and

(4)       If issues concerning hybrid witnesses are evident at the beginning of the case, consider addressing them at the pre-trial conference stage of the litigation.

As always, if you have any thoughts, questions, comments or suggestions on this topic or for making this a more useful resource, please feel free to contact me directly.

Sincerely,
Patrick J. Kenny
Editor-in-Chief
DRI Daubert Online
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