Bernabei & Wachtel Blog

Treating Physician as an Expert Witness

A recurring issue is the extent to which the plaintiff's treating health care provider can offer an expert opinion, including expressing an opinion as to the correctness of diagnoses rendered by another physician.

In a personal injury negligence case, the DC Court of Appeals held that it was reversible error to allow such testimony by the plaintiff's witness in a trial that resulted in a verdict for the plaintiff, since that testimony had not been disclosed under Rule 26(b)(4) as expert testimony.

However, as liability was uncontested on appeal, the court remanded for a new trial on damages alone. Incidentally, the appeal took 3.5 years from oral argument to decision.

http://www.dcappeals.gov/dccourts/appeals/pdf/02-CV-1147.PDF

 

Structural Preservation Systems, Inc. v. Petty, No. 02-CV-1147 (D.C. June 21, 2007) (per curiam).

Some excerpts follow:

. . . Pursuant to Super. Ct. Civ. R. 26 (b)(4), a party has the right to discover prior to trial the facts and opinions of an expert "acquired or developed in anticipation of litigation or for trial. . . . " Opinions developed by an expert in the course of a patient's treatment and those developed in preparation for litigation are treated differently under Rule 26 (b)(4). "Insofar as a physician obtains and develops his information and opinions in the course of his treatment of a patient, he becomes an 'actor or viewer' who should be treated as an ordinary witness rather than as an expert covered under Rule 26 (b)(4)." Adkins v. Morton, 494 A.2d 652, 657 (D.C. 1985) (citations omitted); see also Safeway Stores, Inc. v. Buckmon, 652 A.2d 597, 606 (D.C. 1994) (holding that a physician witness was not an expert subject to Rule 26 (b)(4)'s requirements where his opinions were acquired during the course of the patient's treatment).

In determining whether the witness must be disclosed under Rule 26 (b)(4), the focus is not merely on whether the witness has been identified as a treating physician, "but rather on the substance of the testimony." Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993) (citation omitted). Federal courts construing the comparable federal rule have held that a treating physician must be disclosed as an expert where the treating physician's opinion is based upon medical records not viewed in the course of treatment. See id. (holding treating physicians' opinions on standard of care were classic expert testimony formulated for litigation and not for treatment, and therefore, properly excluded for lack of compliance with Rule 26 (b)(4)); Riddick v. Washington Hosp. Ctr., 183 F.R.D. 327, 331 (D.D.C. 1998) (noting that treating physician's opinion on causation and injury would be excluded for noncompliance with Rule 26 (b)(4) if based on review of another health care provider's records for litigation, rather than treatment purposes). Generally, "'[d]ecisions regarding the scope and the conduct of discovery will be reversed only upon a showing of abuse of discretion.'" Hollins v. Federal Nat'l Mortgage Ass'n, 760 A.2d 563, 579 (D.C. 2000) (quoting Dalo v. Kivitz, 596 A.2d 35, 36 n.1 (D.C. 1991)); see also Regional Redevelopment Corp. v. Hoke, 547 A.2d 1006, 1008 (D.C. 1988) ("Whether or not an expert who is not listed in an interrogatory can testify is within the wide discretion of the trial court."). Applying these general principles, we consider Structural's specific claims.

. . . . The question is whether the substance of the opinion is of the type that would be formulated for treatment purposes or prepared in anticipation of litigation. See Patel, supra, 984 F.2d at 218 (citation omitted) (noting that the focus of the inquiry for purpose of determining Rule 26 (b)(4)'s disclosure requirements should be on the substance of that testimony).

Structural argues that Dr. Hartung should not have been allowed to testify that Dr. Kahanovitz's opinion that Petty needed physical therapy was correct. We agree that a treating physician's opinion as to the correctness or incorrectness of another treating physician's opinion tends to be of the type associated with preparation for litigation, rather than simply treating the patient. "[A] treating physician requested to review medical records of another health care provider in order to render opinion testimony concerning the appropriateness of the care and treatment of the provider would be specifically retained notwithstanding that he also happens to be the treating physician." Brown v. Best Foods, 169 F.R.D. 385, 389 (N.D. Ala. 1996) (quoting Wreath v. United States, 161 F.R.D. 448, 450 (D. Kan. 1995), and also citing Patel, supra, 984 F.2d at 218)). Simply because one is a treating physician does not mean that he or she cannot hold opinions arising in the course of a patient's care and treatment and at the same time develop expert opinions solely for purposes of the trial. When the expert does the latter, it appears to be a reasonable requirement that such opinions be disclosed under Rule 26 (b)(4).

Thus, unless relevant to his or her own treatment decisions, a treating physician or other healthcare expert may not testify as to the propriety of decisions and treatment provided by other healthcare professionals, even if the opinion is formulated from materials reviewed during the treatment process. Applying that principle, Dr. Hartung should not have been permitted to testify about the appropriateness of Dr. Kahanovitz's recommendation for physical therapy. Although she reviewed his treatment plan in the process of forming her own approach to treatment, Dr. Hartung's commentary on whether physical therapy was necessary exceeded permissible bounds. Absent some indication that it was necessary for Dr. Hartung to evaluate the reasonableness of Dr. Kahanovitz's care in order to form her own treatment plan, allowing her to testify about the reasonableness of another doctor's treatment has the earmarks of expert testimony that was prepared for litigation purposes. Therefore, absent compliance with the requirements of Rule 26 (b)(4), it should not have been admitted. A similar result obtains with respect to Dr. Hartung's testimony as to the reasonableness of the fees charged for an MRI and physical therapy rendered by others. While she could testify about the reasonableness and necessity of the bills for her own treatment, her testimony about such matters as related to other doctors exceeded the permissible scope of the treating physician exception.

Alan R. Kabat, Bernabei & Wachtel, PLLC

Fourth Circuit decision upholding jury verdict

The Fourth Circuit issued a decision upholding a jury verdict in a Title VII gender discrimination/retaliation case. There's a good discussion of the direct and circumstantial evidence that justified the jury's verdict, and the district court's denial of the employer's motion for judgment. The direct evidence included the company's president saying, "I'm not going to have any lawsuits on my watch," and the manager saying that they hoped a disciplinary letter would force the employee to quit instead of going to the EEOC.

The case was from the Norfolk Division, Judge Raymond Jackson. The appellate decision is by Judge Niemeyer.

http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/061282.P.pdf

 

Depaoli v. Vacation Sales, No. 06-1282 (4th Cir. June 12, 2007).

NIEMEYER, Circuit Judge:

Pamela Depaoli commenced this action against her former employer, Vacation Sales Associates, L.L.C., under Title VII of the Civil Rights Act of 1964, alleging that she was discharged from her position as a sales manager in retaliation for filing a complaint of employment discrimination with the Equal Employment Opportunity Commission, in violation of 42 U.S.C. § 2000e-3(a). A jury returned a verdict in favor of Depaoli, awarding her $7.7 million for compensatory damages, backpay, and punitive damages. The district court, applying the statutory cap on damages, awarded Depaoli compensatory and punitive damages of $200,000; acting in equity, recalculated backpay and awarded Depaoli backpay of $208,708; and awarded her attorneys fees and costs of $239,865.38.

On appeal, we modify the awards of backpay and attorneys fees and, as so modified, affirm the judgment of the district court.

. . . Vacation Sales centers its argument on the contention that the evidence was insufficient for a reasonable jury to conclude that Vacation Sales' proffered reason for terminating Depaoli was merely a pretext for the alleged retaliation. We have little doubt, however, in concluding that the jury heard sufficient evidence to support its finding that the reason given for firing Depaoli was a pretext.

First, Cynthia McLachlin, a former Vacation Sales sales associate, testified that in March 2002, soon after Depaoli made her initial contact with the EEOC, McLachlin overheard a speaker-phone conversation between President Faulkner and Vice President Georgitsis. She testified that Faulkner said to Georgitsis, "I'm not going to have any lawsuits on my watch." After Faulkner hung up, Georgitsis shared with McLachlin a letter to Depaoli that required her to meet for supervision. McLachlin told Georgitsis that the required meeting would humiliate Depaoli who would rather quit than submit to the letter's terms, and Georgitsis responded, "That's what we are hoping she does for going to the EEOC; [Faulkner] doesn't want her here any longer." Second, Sandra Williams, a former Vacation Sales manager, testified that sometime after Depaoli was removed, Williams told Georgitsis that she contemplated filing a complaint with the EEOC because of another co-worker's actions. Georgitsis replied to Williams, "You don't want to do that. . . . You will end up like Pam Depaoli."

Third, Depaoli testified that in June 2003, upon returning from a leave of absence to discover that a position she desired had been filled, Georgitsis told her that "if [she] didn't start an investigation with the EEOC, [she] would have gotten that in-house director position."

In addition to this direct evidence of Vacation Sales' motives for removing Depaoli, the jury also heard evidence of actions Vacation Sales employees took to dampen Depaoli's Average Per Guest figures after Depaoli had contacted the EEOC in March 2003. For example, Victoria Headden, a former Vacation Sales receptionist responsible for assigning tours to sales associates, testified that in March 2003, sales managers began "cherry picking" likely purchasers out of group tours, even though those tours (and purchasers) were supposed to be handled by a different manager. Headden testified that Georgitsis told her to permit only certain managers to engage in "cherry picking," and Depaoli was not one of them. Also, Headden testified that in April 2003, Georgitsis directed her to assign unsuccessful group tours to particular sales associates, and to assign a higher proportion of those unsuccessful tours to members of Depaoli's team.

Finally, the sharp drop in Depaoli's Average Per Guest - falling from 1,228 in March 2003 to 467 in April 2003, the month after she filed her complaint with the EEOC - provided circumstantial evidence that the conduct of Vacation Sales' management did effect a drop in Depaoli's sales figures.

Alan Kabat, Esquire, Bernabei & Wachtel PLLC

D.C. Circuit, patient-psychotherapist privilege

An interesting DC Circuit decision by Chief Judge Ginsburg, joined by Judges Kavanaugh and Brown, holding that if the plaintiff does not seek damages for emotional stress, the employer cannot seek confidential records from the psychotherapist, even though the plaintiff's complaint acknowledges that the plaintiff suffered from depression.

Some excerpts follow:

Koch v. Securities and Exchange Commission, No. 06-5134 (D.C. Cir. June 15, 2007)

http://pacer.cadc.uscourts.gov/docs/common/opinions/200706/06-5134a.pdf

GINSBURG, Chief Judge:

Randolph Koch sued his employer, the Securities and Exchange Commission, under the Civil Rights Act of 1964, the Americans with Disabilities Act, the Rehabilitation Act, and the Age Discrimination in Employment Act. When the SEC then attempted to serve a subpoena for confidential records relating to communications between Koch and his psychotherapist, Koch moved to quash the subpoena. The district court denied the motion on the ground that Koch, by placing his mental state in issue, had impliedly waived the psychotherapist-patient privilege. The court ordered Koch's psychotherapist to produce confidential records and ordered Koch to make her available for a deposition. Koch appeals, arguing he did not waive the psychotherapist-patient privilege and therefore his communications with his therapist are privileged and not discoverable. We agree and hence reverse the order of the district court.

. . . Before this court it is perfectly clear, even if it was not before the district court, that Koch has abandoned any claim the district court may have thought he made for damages due to emotional stress. That does not, however, moot the district court's decision and the SEC's argument that Koch put his mental state in issue by acknowledging he suffers from depression. We therefore must decide whether a plaintiff puts his mental state in issue in such a way as to waive the psychotherapist-patient privilege by acknowledging he suffers from depression.

. . . We are aware of only two cases in the federal courts of appeals addressing the question whether a party has waived the psychotherapist-patient privilege. See Doe v. Dairy, 456 F.3d 704 (7th Cir. 2006); Schoffstall v. Henderson, 223 F.3d 818 (8th Cir. 2000). Both were Title VII cases in which the plaintiff sought recovery for emotional distress. In Doe v. Dairy the Seventh Circuit stated without unnecessary elaboration: "If a plaintiff by seeking damages for emotional distress places his or her psychological state in issue, the defendant is entitled to discover any records of that state." 456 F.3d at 718. In Schoffstall, the Eighth Circuit said only that it found "persuasive" certain district court cases concluding that, just as a client waives the attorney-client privilege when he "places the attorney's representation at issue, a plaintiff waives the psychotherapist-patient privilege by placing his or her medical condition at issue" when he or she makes a claim for emotional distress. 223 F.3d at 823.

. . . Accordingly, we hold that a plaintiff does not put his mental state in issue merely by acknowledging he suffers from depression, for which he is not seeking recompense; nor may a defendant overcome the privilege by putting the plaintiff's mental state in issue. A plaintiff who makes no claim for recovery based upon injury to his mental or emotional state puts that state in issue and thereby waives the psychotherapist-patient privilege when, consistent with the Supreme Court's analogy in Jaffee, 518 U.S. at 10-11, he does the sort of thing that would waive the attorney-client privilege, such as basing his claim upon the psychotherapist's communications with him, see, e.g., Mueller & Kirkpatrick, Evidence at § 5.30; or, as with the marital privilege, "selectively disclos[ing] part of a privileged communication in order to gain an advantage in litigation," Lavin, 111 F.3d at 933 (citation omitted). . . .

III. Conclusion

Because the district court erred in concluding Koch waived the psychotherapist-patient privilege, either impliedly or expressly, the orders of the district court denying Koch's motion to quash and compelling Aron to testify and produce documents relating to her treatment of Koch are Reversed.

Alan R. Kabat, Bernabei & Wachtel PLLC

Supreme Court grants cert on discrimination evidence case

Today (June 11, 2007), the Supreme Court granted certiorari to the employer in Sprint/United Management Co. v. Mendelsohn, No. 06-1221, an ADEA case from the Tenth Circuit. That court had reversed the district court's exclusion of evidence from other employees who also alleged that they were discriminated against during a RIF. The Tenth Circuit's decision was a split decision, and the employer has now successfully obtained further review by the Supreme Court.

The employer is represented on appeal by Paul Cane of Paul Hastings (San Francisco), and the employee by Dennis Egan, a long-time NELA member in Kansas City.

Some excerpts from the Tenth Circuit's opinion follow, to indicate the issues are on appeal:

http://www.ca10.uscourts.gov/opinions/05/05-3150.pdf

05-3150, Mendelsohn v. Sprint/United Management Co. (10th Cir. Nov. 1, 2006)

Plaintiff Ellen Mendelsohn sued her former employer Defendant Sprint/United Management Company (Sprint), alleging Sprint unlawfully discriminated against her on the basis of age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. Mendelsohn alleged she was selected for termination on account of her age during a company-wide reduction in force (RIF). After a trial on the merits, a jury returned a verdict for Sprint. At issue in this appeal is whether the district court erred in excluding testimonial evidence from former Sprint employees who alleged similar discrimination during the same RIF. We have jurisdiction under 28 U.S.C. § 1291. Because the evidentiary exclusion deprived Mendelsohn of a full opportunity to present her case to the jury, we conclude the district court abused its discretion in excluding the evidence. We reverse and remand for a new trial.

I.

Mendelsohn worked for Sprint from 1989 until November 2002, when Sprint terminated her as part of an ongoing company-wide RIF. At the time, Mendelsohn was fifty one years old and the oldest manager in her unit. Mendelsohn brought her claim under the ADEA alleging Sprint selected her for the RIF based on her age. As evidence of Sprint's alleged discriminatory animus toward older employees, Mendelsohn sought to introduce evidence that Sprint terminated five other employees over the age of forty as part of the same RIF. These employees apparently believed they too were victims of age discrimination. Through their testimony as well as her own, Mendelsohn sought to introduce evidence of a pervasive atmosphere of age discrimination at Sprint.

Prior to trial, Sprint filed a motion in limine seeking to exclude, among other things, any evidence of Sprint's alleged discriminatory treatment of other employees. Relying exclusively on Aramburu v. The Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997), Sprint argued any reference to alleged discrimination by any supervisor other than Paul Reddick, Mendelsohn's supervisor, was irrelevant to the issue in this case-i.e. whether Mendelsohn's age motivated Sprint to terminate her. Apparently persuaded by Sprint's argument, the district court granted the motion in part without much explanation, and limited Mendelsohn's evidence to "Sprint employees who are similarly situated to her." To prove the employees were "similarly situated," the district court required Mendelsohn to show Reddick supervised the employees and Sprint terminated them in close temporal proximity to Mendelsohn's termination. Because Reddick did not supervise any of the other employees Mendelsohn sought to place on the stand, the district court excluded their testimony at trial. Following the court's in limine ruling, Mendelsohn submitted in writing a proper offer of proof.

. . . We have previously recognized the testimony of employees, other than the plaintiff, concerning how the employer treated them as relevant to the employer's discriminatory intent. See Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990). For example, in Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996), and Bingman v. Natkin & Company, 937 F.2d 553 (10th Cir. 1991), we recognized evidence the employer had terminated other older employees was relevant as evidence of a pattern of dismissal based on age. Similarly, in Coletti v. Cubb Pressure Control, 165 F.3d 767, 776 (10th Cir. 1999), we found testimony of other employees regarding how defendant treated them relevant to the defendant's discriminatory intent where "testimony establishes a pattern of retaliatory behavior or tends to discredit the employer's assertion of legitimate motive." . . .

TYMKOVICH, Circuit Judge, dissenting.

I respectfully dissent because I do not believe the district court abused its discretion in its evidentiary rulings excluding testimony. At the outset, I agree that the district court's ruling is difficult to decipher, especially looking solely at the minute order. In the context of the trial, however, I think the court's ruling is clear enough-the proffered testimony from other employees failed to satisfy the relevancy and prejudice requirements of Rule 403. Moreover, I believe the majority makes a mistake in holding that testimony from other employees not similarly situated is admissible even where the plaintiff has made no independent showing of a company-wide policy of discrimination.

Alan R. Kabat